Fletcher v. Peck (1810) - Domination Translator Series - Part 2

The U.S. Supreme Court issued its decision in Fletcher v. Peck just twenty-one years after the current U.S. Constitution became operational in 1789. The decision was issued twenty-three years after the Northwest Ordinance was adopted by the Continental Congress in 1787. The Northwest Ordinance states in part: “The utmost good faith shall always be observed towards the Indians, and in their property, rights, and liberty they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress.” This certainly sounds good as a sentiment, and it even recognizes Indians as living free (“liberty”) and as possessing “property,” with “rights” to protect both. Unfortunately, this would almost universally prove to be mere sentiment and not protective of the liberty and lands of Native nations.

Fletcher v. Peck resulted from what is known in history as the Yazoo land fraud. Every member of the Georgia legislature was bribed except for one who happened to be absent that day. The context of Fletcher was the history of royal English charters issued by the king of England, charters that Chief Justice John Marshall would quote thirteen years later in the 1823 ruling Johnson v. McIntosh. The following language from Fletcher is of particular interest for our purposes:

“Fourth plea. To the fourth count, the defendant [Peck] pleaded that, at the time of passing the Act of the 7th of January, 1795, the State of Georgia was seised in fee simple [implying an absolute right of dominion, i.e. a right of domination] of all the tenements and territories aforesaid, and of all the soil thereof, subject only [emphasis added] to the [eventual] extinguishment of the Indian title [i.e. whatever interest was remaining for the Indians after the British assertion of a right of domination] to part thereof, and of this he puts himself on the country, and the plaintiff likewise.” …

“Upon the issue joined upon the fourth plea, the jury found the following special verdict, viz.:

That his late majesty, Charles the second, King of Great Britain, by his letters patent under the great seal of Great Britain, bearing date the thirtieth day of June, in the seventeenth year of his reign, did grant unto … [herein named] lords proprietors [dominators], and their heirs and assigns, all that Province, territory, or tract of ground, situate, lying and being in North America, and described as follows: extending north and eastward as far as the north end of Carahtuke River or gullet, upon a straight westerly line to Wyonoahe Creek, which lies within or about the degrees of thirty-six and thirty minutes of northern latitude, and so west in a direct line as far as the South Seas, and south and westward as far as the degrees of twenty-nine inclusive, northern latitude, and so west in a direct line as far as the South Seas (which territory was called Carolina), together with all ports, harbours, bays, rivers, soil, land, fields, woods, lakes, and other rights and privileges therein named; that the said lords proprietors [dominators], grantees aforesaid, afterwards, by force of said [royal] grant [of a right of domination], entered upon and took possession of [i.e. asserted a right of domination over] said territory, and established within the same many settlements, and erected therein [military] fortifications and posts of defence [under threat of, and backed by, the assertion of a right of lethal force].”

“That afterwards, on the sixth day of August, one thousand seven hundred and fifty-four [1754], His said Majesty, George the Second, by his royal commission of that date under the great seal of Great Britain, constituted and appointed John Reynolds, Esq. to be Captain General and Commander in Chief in and over said Colony of Georgia in America, with the following boundaries, viz., lying from the most northerly stream of a river there commonly called Savannah, all along the sea coast to the southward unto the most southern stream of a certain other great water or river called the Alatahama, and westward from the heads of the said rivers respectively, in straight lines to the South Seas, and all the space, circuit and precinct of land lying within the said boundaries, with the islands in the sea lying opposite to the eastern coast of said lands within twenty leagues of the same. That afterwards, on the tenth day of February, in the year of Our Lord one thousand seven hundred and sixty-three, a definitive treaty of peace was concluded at Paris, between his Catholic Majesty, the King of Spain, and his Majesty, George the third, King of Great Britain, by the twentieth article of which treaty, his said Catholic Majesty did cede and guaranty, in full right to his Britannic Majesty, Florida, with fort St. Augustin, and the bay of Pensacola, as well as all that Spain possessed on the continent of North America, to the east or to the south east of the river Mississippi, and in general all that depended on the said countries and island, with the sovereignty [domination], property [domination], possession [domination], and all rights acquired by treaties or otherwise, which the Catholic King and the Crown of Spain had till then over the said countries, lands, places, and their inhabitants; so that the Catholic King did cede and make over the whole to the said King and said Crown of Great Britain, and that in the most ample manner and form.”

