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MVB Senate report on the petition of the New England Mississippi Land Company, 11 February 1823


Mr. Van Buren, from the Committee on the Judiciary, to which was referred a petition of the Massachusetts Directors of the Association called the New England Mississippi Land Company, made a detailed report thereon, adverse to the prayer of the petition; which was read, and ordered to be printed.

The report is as follows:

That, by an act of Congress, dated March 31, 1814, entitled "An act providing for the indemnification of certain claimants of public land in the Mississippi Territory," it is enacted, that every person or persons claiming said land, who have exhibited their claim to the Secretary of State, "shall be allowed until the first Monday in January next, to deposite, in the office of the Secretary of State of the United States, a sufficient legal release of all such claim or claims, to the United States, and an assignment and transfer to the United States, of their right and claim to any sum of money," paid into the Treasury of the State of Georgia, as a consideration for the purchase of the land released, with a power to recover the same; "such release, assignment, transfer, and power, to take effect, on indemnification of such claimants being made, conformably to the provisions of this act."

And the Secretary of State, Secretary of the Treasury, and the Attorney General of the United States, for the time being, were thereby constituted and appointed a Board of Commissioners, "and fully authorized and required to adjudge and determine upon the sufficiency of the release, and assignments, and powers, to be executed and deposited in the office of the Secretary of State; and also to adjudge, and finally to determine upon, all controversies arising from such claims so released as aforesaid, which may be found to conflict with, and be adverse to, each other; and, also, to adjudge and determine upon all such claims, under the aforesaid act, or pretended act, of the State of Georgia, as may be found to have accrued to the United States by operation of law."

By the act aforesaid, the President was authorized and required to cause to be issued, from the Treasury of the United States, to such claimants, respectively, certificates of stock, payable out of moneys arising from the sale of said public lands; and among other companies, to the person claiming in the name, or under the Georgia Mississippi Company, under the like terms and restrictions, a sum not exceeding, in the whole, one million five hundred and fifty thousand dollars:

"Provided, That any person having claims under either of said companies, and entitled to indemnity by virtue of this act, shall receive such indemnity only in proportion to the amount of such claim."

By an act of Congress supplementary to the above, dated 23d January, 1815, the President was authorized, by and with the advice of the Senate, to appoint three fit and disinterested persons to be and act as commissioners, by virtue of said first-mentioned act, in the place of the public officers therein mentioned. The said persons were constituted and appointed a Board of Commissioners; which board was "declared to be intended to effect the same purposes and services as the said original board," and was thereby "authorized to execute all the powers granted to, and directed to perform all the duties enjoined upon, the original Board of Commissioners, according to the intent and provisions of the act aforesaid."

In pursuance of the said last-mentioned act, Thomas Swan, Francis S. Key, and John Law, of the District of Columbia, were duly appointed commissioners to perform said service; and from the decree herewith exhibited, and from the case of Brown against Gilman, decided in the Supreme Court of the United States, and reported in 4th volume of Wheaton's Reports, it doth appear, that the Georgia Mississippi Company, mentioned in said act, sold and conveyed to certain persons in New England, all the land which had acquired by said act, or pretended act, of the State of Georgia, estimated to contain eleven millions three hundred and eighty thousand acres, at and after the rate of ten cents per acre; two cents of which were paid in money, and the residue by notes of the purchasers, payable in successive years, with approved endorsers. The deed of conveyance, in due form of law, was made to the purchasers, and placed in "escrow" for a short time, on payment of the money, and reception of notes, with endorsers satisfactory to the vendors, said deed was duly delivered to the purchasers, who formed the association above mentioned, and conveyed their respective shares in said land to the trustees of said New England Mississippi Land Company, who were authorized to issue negotiable certificates, or scrips, so called, declaring the possessor thereof to be entitled to the proceeds of the quantity of land therein mentioned. The said trustees of the New England Mississippi Land Company, and directors thereof, petitioners as aforesaid, in pursuance of said act of indemnification, made proper releases and assignments of all right and claim to said land, and money in the treasury of Georgia, to the United States, and deposited the same in the office of the Secretary of State, as required by said act, and presented a claim for indemnification for the whole of said land, amounting, by said act, to one million five hundred and fifty thousand dollars.

