History and Interpretation of the
Great Case of Johnson v. M'Intosh

ERIC KADES

At the root of most land titles in America outside the original thirteen colonies sits a federal patent. The validity of government title, in turn, rests on "[t]he great case of Johnson v. M'Intosh,"1 which held that a discovering sovereign has the exclusive right to extinguish Indians' interests in their lands, either by purchase or just war. Yet both legal and historical scholarship on this "great case" is surprisingly thin. There are no studies examining the litigants or the actual acreage under dispute (surprising for a real property dispute). There are also a number of unanswered legal questions surrounding Chief Justice Marshall's opinion in M'Intosh, perhaps none more glaring than the failure to pin down the legal basis for the decision. This article endeavors to fill in these gaps.	1
M'Intosh involved conflicting claims to large tracts of land in southern Illinois and Indiana. The plaintiffs made their claim under deeds obtained directly from the Indians by predecessors organized as the United Illinois and Wabash Land Companies. The defendant countered with supposedly conflicting claims to some of the same land under a United States patent. In ruling for the defendant, Chief Justice Marshall once and for all established that the federal government would not recognize private purchases of Indian lands.	2
Drawing on material from a variety of sources that neither historians nor legal scholars have examined, this article uncovers a number of surprises. The (victorious) defendant's purchases may well have been illegal. The driving force behind the litigation was probably the plaintiffs' lawyer, Robert Goodloe Harper. Finally, there likely was no real conflict between the litigants' land claims.	3
Part 1 presents a detailed history of the events leading up to the Supreme Court's decision in Johnson v. M'Intosh. Part 2 offers novel solutions to a number of puzzles in Chief Justice Marshall's somewhat obtuse and cryptic opinion. Previous scholarship has passed over Marshall's refusal to decide the case based on narrow statutory grounds, despite courts' usual preference for such limited rules of decision. This article explains some of the subtleties of the system of dual, coexistent land tenure (Indian alongside European) that Marshall constructed. For instance, Marshall implicitly suggested that the plaintiffs, as purchasers from the Indians, look to Indian courts for a remedy (a disingenuous suggestion, since Marshall must have known no such courts existed and that the tribes lacked the wealth to pay damages). Although Marshall's dual tenure land regime did significantly limit their property rights, descriptions of Indian title as a "tenancy at sufferance" are patently inaccurate as a matter of law and misleading as a matter of fact. Finally, the most astonishing gap in existing legal scholarship on Johnson v. M'Intosh is the failure to identify the legal basis for Chief Justice Marshall's holding. As mentioned above, Marshall declined to base his holding narrowly on a colonial-era statute (or a royal proclamation) that appeared controlling. Though sometimes classified as a constitutional law case, the opinion does not cite the Constitution once. Marshall cited a few cases, but these clearly did not control the holding. This article argues that Marshall appealed to custom--the longstanding European and American practice of barring private purchases of Indian land--to provide the rule of decision in Johnson v. M'Intosh.	4
Part 3 introduces a new interpretation of the purpose of the M'Intosh rule: it served as a means of expropriating Indian land at minimal cost. Just as sellers can charge more when they are monopolists without competitors, so too buyers can pay less when they are monopsonists without competing bidders. The rule of Johnson v. M'Intosh ensured that Europeans would not transfer wealth to the tribes in the process of competing against each other to buy land. This part concludes by showing that a number of other important nineteenth-century American legal rules similarly were designed to enable the nation to separate Indians from their land cheaply; Johnson v. M'Intosh was part and parcel of a complex, multifaceted machine of efficient expropriation.2	5
I. The History of Johnson v. M'Intosh A. Land Title and Alienability in Early America
M'Intosh is about the nature of Indian land title in general and, in particular, the effect of United States law on sales by natives to private European citizens. Thus the history of the case naturally begins with English and American laws governing alienation of land.3	6
For the most part, colonists simply imported English real property law, wholesale, to define their rights in American lands. Two complications, however, demanded the creation of additional rules. First, competing European sovereigns had to establish rules to deal with conflicting claims among themselves to American lands. Second, the European colonizers had to decide what rights, if any, Indians had to their own lands.	7
The simultaneous British, French, Dutch, Spanish, and even Swedish explorations and colonizations of North America inevitably led to land disputes.	8
[A]s they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.4
It is important to note that, strictly speaking, this discovery rule applied only among European nations ("regulated as between themselves"). Some commentators have used the term "discovery rule" to describe the rules that the various European sovereigns established for defining Indian land rights, such as the M'Intosh rule that the sovereign alone could purchase land from the natives. Milner Ball cogently explains why this is inconsistent with Marshall's approach: "The theory [of M'Intosh] sets out two different relationships: one among European claimants to the New World, the other between each of the European claimants and the Indian inhabitants. As among the Europeans, the doctrine of discovery obtained. As between European and Indian nations, each relationship was to be separately regulated." The discovery doctrine did not apply, at least directly, to European-Indian relations.5	9
Confusion about this two-level doctrine (the discovery rule to regulate inter-European disputes and rules to regulate European-Indian disputes) may be due in part to the following dense passage in Chief Justice Marshall's opinion. "The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented." Describing the "sole right of acquiring the soil" as a necessary result of the discovery rule is misleading. Marshall meant that a discovering nation could exclude other nations under the first level, the inter-European discovery rule. The discovery rule does not dictate what rule each sovereign chose at the second level in defining rights vis-à-vis the Indians. Thus the quoted passage did not mean that each sovereign had to bar its own citizens from making private purchases of land from the Indians, the particular second-level rule that Marshall found that America and its predecessors had adopted. Indeed, contrary to the rule of M'Intosh, it appears that the French at times permitted their colonists to purchase lands directly from the Indians.	10
Marshall's very next sentence makes clear the distinction between the discovery rule as level one and whatever rules each nation decided to establish as level two: "Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves [step two]. The rights thus acquired being exclusive, no other power could interpose between them [step one, the discovery rule]."6	11
The earliest settlers articulated a simple, selfish step-two doctrine: they declared that the Indians had no rights to their own land. Despite an initial period of weakness, when colonial Virginia was no military match for the local tribes and indeed depended on their charity to survive, Governor Harvey articulated a theoretical basis for expropriating Indian lands.	12
Some affirm, and it is likely to be true, that these savages have no particular propriety in any part or parcel of that country, but only a general residency there, as wild beasts in the forest; for they range and wander up and down the country without any law or government, being led only by their own lusts and sensuality. There is not meum and tuum [mine and thine] amongst them. So that if the whole land should be taken from them, there is not a man that can complain of any particular wrong done unto him.