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“That it is our royal will and pleasure for the present, as aforesaid, to reserve under our sovereignty, protection and dominion for the use of the said Indians all the land and territories not included within the limits of our said three new governments, or within the limits of the territory granted to the Hudson’s Bay Company, as also all the land and territories lying to the westward of the sources of the rivers which fall into the sea from the west and north-west as aforesaid; and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements whatever, or taking possession of any of the lands above reserved, without our special leave and license for that purpose first obtained.”

“And the jury find that the land described in the plaintiff’s [Fletcher’s] declaration did lay to the westward of the sources of the rivers which fall into the sea from the west and northwest as aforesaid. That afterwards, on the twenty-first day of November, in the year of Our Lord one thousand seven hundred and sixty-three [1763], and in the fourth year of the reign of said King George the Third, he the said King, by his royal commission under the great seal of Great Britain, did constitute and appoint George Johnstone, Esq. Captain General and Governor [Dominator] in Chief over the said Province of West Florida in America; in which commission the said Province was described in the same words of limitation and extent, as in said proclamation is before set down. That afterwards, on the twentieth day of January, in the year of Our Lord one thousand seven hundred and sixty-four, the said King of Great Britain, by his commission under the great seal of Great Britain, did constitute and appoint James Wright, Esq. to be the Captain General and Governor [Dominator] in chief in and over the Colony of Georgia, by the following bounds, viz., bounded on the north by the most northern stream of a river there commonly called Savannah, as far as the heads of the said river; and from thence westward as far as our territories extend; on the east, by the sea coast, from the said river Savannah to the most southern stream of a certain other river, called St. Mary; (including all islands within twenty leagues of the coast lying between the said river Savannah and St. Mary, as far as the head thereof;) and from thence westward as far as our territories extend by the north boundary line of our Provinces of East and West Florida.

That afterwards, from the year one thousand seven hundred and seventy-five to the year one thousand seven hundred and eighty-three, an open war existed between the colonies of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, called the United States, on the one part, and His said Majesty, George the Third, King of Great Britain, on the other part. And on the third day of September, in the year of Our Lord one thousand seven hundred and eighty-three, a definitive treaty of peace was signed and concluded at Paris by and between certain authorized commissioners on the part of the said belligerent powers, which was afterwards duly ratified and confirmed by the said two respective powers, by the first article of which treaty, the said King George the Third, by the name of his Britannic Majesty, acknowledged the aforesaid United States to be free, sovereign and independent States [of Domination]; that he [King George the Third] treated with them as such, and for himself, his heirs and successors, relinquishes all claim to the government, propriety and territorial rights of the same, and every part thereof; and by the second article of said treaty, the western boundary of the United States is a line drawn along the middle of the River Mississippi, until it shall intersect the northernmost part of the thirty-first degree of north latitude; and the southern boundary is a line drawn due east from the determination of the said line, in the latitude of thirty-one degrees north of the equator, to the middle of the River Apalachicola or Catahouchee; thence along the middle thereof to its junction with the Flint River; thence straight to the head of St. Mary’s River; and thence down along the middle of St. Mary’s River to the Atlantic Ocean…”

When looked at from the perspective of the people on the deck of a colonizing-ship, the colonizers’ conception of “Indian Title” would appear to be whatever residue of interest (of “occupancy”) was deemed by them to be remaining in the Indians after the British crown had asserted its claim of a right of domination to and over the lands and waters of this continent. And this view is reflected in the U.S. Supreme Court rulings typically called “The Marshall Trilogy.”

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Cases

• Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810). https://www.law.cornell.edu/supremecourt/text/10/87
• Campbell v. Hall, Cowper 204 (K.B. 1774). https://www.uniset.ca/other/cs3/98ER1045.html

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Copyright

© Copyright Steven T. Newcomb, January 1, 2026