The Georgia Mississippi Company, above named, presented a claim to said commissioners for indemnifications to the amount of 957,600 acres, part of said land sold by them as aforesaid, equal to one hundred and thirty thousand four hundred and twenty-five dollars and twelve cents, (say $130,425 12,) in consequence of certain unpaid notes they possessed, given in part for the purchase of said land, amounting to ninety-five thousand seven hundred and sixty dollars, (say $95,760;) which claim of said Georgia Mississippi Company, was opposed by said New England Company, none of which members were indebted on said notes; the sale of said land by the said original purchasers or parties to said notes having been made soon after they acquired the title as above, their assignees being members of the company. The said commissioners, however, adjudged and decreed that the said Georgia Mississippi Land Company, as vendors of said land, (although no mortgage or special security was made or reserved thereon,) had a just right or lien upon said quantity of land, for which said unpaid notes were given; and the said commissioners accordingly did adjudge and assign, out of the said sum of $1,550,000, the sum of one hundred and thirty thousand four hundred and twenty-five dollars and twelve cents, (say $130,425 12,) to the said Georgia Mississippi Land Company; the largest portion of which, about three-fourths, as appears by the said decree of said commissioners, was adjudged to belong to the United States, who claimed under the said Georgia Mississippi Land Company, in virtue of shares therein surrendered to the State of Georgia, and by the act aforesaid reserved to the United States. And the United States, as appears by said decree, now retain from said original sum, as representing shares of said Georgia Mississippi Land Company, a larger sum than the said one hundred and thirty thousand four hundred and twenty-five dollars twelve cents, (say $130,425 12,) taken by said commissioners from the said New England Mississippi Land Company as aforesaid. It also appears by the report of said commissioners, herewith, that the said commissioners received as claims on said fund the certificates or scrip of divers persons, issued by the trustees of said New England Mississippi Land Company, to the amount of one-fourth part of the stock of said company, or thereabouts. Said directors urged to said commissioners that persons who held their certificates, and were thereby members of the company, ought to resort to the trustees or treasurer for their share or dividend, after the indemnification had been received by the treasurer; but the board considered that such certificate holder might well apply to them for payment or satisfaction of their scrip in said company, deducting the reasonable proportion of the expenses of the company. They also decreed that persons holding the scrip or certificates of said company, which were derived originally from the sales made by parties to said unpaid notes, had no claim whatever on said fund; and in a distribution thereof, assigned to such certificate holders whose claims they allowed as above, their proportion of the company's funds, unencumbered by certificates derived originally from the parties to said notes as aforesaid.

It further appears, from the said case of Brown and Gilman being a suit brought against said directors by the holder of one of said certificates which had issued from the title of the parties to said unpaid notes aforesaid, that the commissioners erred in pronouncing that there was any lien upon said land, in consequence of said unpaid notes; and the said directors were adjudged liable to pay the same certificates, which the commissioners had declared were not obligatory; and thus the said directors, the petitioners, who, by the proceedings of said commissioners, received only about three-fourths of the stock of the company, were held liable to pay, in the first instance, the whole sum of one hundred and thirty thousand four hundred and twenty-five dollars twelve cents, (say $130,425 12.) 

It also appears that the commissioners were not informed of the laws of Georgia, which, similar to those of Massachusetts, do not allow any lien to the vendor of land without mortgage or special security; and the surviving commissioners (Messrs. Swann and Key) are now fully satisfied that the said award was erroneous.

On the above facts, the petitioners have prayed that the aforesaid sum, erroneously withheld from them by said commissioners, may be granted to them; and, if not, that they may be reinvested in their title to said nine hundred and fifty-seven thousand six hundred acres (say 957,600 acres) of land, for which they have received no indemnification, by an act declaring that the said release executed by them to the United States, shall be inoperative as respects said quantity of land; and that the deeds and evidence of title, which in virtue of said act have been deposited by said commissioners in said office of the Secretary of State, may be restored to them, or attested copies granted, allowing the same to have the force of originals in courts of the United States.

The committee are satisfied that the whole of the said sum of $1,550,000 ought in strictness to have been awarded to said directors of the New England Mississippi Land Company by said commissioners; but they apprehend that the above prayer of the petitioners ought not to be granted, for the following reasons, viz:

The prayer of the petitioners, if granted, must be satisfied out of the moneys awarded by the commissioners to the Georgia Mississippi Land Company, and to the United States, as assignees of such of the Georgia Mississippi Land Company as had surrendered under the act of Georgia.

The reference to the commissioners was, as has already been stated, "to adjudge, and finally determine upon, all controversies arising from such claims, so released as aforesaid, which may be found to conflict with, and to be adverse to, each other; and, also, to adjudge, and determine upon, all such claims, under the aforesaid act, or pretended act, as may be found to have accrued to the United States by operation of law." The contemplated compensation, which was to extinguish a disputed claim, was made by the United States for the sake of peace; the submission was voluntarily entered into by the parties with full knowledge of the powers of the commissioners, the circumstances of their selection, the conclusiveness of their award, and their liability to err. If the mistake had been in favor of those who claim the fund, those who hold it would have been without redress. All that the United States were responsible for, was an honest discharge of their duties by the commissioners. That such has been the case, is not controverted; and, that being admitted, the committee are of opinion that the petitioners have no reason to complain, if the award is suffered to remain as binding upon them, as it necessarily was upon their adversaries.

Secondly. Independently of these considerations, the trustees of the New England Mississippi Land Company are not, in the opinion of the committee, entitled to the relief they ask. They have lost their legal rights by the error of the commissioners, under the circumstances which have been stated; and their application now is to the equity of the Government, which can only be to relieve them from injustice. What is their equity? They ask money for lands for which they have never paid. They ask it at the expense of those who have. If, through the improvidence of those from whom they purchased, they, before the submission and award, could, on strict legal principles, entitle themselves to what they now ask, it was their good fortune; but, having lost that legal advantage without fraud, they are without cause of complaint that it is not restored to them; for they have lost nothing to which they were in conscience entitled

Thirdly. If the loss had fallen on those of the New England Mississippi Land Company who had not paid, or their immediate assignees, it is conceded that this application would be without merit. That it has fallen on others, is on account of the terms of the original Association, and the manner of transacting their business, authorized by the trustees and those they represent; and can furnish no ground of claim against those who had no agency in that matter, and who are, at least, equally innocent.

Fourthly. If the grounds relied on by the committee for refusing the direct relief prayed for, are well grounded, they are equally valid against the prayer for the surrender of the release.

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Source: <em>Annals of Congress</em>
Collection: N/A
Series: Series 4 (3 December 1821-31 December 1824)