Governor Winthrop of Massachusetts Colony invoked the Bible in support of this principle, although he generously offered to leave the Indians with enough land to maintain themselves.
The whole earth is the lords Garden & he hath given it to the sonnes of men, wth a general Condicion, Gen: I.28. Increase & multiply, replenish the earth & subdue it. . . . And for the Natives of New England they inclose noe land neither have any settled habitation nor any tame cattle to improve the land by, & soe have noe other but a naturall right to those countries Soe as if we leave them sufficient for their use wee may lawfully take the rest, ther being more than enough for them & us . . .
In the eyes of the Puritans, hunter-gatherers were not really occupants of their lands. "God had intended his land to be cultivated and not to be left in the condition of 'that unmanned wild Country, which they [the savages] range rather than inhabit.'"7
Although they replaced religion with appeals to "civilization," later American leaders continued to defend their right to take land from hunters and put it to agricultural or other more intense use. In an 1802 speech honoring the Pilgrims, future President John Quincy Adams would leave the Indians only those lands they used for European-style agriculture and occupation.	13
The Indian right of possession itself stands, with regard to the greatest part of the country, upon a questionable foundation. Their cultivated fields, their constructed habitats, a space of ample sufficiency for their sustenance, and whatever they have annexed to themselves by personal labor, was undoubtedly by the laws of nature theirs. But what is the right of the huntsman[?] . . . Shall the lordly savage, not only disdain the virtues and enjoyments of civilization himself, but shall he control the civilization of a world? Shall he forbid the wilderness to blossom like the rose? Shall he forbid the oaks of the forest to fall before the ax of industry and rise again transformed into the habitations of ease and elegance?
James Monroe, as president, more than once voiced the same theme. "[T]he hunter or savage state requires a greater extent of territory to sustain it, than is compatible with the progress and just claims of civilized life, and must yield to it . . . " "[T]he earth was given to mankind to support the greatest number of which it is capable, and no tribe or people have a right to withhold from the wants of others more than is necessary for their own support and comfort." As the end of the expropriation process approached, Theodore Roosevelt made the argument with characteristic bluntness: "the settler and pioneer have at bottom had justice on their side; this great continent could not have been kept as nothing but a game preserve for squalid savages."8
Common settlers agreed with these sentiments and invoked egalitarian, leveling arguments to explain why the land-rich Indians should be compelled to share the wealth. Squatters on Chickasaw land successfully protested eviction that would "bring many women and children to a state of starvation merely to gratify a heathan nation Who have no better right to this land than we have ourselves; and they have by estemation nearly 100,000 acres of land to each man Of their nation . . . "9	14
A funny thing happened on the way to acquiring Indian lands. In spite of these oft-repeated justifications for simply taking it, colonists very early on began purchasing tracts. This soon became official policy. The Massachusetts Bay Company instructed its colonists in 1629 that "[i]f any of the Savages pretend Right of Inheritance to all or any Part of the land in our Patent . . . purchase their claim in order to avoid the least Scruple of Intrusion." When the Crown began to exercise more direct oversight of the colonies in the 1660s, it reiterated this principle. "No colony hath any right to dispose of any lands conquered from the natives, unless both the cause of the conquest be just and the land lye within the bound which the king by his charter hath given it . . . the country is [the natives] till they give it or sell it, though it not be improved." This was not mere rhetoric; Massachusetts towns that had occupied lands without buying them responded by retroactively making payments to the local tribes.	15
The passage does note the one instance in which outright expropriation was permissible: "just" war, that is, defensive wars. "While the English generally recognized the validity of aboriginal ownership and felt the necessity to pay for the Indians' lands, no such necessity existed for lands acquired by conquest in a just war. Two wars, the Pequot War (1637) and King Philip's War (1675–1677) resulted in large transfers of realty by conquest." Conquest in New England, however, remained very much the exception, and the bottom line is that "contrary to the common belief that the Indians were ruthlessly deprived of their land, almost every part of [Massachusetts] that came to be inhabited by the whites was purchased from the Indians, except the areas that were either acquired by conquest or, like Salem and Boston, never claimed by Indians, because of depopulation by epidemics."10	16
The pattern of European land acquisition in New England, purchases punctuated by rare conquests, repeated itself across the rest of the continent. The United States paid over $800 million for Indian lands. According to Congress, the United States exercised the right of conquest only once and then half-heartedly.11	17
Although Europeans recognized some Indian interest in land, they never "granted" the tribes all the sticks in the common-law bundle of property rights; in particular, colonists consistently narrowed or entirely denied the Indians' power to sell land. Two facets of European doctrine are particularly relevant for Johnson v. M'Intosh: the ability of European governments to sell lands before they had purchased them from the Indians and the exclusive right of the British and American governments to purchase when a tribe was ready to sell.	18
British sovereigns and American officials asserted the right to sell Indian land to their citizens before any dealings with the occupying tribe. Purchasers took "subject only to the Indian right of occupancy,"12 but otherwise had a full fee interest. Combined with the exclusive right to purchase Indian lands (or conquer the tribe), discussed in the following section, this created a novel and peculiar "bifurcated title." Ultimate title resided with the European sovereign or its grantee; the Indian occupants retained "Indian title" until they sold (or were otherwise relieved of their lands).	19
Colonizers always jealously maintained the superiority of their title. The London Company warned its agents to make "no admission, either direct or by inference, that the Indians possessed a superior claim on the land. When such an implication was made . . . the company reacted with bitter resentment."13 British and American law never questioned the basic premise that, whatever rights Indian title encompassed, such rights were ultimately subordinate to the separate title derived from the Crown, colony, state, or the United States.	20
For example, if Indian title was equal to European title, adverse possession would have posed a serious problem to bifurcated title. A tribe could argue that if the sovereign did not extinguish their Indian title within the limitations period for trespass, and they continued to occupy the land, they had adverse possession against any grantee of the British or American governments. The next logical step in the argument would be that the Indians could also adversely possess against the sovereign itself.	21
The colonists never recognized Indian title as creating such a power. In Klock v. Hudson, both (American) claimants rooted their title in a grant from the colony of New York in 1731. The defendant, however, established that Mohawk Indians occupied the disputed tract at the time of a deed in the plaintiff's chain of title, from 1761 onward, and hence, "under the doctrine of the common law rendering void the sale of lands, while they are in adverse possession," the plaintiff's chain of title had a gap. In rejecting this adverse possession claim, the court pointedly noted, as discussed above, that this same theory implied that the Indians could adversely possess against New York itself.	22
