11 N.H. 9 | Superior Court of New Hampshire | 1840
One question which has been made in this case, is whether the land described in the deed from the plaintiff was at the time within the limits of this state. Perhaps the limits of the earlier grants might not embrace the territory in question, and the provincial authorities could not have exercised any jurisdiction over it; but upon the revolution, and the treaty which followed it, defining the boundary line between the Canadas and the states, this territory was srrpposed, and must be deemed by us, to have fallen within the limits of the state of New-Hampshire, as the United States have never claimed title to any tract of land lying between this state and Canada; and the state itself, after much investigation upon the subject, asserted a title and jurisdiction in 1820, by a resolution directing the attorney-general to proceed against intruders; and again in 1824, by an express declaratory act. There has been no pretence of any grant by which the state acquired a title subsequent to the separation from Great Britain; and these acts must be taken and deemed to be an assertion of title, and a right of jurisdiction, from that period; and the question, therefore, whelh
The provincial legislature of New-Hampshire, as early as 1719, passed an act to prevent, and make void, purchases from the Indians without the license or approbation of the general assembly. Upon the revision of the laws, in 1792, this was repealed, and no provision appears to have been substituted, probably because, upon the organization of the government of the United States, that subject was more particularly within the control of the general government. As early as 1790, Congress passed an act providing that no sale of lands made by Indians, or any nation of Indians, within the United States, should be valid unless made and executed at some public treaty, held under the authority of the United States. This act expired by its own limitation in March, 1793, but another act was then passed, containing a similar prohibition, and making it a misdemeanor, punishable by fine and imprisonment, for any person, not employed by the United States, to treat for a purchase in such case. Divers acts have been passed from time to time, since that period.
It has been controverted in this case whether the act of Congress applies to lands within the limits of the original thirteen states; and whether it applies to purchases from Indians residing without the jurisdiction of the United States. These matters have no bearing upon this case, except as they relate to the question, whether the supposed purchase by the plaintiff, from the St. Francis Indians, was or was not prohibited by the laws of the United States as a misdemeanor. But in the view we have taken of the case, this has become immaterial. If the statute then in force, prohibiting purchases from the Indian tribes, was not applicable to that purchase, then the act of the plaintiff, in taking his deed, might have been merely nugatory. And if, on the other hand, such purchase was a misdemeanor, subjecting the
If, then, the plaintiff had not even color of title by his deed, but had entered and been permitted to remain, and the defendants, knowing all the facts of the case, saw fit to purchase his right, such as it was, without any deception, or fraud, or misconduct of the plaintiff in the making of this latter contract—if, for instance, they took by fair bargain a deed of all his right, and title, hoping that they might thereby obtain a confirmation from the state, as had been the case in some instances, previously, in relation to the possessions
Judgment for the plaintiff.