Opinion
November 1811.
The fact that the Indian title had not been extinguished at the date of the Constitution of 1796, did not prevent the operation of the occupant and pre-emption right secured to residents on the land by that instrument.
Writ of error from the Circuit Court of Blount County. —
The record shows that Gamble had entered this caveat; that these facts were found by a jury; to wit, that Gamble was living on the land in dispute, on the 6th day of February, 1796; that George settled upon it the last of February, or first of March, 1796, and that the land, at that time, lay within the Indian boundary; and that it lies south of French Broad and Holston, and between the rivers Tennessee and Big Pigeon; that the Circuit Court had given judgment in favor of Gamble, from which judgment the writ of error is taken.
The ground relied upon to show that the Court erred is this, — that on the sixth day of February, 1796, when the Constitution was framed, this land was secured by treaty to the Indians; and that the framers of our Constitution could not have intended to give a preference where it was unlawful to settle.
We are all of opinion that the Circuit Court, upon this point, did not err.
The words of the Constitution are: "That the people residing south of French Broad and Holston, and between the rivers Tennessee and Big Pigeon, are entitled to the right of occupancy and pre-emption within that tract." These words are, in themselves, sufficiently extensive to include all those settled in that country and within this State. Why are they to be restrained to the land to which the Indian title was extinguished? Because, say the counsel, the State had no right to the land within the Indian country, and therefore could not intend to give preference there. This argument proves too much; if correct, it would show that no preference, south of French Broad and Holston, was intended. What is now Tennessee was once a part of North Carolina; in the year 1789, it was ceded by that State to the United States; in that cession a provision is made that all the warrants and claims of individuals against North Carolina should be satisfied; but some of those warrants or claims could, consistent with the laws of North Carolina, be satisfied out of land south of French Broad and Holston, and west of Big Pigeon rivers. After those claims were satisfied the vacant land was to belong to the United States; of course Tennessee, having no right to any of the land on that tract, could not, according to the argument give any preference, and therefore this constitutional provision will mean nothing. This argument cannot be sound. We must put such construction upon the words as will give them operation.
In the Constitution of Tennessee we find the bounds of the State specified. This Constitution was to be submitted to the Congress of the United States; and they were to suffer Tennessee to become a member of the Union, according to this Constitution or not. It is conceived reasonable to suppose that, as the convention were aware that the United States would ultimately have the disposal of the vacant land within the State of Tennessee, if they could insert in this Constitution a provision beneficial to the citizens of Tennessee, when Congress sanctioned this Constitution they would thereby stand pledged to give this preference when they came to dispose of the vacant land; hence in the Constitution they use terms sufficiently extensive to embrace every one at that time settled between these rivers.
Since the formation of that Constitution, the Indian title to this land has been extinguished. By a compact with the United States, Tennessee owns this soil. In that compact, provision is made for those occupants co-extensive with the constitutional provision. By the Act of Assembly of this State, passed in 1806, all those occupants provided for by the Constitution are to be permitted to obtain their patents. After all this the Court would be going too far, either to destroy or narrow this constitutional provision. As it appears Gamble was in possession when the Constitution was framed, and he comes fairly within the words and spirit of the Constitution, he ought to have the preference. The decision of the Circuit Court must be affirmed.