[I]t must be apparent, that if the possession of the Indians was sufficient to destroy the operation of the deeds in 1761, it would be equally effectual to destroy the grant from government in 1731. Such a suggestion, however, is inadmissible. The policy, or the abstract right of granting lands in the possession of the native Indians, without their previous consent, as original lords of the soil, is a political question with which we have at present nothing to do.14
Another dilemma might arise with bifurcated title if the Indians sold to Y while the Crown or the United States sold to X. This was the basic fact pattern of M'Intosh. Given the superiority that colonizers assigned to their title, it comes as no surprise that X has title as against Y. The colonies, the British government, the states, and the United States achieved this result by the same rule: they barred anyone but themselves from purchasing lands from the Indians. Although most of the property rules discussed thus far involve European-Indian relations, this stricture was a regulation made by colonists, directed only at colonists.15	23
The universal and repeated enactment of laws barring purchases of land by private citizens from the Indians attests to the importance Britain, its colonies, and later the United States attached to this rule. In colonial New England, "[i]t is a reasonable generalization to say that land purchases from Indians were a governmental monopoly . . . " Massachusetts apparently adopted the first such official law in 1634 and reenacted similar measures repeatedly. As late as 1760, Massachusetts publicized the law and empowered local officials to enforce it at colonial expense. Almost every colony adopted such measures as soon as it began purchasing significant amounts of Indian land.16	24
As the British government increasingly took control over Indian affairs in the mid-1700s, it reiterated the long line of colonial precedents; for instance, in 1753, the British government instructed the governor of New York "to forbid purchases of land by private individuals." The process of centralizing Indian policy culminated in the Proclamation of 1763. Inter alia, the Proclamation dictated that "no private Person do presume to make any Purchase from the said Indians of any Lands reserved to the said Indians . . . if at any Time any of the said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our name [in public, by colonial officials]." This royal proclamation superseded all similar colonial statutes and provided a uniform and universal ban on land purchases from the Indians until the Revolutionary War.	25
The Continental Congress, despite the unclear division of state and federal powers under the Articles of Confederation, soon enacted measures echoing the prohibition in the Proclamation of 1763. The subsequent Constitution of 1789 unequivocally gave the national Congress exclusive power to conduct Indian affairs. Beginning in 1790, under a series of "Trade and Intercourse" acts, Congress continued to ban private land purchases from the Indians; later versions explicitly made private purchases a misdemeanor, punishable by jail terms of up to a year and fines of up to $1000.17	26
Even though the United States generally respected French and Spanish property law in lands it purchased (or conquered) from those nations, such was the strength of the Anglo-American rule against private purchases from the Indians that this deference apparently did not extend to cases where these other sovereigns permitted such transactions. In several cases, United States commissioners adjudicating French claims in present-day Indiana "refused a tract for the time being because it was obtained by a private person from the Indian tribes in the neighborhood." Many of the laws barring private land dealings with the Indians forbade not only outright purchases, but leases and even timber sales.	27
Chief Justice Marshall conceded that rare exceptions existed to the laws refusing to recognize grants from Indians. "In New-England alone, some lands have been held under Indian deeds. But this was an anomaly arising from peculiar local and political causes." The sovereign could always give its blessings to unapproved land purchases after the fact, and according to a recent book this practice was common in colonial Massachusetts.18	28
Later on, however, the United States rarely granted such ex post facto approval of land purchases from the Indians. The government did recognize the acquisition of Grosse Ile, near Detroit, by the Macomb brothers. The last such dispensation apparently occurred in 1807. Much more common, even before 1807, was the treatment received by war hero George Rogers Clark. Congress refused to recognize a 1779 grant the Piankashaw tribe made to Clark, in the wake of his remarkable conquest of Illinois during the Revolutionary War. Even the extraordinarily sympathetic attempt by the Chippewa, Ottawa, Wyandot, and Pottawatamie Indians in an 1807 treaty to reserve three square miles for one Dr. William Brown, who had ministered to them for ten years, failed to move Congress. The committee processing the petition first voiced its irritation with such requests, stating that it was "almost unnecessary for the committee to state to the house, that many applications have been made to Congress for the confirmation of titles to land purchased by individuals from the Indian tribes . . . " Had the committee been sympathetic, it could have ruled for Dr. Brown on the ground that rather than selling land directly to him, the tribes instead had negotiated a grant to Brown under the aegis of a treaty with the United States. Applying substance over form, and voicing fear of a slippery slope of private purchases disguised as reservations in treaties, the committee recommended rejection of the petition.	29
In the present case no direct sale or transfer is pretended; but the committee can discover, neither in the manner, nor the object, any thing to materially distinguish it from former applications; or that would induce a relaxation of a general rule. Therefore, Resolved, that the prayer of the petitioners ought not to be granted.
Congress' refusal to recognize grants to a philanthropic doctor and a war hero of Clark's stature shows the importance attached to the long-standing rule against private acquisitions of land from the tribes.19
There are two reasons that I have traced the history of this longstanding rule in such detail. First, its long and unbroken pedigree makes the holding of M'Intosh (reaffirming the rule disallowing private purchases from the Indians) seem predictable and, moreover, lays the foundation for the novel argument that custom forms the central ground for Chief Justice Marshall's opinion. Second, the rule makes perfect sense as a tool for efficient expropriation of Indian lands. Hence its universal enactment and strict enforcement support the thesis of least-cost expropriation presented below in Part 3.	30
In the context of the facts of M'Intosh, the omnipresence of the rule poses a puzzle: why did the predecessors in interest to the plaintiffs in M'Intosh, experienced and worldly businessmen as demonstrated below, spend a considerable sum to buy a seemingly worthless title directly from the Indian tribes in southern Illinois and Indiana?	31
The plaintiffs' predecessors were not alone in speculating that British or American governments might recognize some Indian deeds. George Washington, undoubtedly a sophisticated observer of politics and an astute land speculator, confided to a close friend his view of the Proclamation of 1763's ban on purchases from the tribes:	32
I can never look upon that proclamation in any other light (but this I say between ourselves) than as a temporary expedient to quiet the minds of the Indians . . . Any person, therefore, who neglects the present opportunity of hunting out good lands, and in some measure marking and distinguishing them, for his own, in order to keep others from settling them, will never regain it.
Washington felt, correctly, that all Indian lands would soon fall into colonists' hands, and if purchase from the Indians no longer established title to good lands, then he planned to pursue other means to the same end. George Croghan, a prominent trader, land speculator, and British Indian agent, continued to buy land directly from the tribes even after colonial officials nullified earlier purchases he had made.
Croghan and many other "gentlemen of fortune" felt emboldened to make such private purchases from the Indians in part because of the Camden-Yorke Opinion, a peculiar legal opinion letter originally written by British Attorney General Charles Pratt (who later became Lord Camden) and Solicitor General Charles Yorke. This document affirmed the right of individuals to buy land from rajahs in British India. A slightly altered version, not limited to India (it is not clear if the original authors, or others, made the alterations), found its way to America no later than 1773.	33
Croghan was not alone in basing decisions to invest significant sums, in large part, on the seemingly shaky foundation of the Camden-Yorke Opinion. The Illinois and Wabash land companies, whose purchases in 1773 and 1775 lie at the root of M'Intosh, were also motivated by the opinion. Patrick Henry "was convinced from every authority [including the Camden-Yorke Opinion] that the law knew, that a purchase from the natives was as full and ample a title as could be obtained."20	34
Improvident belief that courts would agree with the Camden-Yorke Opinion and void all legislative and executive bars on private purchases of Indian lands may in part explain how land speculators in the 1770s hoped to succeed. But this hardly seems a sufficient basis for such experienced businessmen to take this risk. As the later actions of many of the speculators indicate, they may have planned from the first to obtain legislative action after the fact to except them from the laws that would void their titles. The incredible size of their claims, often in the millions of acres, provided a ready source of consideration with which to bribe legislators. Finally, anticipation of political change may have motivated the marked increase in private purchases from the Indians in the 1770s.	35
B. The Land Companies and Their Purchases
The specific background of Johnson v. M'Intosh begins with land purchases from tribes in southern Illinois and Indiana by two closely related entities: the Illinois Land Company and the Wabash Land Company. The two later merged into the United Illinois and Wabash Land Companies.	36
The Illinois Company arose out of the Indian trading and troop provisioning activities of a group of prominent Philadelphia merchants led by David Franks and the Gratz brothers, Bernard and Michael. These merchants had very limited business success in the later 1760s and early 1770s. When their partner and agent in Illinois, William Murray, caught wind of the Camden-Yorke Opinion in 1773, he elatedly wrote the Gratzes of his plans for turning their activities towards land speculation. "So courage, my boys. I hope we shall yet be satisfied for past vexations attending our concern in Illinois."21	37
Murray reached Kaskaskia, a town with a British fort on the Mississippi in southern Illinois, in June 1773. He promptly "showed the [Camden-Yorke Opinion] to Captain Lord, commander at Kaskaskia. Lord, however, was not overawed by the weighty names and informed Murray that he 'should not suffer him to settle any of the lands as it was expressly contrary to his Majestys Orders.'" Despite this admonition, Murray promptly began negotiations with the Illinois tribes. He conducted his negotiations at the fort and claims to have been scrupulously honest. "[T]o avoid any insidious suggestion of malignant persons, I prevented the Indians from getting a drop of spirituous liquor during the whole of the negotiation."	38
He negotiated slowly, over more than a month, in order to make sure that all tribes with claims agreed to terms. This was important since land rights among the tribes were unclear. Boundaries separating the Illinois and other Great Lakes tribes were not well-defined and seemed to shift continuously.22	39
Murray dealt with the remnants of the once great Illinois tribes. Their population had dropped from around 12,000 in 1680 to 1,720 in 1756, to 500 in 1800, as they fell victim to European diseases and Indian enemies on all sides. Unable to prevent neighboring tribes from encroaching on their extensive land, the Kaskaskia, Peoria, and Cahokia tribes on July 5, 1773, deeded to Murray and the other twenty-one members of the Illinois Company two large tracts of land in southern and central Illinois.23	40
In return for the two tracts, the Illinois Company paid the tribes with a wide variety of goods, including inter alia 250 strouds (sheets of coarse woolen cloth), 250 blankets, 500 pounds of gunpowder, 400 pounds of lead, 2000 gun flints, 10,000 pounds of flour, 2 horses, and 12 horned cattle. The company originally valued these goods at over $37,000, but in the stipulated facts of M'Intosh its successors placed the value at only $24,000.24	41
The otherwise unremarkable deed contains a feature apparently overlooked by earlier scholars: an alternative conveyance to the King, in use (trust) for the grantees. After naming the members of the Illinois Company as grantees directly, the deed in the alternative grants the two tracts "unto his most sacred majesty, George the Third, . . . for the use, benefit, and behoof of all the said several abovenamed grantees."25 Although never raised by congressional committees rejecting the company's claim, or by Chief Justice Marshall in the M'Intosh opinion that foreclosed the claim once and for all, this is strong evidence that even at the time of the purchase the grantees had profound doubts about their ability to buy legal title directly from the Indians. Utilizing a lawyerly "belts and suspenders" approach, Murray, the presumptive scrivener, tried to paint himself and his associates as beneficiaries of land formally held in the name of the King.	42
Murray's caution proved well-advised, for the Illinois Company purchase "evoked a sharp response in London . . . [British officials aimed to] prevent the speculators from establishing any settlement in consequence of 'those pretended Titles' and to authorize the local commander in the Illinois country to declare the 'King's disallowance of such unwarrantable proceedings.'" They instructed the commander at Kaskaskia "to delete from the public notary's register any of the proceedings relating to purchases already made and to declare publicly that they were invalid."26	43
About eighteen months after the purchase, in January 1774, the British commander at Kaskaskia made just such a public pronouncement, telling the Illinois Indians that they could still consider themselves holders of the land. According to Murray, the commander told him that the tribal leaders rejected this seemingly magnanimous offer.	44
After some deliberation, the Chiefs replied, "That they thought; what the great Captain said was not right; that they had sold the lands to me [Murray] and my friends not for a short time, but, as long as the Sun rose and set;--That I had paid them what they had agreed for, and to their satisfaction, and more than they had asked for; and that they wished how soon I and my friends should come and settle upon the lands; that they would help to protect us against our enemies, and hoped we would do the same for them &c.27
Murray and his Philadelphia partners perhaps took some heart from this faithfulness on the part of their vendors, but they continued to worry about obtaining official recognition for the Illinois Company's deed. Unable to find political support in their own state for their purchase, the Pennsylvanians of the Illinois Company turned to Lord Dunmore, Governor of Virginia. Absent direct royal administration, Virginia claimed, and was recognized to have, jurisdiction over Illinois by virtue of its colonial charter. Murray visited Dunmore in April 1774. An aspiring land speculator himself, the governor apparently agreed to throw his weight behind the Illinois Company's claim in return for the chance to participate in subsequent transactions. Murray was already talking of a second scheme by May.	45
To satisfy the desires of the governor, Murray created the Wabash Land Company, of which Lord Dunmore and several men from Maryland, Philadelphia, and London became members . . . His reward promised, Lord Dunmore wrote to Lord Dartmouth [British Secretary of State] a most cordial recommendation of the Illinois Land Company . . . In a later letter Dunmore denied that he had any connection with the Illinois Land Company, but he kept discreetly silent about the Wabash Land Company.28
Instead of negotiating a second purchase himself, Murray recruited a prominent local Frenchman, Louis Viviat, as a partner and agent.29 One historian has suggested that Murray employed a Frenchman for this second purchase in order to invoke the tradition of private purchases by that nation's citizens and to ensure their political support for the Company's title. Murray may have believed that a decision against Viviat's Indian deed would be seen as a threat to all French titles in the west, an impression the British wanted to avoid.	46
Viviat treated with Piankashaw tribal leaders at Vincennes (Post St. Vincent) and Vermillion in present-day Indiana. The Piankashaw were one of six tribes classified as Miami Indians. Like the Illinois tribes, the Miami as a group suffered precipitous population declines after contact with Europeans; their numbers fell from 7,500 in 1682 to just over 2,000 in 1736. Although they were closely related to the Illinois tribes in culture and perhaps heritage, the two groups had long-standing animosity for each other.	47
Viviat reached terms and executed a deed, on behalf of the twenty members of the Wabash Company, with the Piankashaw representatives on October 18, 1775. Like the Illinois Company deed, it conveyed two large tracts, both along the Wabash River. The first (northern) tract straddled the Wabash between the Cat River and Point Coupee; the second (southern) tract ran from the Ohio up to the White River. The Piankashaws specifically reserved the land between the two tracts, and in a further term implying their sovereignty the tribes granted the Wabash Company a navigation easement on those portions of the Wabash River and its tributaries situated outside the purchased lands. The Wabash Company paid the Piankashaws with trade goods similar to those given by the Illinois Company, but with a slightly higher value: the Company originally claimed the items were worth $42,477.73, but its successors stipulated to the figure of $31,000 in the litigation of M'Intosh.30	48
Unlike Murray, Viviat apparently failed to include all the tribes with colorable claims to the lands purchased. In particular the Weas may have had claims in the southern tract. In addition, there is evidence that the Piankashaw negotiators did not have the support of their own tribe in making the grant. These facts are at odds with the case stated in M'Intosh, which represented both purchases as being made from united, consenting tribes with exclusive Indian title.	49
Like the Illinois Company deed, Viviat included an alternative grant to the King, in use (trust) for the grantee members of the Company. This again shows that the members of the Company had sincere doubts about the validity of direct private purchases from the Indians.31	50
C. Losing the First Round
In order to cure any defect in their title, the Illinois and Wabash companies did what so many other land speculators did in the early republic: they lobbied the legislature. Lobbying was no prettier then than today. For legislators, land claims formed "the most complicated and embarrassing Subject . . . Infinite pains are taken by a certain sett of men vulgarly called Landd robbers [jobbers], or Land-Sharks to have it in their power to engross the best lands . . . "32	51
In the early years of the American Revolution, the companies took two important steps to obtain legislative confirmation of their titles. First, they attracted influential, well-connected investors to bolster their lobbying efforts, and second, they merged into the United Illinois and Wabash Land Company (the "United Companies") to pool their resources and coordinate their efforts.	52
James Wilson, later one of the primary architects of the Constitution and a Supreme Court Justice, was, by 1779, the central figure in the United Company's efforts. Robert Morris, Financier of the American Revolution, was another prominent investor, as was Dr. Thomas Walker, "a dominant figure among Virginia's land speculators in the later 1700s." The Companies also tried to lure American military leaders to their cause, including General Arthur St. Clair and Brigadier General Anthony Wayne, though there is no evidence that either became a shareholder in the United Companies.33	53
The members of the Illinois Company and the Wabash Company merged on March 13, 1779. Wilson became chairman on August 20, 1779. He, along with Murray, drafted the Articles of Union and the Constitution, which the members adopted on April 29, 1780. The preamble to the Articles stated that "the lands should be in common between [the two companies' members]." Apparently the shareholders believed that the Wabash Company lands were slightly more valuable, since two of the eighty-four authorized shares were "conceded to the Ouabache [Wabash] Company upon uniting their interest with the Illinois Company."34	54
Murray had begun lobbying even before the companies united. While the British government had clearly rejected the claims, the happenstance of the American Revolution opened up a new possibility for vindicating the titles: the (newly sovereign) state of Virginia, whose colonial charter encompassed Illinois along with the rest of the Old Northwest (basically those lands north of the Ohio River and East of the Mississippi). Thus Murray presented a memorial to the Virginia legislature in December 1778 outlining the Companies' land claims. There was precedent for relief from this quarter: Richard Henderson, organizer of the Transylvania Company, twice received grants of other lands when the Virginia General Assembly rejected his purchases from the Indians.	55
Virginia, however, refused to recognize the Companies' Indian deeds. Indeed, the activities of the Illinois and Wabash companies led the state's legislature, in May 1779, to restate the ancient rule against direct purchases from the Indians. And the reason given could not have come as a surprise. "It was stated that no person had ever had the right to purchase lands within the limits of Virginia from the natives, except those persons authorized to make such purchases for the use and benefit of the colony and later the state."35	56
The fluid political situation, however, soon gave the United Companies yet another body to lobby: the new national legislature. In response to pressure from states without extensive claims to western lands under their colonial charters, Virginia and other states ceded their western territory to the nation in 1783. Initially, in 1781, Virginia tried to condition the cession of this land on the Continental Congress' refusing to recognize the claims of the land companies. Although the final deed of cession contained no such explicit term, there was a tacit understanding that the national legislature would reject the claims.36	57
Between 1781 and 1796 Wilson drafted no less than five memorials to the national legislature pleading the United Companies' case. Complete copies survive of only the extraordinary efforts made in 1796–97, when the Companies publicly printed a fifty-Five-page pamphlet and submitted a thirty-page memorial to Congress. Wilson, along with Morris and sometimes others, received expenses and stipends for trips to present these memorials to Congress and, presumably, to lobby legislators. The Companies apparently also engaged in propaganda as part of their lobbying efforts. Murray purchased two hundred copies of Samuel Wharton's Plain Facts, a diatribe invoking universal natural rights--Indians' rights to sell their land and settlers' rights to buy it--to justify private purchases from the tribes.37	58
To buttress these efforts, the Companies continually scavenged for evidence supporting their claims. In 1787, they obtained an affidavit from one Bernard Tardiveau averring that during his travels in Illinois he had seen the Companies' deeds and that "the Inhabitants of that Country speak of the said Purchase as being made in the most publick manner." When a delegation of Indians from Illinois visited Philadelphia in early 1793, the Companies appointed one of their shareholders, Pollack, to ask about conditions in the region and any knowledge the Indians had of the Companies' deeds. A smallpox epidemic among the visitors, along with strenuous objections of government officials to contacts by such a private citizen with Indian guests of the United States, made this job almost impossible. Pollack did manage to speak with a chief named Petit Castor (Little Beaver) who, after touching his father's signature on a copy of the deed, said "he had often heard his father speak of it as a fair sale and that value had been received for the lands . . . "	59
The Companies kept close tabs on American land acquisitions that might overlap their claims. In 1793, they inquired about a treaty made with the tribes occupying the banks of the Wabash River, but Secretary of War Henry Knox noted that, since the Senate was still considering the Treaty, he could not disclose its contents. The Companies took pains to inform Knox that they had no intentions of violating federal law by settling lands not yet ceded by the tribes.38	60
The members' changing choices for financing their operations indicates increasing pessimism over the Companies' prospects. In 1778 and 1779 they repeatedly assessed themselves in order to raise funds, displaying confidence by declining to sell any interest in their claims to new investors. Thereafter, however, the members instead raised funds by selling shares, thus diluting their ownership. The Companies Articles created eighty-four shares, with thirty retained by the Companies. Robert Morris was one of the first purchasers, in 1789, and others bought all but three of the thirty company-owned shares over the next year. When the Companies needed to raise $500 in late 1792, Five members offered only $100 for an additional share, and that only if the Companies could not find an outside purchaser. Somebody, however, found a mark: John Nicholson, Esq., a noted Pennsylvania land speculator, willing to part with $500 for the share.39	61
The members, even before beginning to lobby in earnest, contemplated dilution of their interest in another way: granting a large portion of their lands to the federal government in return for recognition of the Companies' title to the remainder. The members first discussed a gift to the United States in conjunction with a supposed patriotic desire to reward members of the armed forces by making "a Cession to Congress at a moderate value, in trust for the United States of a Tract of Land sufficient to enable them to pay the stipulated bounties to Officers and Soldiers . . . "40	62
The Companies were always very careful about the legal formalities of such a grant. They consistently proposed to cede all their lands to the government, which would then grant a portion back to the Companies. Why did they propose this two-step transaction, when it would have been simpler for the company to grant the government the proposed share of its lands in one step? The shareholders probably felt more secure with title rooted in a patent directly from the federal government.	63
The Companies vacillated on the fraction of lands they proposed to retain. They first discussed keeping a fifth of their acreage, expressed willingness later to reduce that fraction to an eighth, but in their final major lobbying effort, in 1796, told Congress that they would compromise their claim if permitted to take title to a quarter of the land encompassed in their four tracts, leaving the details to later negotiation.41	64
In trying to sell Congress on such a compromise, the United Companies repeatedly emphasized that, by relying on their deeds, the nation could avoid paying the Illinois and Piankashaw Indians a second time for the same lands. "[A] transfer of [the company's title] to the United States may be rendered effectual, to preclude the necessity of a second purchase, and to bar all future claims of the Indians to the lands in question . . . " Just in case Congressmen missed the point, the Companies later made the point again, more stridently:	65
We are persuaded that the government of the United States, would not reject a valid title, to the great injury of many of their good citizens; and, at a greater price, recur to the Indians for a new purchase, sinking in their pockets (viz. the Indians) the large sums that have been paid and expended by the first bona fide purchasers, who remain true and faithful citizens of the United States.
Successive national legislatures never found a compromise attractive. From the very first memorial in 1781, they rejected the Companies' claims based on the ancient, omnipresent rules against private purchases of land from the Indians: "the said purchase had been made, without the license of the then government, or other public authority, contrary to the common and known usage, in such cases established." The Companies did win over one legislative committee in 1788, which reasoned that the nation could step into the Companies' shoes: "however improper it may be in general to countenance private purchases from Indians . . . the United States will be ultimately benefitted by an exemption from the expense of purchasing the same Lands . . . "	66
This is as close as the United Illinois and Wabash Companies would ever get to success. In 1792 a Senate committee felt that the benefits of strictly enforcing the rule against private purchases of Indian lands outweighed the benefits of waiving the rule in this particular case. Thus it rejected the Companies' petition on the predictable grounds that "deeds obtained by private persons from the Indians, without any antecedent authority or subsequent confirmation from the government, could not vest in the grantees . . . a title to the lands . . . "42	67
In their concerted lobbying effort of 1796–97, the Companies marshaled every possible argument in favor of recognizing Indian deeds. They cited a few exceptional cases in which colonies had recognized private purchases from Indians and quoted at length from the Camden-Yorke Opinion. They emphasized the independence of the tribes from whom they purchased and the fact that these Indians had never sold any rights in land to a colony or the royal government. Summing up, they stated a rule flatly at odds with the weight of authority: "Mere sovereignty, without purchase from the native Indians was never considered, as conveying a title, or any Right of Soil." Congress was unmoved and adopted the Senate committee's 1792 report rejecting the claims. The Companies had an insurmountable hurdle: the long and virtually uninterrupted line of laws barring private purchases from the Indians.43	68
Even as they lobbied Congress, the United Companies intimated that they might pursue a judicial remedy. Their 1797 memorial quoted at length from Van Horne's Lessee v. Dorrance on the constitutional limits on legislative power.44 The Companies emphasized that, in offering to compromise with Congress, they in no way admitted that a legislature could decide the validity of title--a quintessentially judicial issue.	69
D. Interregnum
The Companies' strenuous lobbying in 1796–97 may have been motivated by pecuniary pressures on some of its leading members due to a severe financial panic beginning in 1796. Wilson, hounded by creditors even as he traveled to sit on federal circuit courts, died a pauper in 1798. Robert Morris came out of debtors' prison in 1801 as "lean, low-spirited and as poor as a commission of bankruptcy can make a man whose effects will, it is said, not pay a shilling on the pound" and died penniless in 1806.45	70
The next step certainly evidenced desperation. Only months after Congress rejected the Companies' claims, unspecified "Inhabitants" of Knox County, Indiana Territory (which included parts of present-day Illinois), presented a copy of the Wabash Company deed to the secretary of the Indiana Territory and asked that the government either confirm the grant or at least refrain from making any other grants in the specified regions. These "Inhabitants" were most likely claimants under the Wabash deed or their heirs and successors, perhaps spurred on by their strapped partners in the east.	71
The territorial secretary, Winthrop Sargent, reminded these petitioners of the long-standing rule against private grants and scolded them for asserting a claim "so wildly set up." Some of the petitioners, Sargent implied, had made claims to the same lands on more tenable grounds, and he rhetorically asked, "why my Friends have we been making these requests, if the Claim you propose to me is just?" He refused even to raise the issue in Washington, claiming that it would undermine legitimate claims, and accused the petitioners of appearing to be "not Men, but Children."46	72
In 1802 and 1803, the Companies submitted memorials to Congress that contained little if any new material; Congress again summarily refused to recognize the claims. They then took a stab at administrative relief in the territories, petitioning the commissioners adjudicating the morass of land claims at Vincennes in 1804. Clear directions from Washington, however, barred recognition of the Companies' deeds for the same old reason: the United States would never validate "treaties made between the Indians and private persons." In 1805, the secretary of the treasury summed up the consensus view of the Companies' claims: "[they] have not the shadow of a title to support their claim . . . I speak with perfect confidence on this point, because I have read all the Memorials of the Companies and never heard of a more frivolous claim." Two years later the secretary made clear that the United States would have "no hesitation" removing claimants under the Companies' deeds.47	73
The Companies were dormant until 1810. In that year they submitted a fresh memorial to Congress, apparently authored by a new shareholder, the prominent Supreme Court litigator and land speculator Robert Goodloe Harper.48 While formally maintaining a right to the entirety of the lands described in two deeds, the Companies were "ready to admit, that the measures adapted by the Government for the defence and settlement of the neighboring country have greatly enhanced the value of this property" and hence were willing to yield a portion of their lands. On the other hand, the Companies argued that they had rendered a valuable service to the United States: the nation, the memorial declared, had paid an unusually low price to the Indians for lands recently purchased that overlapped with the Companies' tracts. Balancing the benefits that each side provided the other, the memorial proposed one of the Companies' most generous compromises: that the United States grant the Companies title to the portion of the second (southern) grant in the Wabash Company deed east of the Wabash River. This would have left the Companies with roughly an eighth of the lands they originally purchased.49	74
Congress rejected the memorial of 1810 on the same grounds used by the British to reject the companies' claims before the Revolution: it contradicted the then-governing Proclamation of 1763 and the universal rule, introduced "at a pretty early day . . . regulating the intercourse with Indian tribes, which requires the concomitant assent or subsequent sanction of the Government to a conveyance of lands by Indians, in order to render it valid." The Committee on Public Lands did admit that "a few solitary instances may be found, in the early settlement of the country, of Indian deeds of land being recognised as valid," but refused to make any more such exceptions. Questioning whether the earlier purchases allowed the U.S. to buy the same Indian land more cheaply, the committee found that, even admitting this, "to recognize such unauthorized proceedings of individuals with the Indians . . . would encroach upon the great system of policy so wisely introduced to regulate intercourse with the Indian tribes."50	75
The last recorded corporate act in the Companies' minutes is the gift of a share in 1812. The Companies resubmitted the 1810 memorial, with only trivial additions in 1816, but Congress never even bothered to respond. The Companies' next stop would be federal court. Litigation requires an adversary, however, and until the United States extinguished Indian title and sold land within the tracts purchased by the Companies, there was no way to test title in a lawsuit.	76
The Companies did not have to wait long. By the early 1800s the United States had extinguished most Indian claims in Ohio and began purchasing numerous tracts in Indiana and Illinois that intersected with the Companies' claims. It took a negotiator willing to cut a few corners to buy Indian lands. General St. Clair "had been ordered to purchase cessions from the Indians, but on his first visit he was unable to discover any nation with a clear title to the southern lands of Illinois." William Henry Harrison, who negotiated all the major treaties discussed in this section, had no such compunction, "showing a readiness to enter into negotiations with any faction or isolated band of Indians who would consent to a relinquishment of land titles . . . "51	77
Before Harrison negotiated any major land cessions, President Jefferson made two important points to him regarding negotiations with the Illinois tribes. First, in an interesting addendum to the discovery rule, Jefferson asserted that the United States took title to the lands of any tribes that became extinct. Applying this law to the facts at hand, he noted that "[t]he Cahokias [an Illinois tribe] having been extirpated by the Sacs, we have a right to their lands in preference to any Indian tribe, in virtue of our permanent sovereignty over it." Similarly, Jefferson claimed for the nation a "strip along the southern bank of the Illinois River . . . because it was the property of the Peoria Indians who had become extinct." He also advised Harrison that the Kaskaskias, another Illinois tribe, were reduced to "a few families, exposed to numerous enemies, and unable to defend themselves, and would cede lands in exchange for protection."	78
Harrison appears to have heeded this advice when, in August 1803, he obtained all the lands in the Illinois Company's deed and more in a huge 8.9 million acre cession from the Illinois tribes. The cession specifically notes the tribes were "reduced to a very small number . . . unable to occupy the extensive tract of country which of right belongs to them . . . " And although he did obtain signatures from the supposedly extinct Cahokias, he did not bother looking for representatives of the Peorias. The meager surviving bands ceded their lands in large part for the protection of the United States, as anticipated by Jefferson and promised in article two of the treaty.	79
Neighboring Indians disputed the title of such a "decimated and impotent tribe" to so vast a territory, and there was "considerable doubt as to their rightful claim to the land they had ceded." A recent account labeled the 1803 treaty with the Illinois tribes as "[t]he most notorious" of Harrison's dealings with tribes having only tenuous claims to lands ceded. Harrison dealt with "the remnants of the Kaskaskias under Ducoigne, a band that numbered, according to the United States, only 30 men, women, and children in 1796 but that ceded [all of] southern Illinois [and much of central Illinois] to the United States . . . "52	80
When Harrison began buying lands in the area of the Wabash Company's claims, the United States, otherwise disdainful of Indian deeds, decided to take a page from the United Companies' book. Secretary of War Henry Dearborn counseled Harrison to convince the Piankashaw and Kickapoo tribes to cede their lands, without payment, based on the earlier sale to the Wabash Company. Apparently, however, this plan was foiled by other tribes' vehement objection that the Piankashaw had lacked the right to sell the lands in the first place.53	81
In part because the United States had to deal with so many tribes, acquisition of the lands described in the Wabash Company's deed occurred through a series of cessions. Accepting the weakness of the Piankashaw's claim to all the lands sold to the Wabash Company, the federal government bought 2.8 million acres that included the first (northern) parcel in the Company's deed, in the fall of 1809, from a group of five other tribes and never paid the Piankashaws a cent. The Piankashaws were among the tribes ceding lands included in the second (southern) parcel they granted to the Wabash Company, but they were not alone.54	82
The United States began surveying these purchases, a necessary prerequisite to sales, almost immediately after finalizing the treaties and opened land offices at Vincennes, Indiana, and Kaskaskia, Illinois, in 1804. The War of 1812 and the uprising led by Tecumseh and his brother, the Prophet (Tenskwatawa), however, delayed the process of bringing any land in Illinois to market. Before these conflagrations, however, the United States did sell a significant amount of land in the Vincennes district, overlapping both of the Wabash Company's parcels.55	83
This presents a puzzle. Why did the plaintiffs in M'Intosh not bring their suit as soon as sales were made in the Vincennes district, instead of waiting until 1820 to file, alleging conflicts with later sales out of the Kaskaskia office? One possibility is that they did not want to litigate in a territorial court. Hence they waited until Indiana and Illinois achieved statehood (in 1816 and 1818 respectively). The next section offers a different explanation: the litigation was driven by the coincidence of the death of a claimant (Thomas Johnson) and the identity of his executor (Robert Goodloe Harper).	84
E. The Litigation of Johnson v. M'Intosh
In their first years of service, officials at the Kaskaskia, Illinois, land office devoted themselves almost exclusively to sorting out the tangle of preexisting French, British, and early American claims over southern Illinois lands. New business picked up when surveyors finished their work in the district and Congress passed a "preemption" act giving occupiers and improvers (squatters) the right to purchase their claims at the statutory minimum price of two dollars an acre. Like most preemption acts, Congress limited individual claims to a single quarter section (160 acres). Preemptioners purchased about 110,000 acres from 1814 to 1815. The president (Madison) Finally proclaimed open market land sales, by auction, on May 16, 1816, and business boomed.56	85
This chronology raises questions about the purchases by the defendant in M'Intosh, William McIntosh.57 He obtained the lands at issue in the case (Fifty-three tracts amounting to nearly 12,000 acres) on April 24, 1815, before the first public sales.58 The law limited preemption claims to 160 acres, and it is extremely doubtful that McIntosh had claims dating from British or French rule to over 11,000 acres scattered all over southern Illinois. How, then, did McIntosh manage to get patents from the federal government to all this land, at the statutory minimum price, before the government auctioned it to the public? There are two possibilities, both consistent with what little is known of William McIntosh.	86
First, McIntosh may have engaged in a massive fraud, claiming preemptive or colonial rights to acreage one hundred times the per person limit. This undoubtedly would have required the assistance, or at least the acquiescence, of a local land office employee. McIntosh helped the register of the Kaskaskia land office, Michael Jones, obtain his job and "politely offered to become [one of Jones's] sureties." There is no direct evidence that Jones assisted McIntosh in any malfeasance, but land office registers could, and did, assist in myriad land frauds on the frontier. Given the size of McIntosh's claims, however, it seems probable that officials in Washington would have noticed any irregularity, and so outright fraud seems unlikely.	87
It is more likely, and consonant with a large body of evidence, that McIntosh obtained these lands from preemptioners and colonial claimants in return for legal services rendered to help establish their claims. He served as the voice of French claimants in southern Indiana and Illinois as early as 1803, and William Henry Harrison, governor of the territories, identified McIntosh as one of the "the principal councellors of the Kaskaskias Speculators . . . " It is strange, however, that McIntosh chose to file all these claims, accumulated over ten years or more, on a single day.59	88
By some accounts, McIntosh was not faithful to his clients, or to the law, in providing legal guidance in return for a portion of land claims. "By magnifying the difficulty of obtaining confirmations and other vile deceptions, upon those illiterate and credulous people, he succeeded frequently in obtaining 200 out of 400 acres, for barely presenting the claim." Governor (later President) Harrison accused McIntosh of controlling an "illiterate Ignorant Irishman . . . possessed of a large property" and cited documents purporting "to shew McIntosh guilty of perjury . . . [McIntosh] will swear any falsehood whatever to gain any of his purposes . . . the greatest stigma I shall incur is that of having my name Coupled with [McIntosh and other] such Scoundrels . . . " It is likely that McIntosh suborned perjury. "McIntosh had written in the English language, two depositions, to be sworn to by a Frenchman, who could neither write, read, nor speak one word of English . . . " When this Frenchman appeared before the land commissioners, he "declared with horror in his countenance, that he had never sworn to the facts there stated, and that if they really contained those facts, they had been inserted by McIntosh, without his knowledge or consent."	89
These sources, however, must be read with a grain of salt. Although Harrison and McIntosh began as partners in purchasing lands at the rapids of the Wabash River in 1800, they had a falling out in 1804. McIntosh opposed Harrison's desire to advance the Indiana Territory closer to statehood, since the administrative costs involved would require levying higher property taxes--anathema to a land speculator like McIntosh. The two publicly traded barbs. McIntosh apparently went too far by accusing Harrison of cheating the Indians, and Harrison obtained a $4000 libel judgment.60	90
The historical record of the plaintiffs in M'Intosh is less colorful. Thomas Johnson, an original investor in the Wabash Company, was the first governor of the state of Maryland and served briefly on the United States Supreme Court from 1791 to 1792. He died on or about Nov. 1, 1819. The plaintiffs, his son Joshua and grandson Thomas Graham, were the primary beneficiaries of his will. Perhaps more importantly for the commencement of the M'Intosh litigation, the will made Robert Goodloe Harper executor of the estate. Harper apparently determined that Johnson's estate owned shares and decided to go to court in a final stab at a happy ending to the long and sad story of the United Illinois and Wabash Land Companies.61	91
Looking for a federal patent holder to sue, as a test of the validity of their claim under the Wabash Company's Indian deed, Johnson and Graham, probably led by Harper, targeted McIntosh. As one of the largest landholders in the Illinois and Indiana territories, McIntosh was a natural adversary, but he does not appear to have been a real one. Mapping the United Companies' claims alongside McIntosh's purchases as enumerated in the district court records shows that the litigants' land claims do not overlap. Hence there was no real "case or controversy" between the parties and the federal courts lacked jurisdiction. Even so, the record makes clear that the defendant McIntosh made no effort to dispute the plaintiffs' questionable assertion that the parties' claims conflicted. In addition, the courts did nothing to establish the existence of a true dispute between the litigants. It is impossible to determine whether the parties and the courts were negligently ignorant, willfully ignorant, or knowing participants in yet another early Supreme Court case that was arranged by parties who knew or should have known that no true conflict existed.62 Everyone, it seems, wanted a Supreme Court decision deciding once and for all whether private purchases from the Indians were valid.	92
Given the location of his properties, it is at first puzzling that the plaintiffs contended that McIntosh's patents conflicted with the Wabash Company's southern tract. The Supreme Court opinion specifically limited the controversy to claims "by the plaintiffs, under a purchase and conveyance from the Piankashaw Indians"--grantors to the Wabash Company only. As the map shows, none of McIntosh's tracts come within fifty miles of the Wabash Company's claims. It would have been more plausible to argue that McIntosh had claims that conflicted with the Illinois Company's southern tract.63	93
Real property law at the time, however, may have required the plaintiffs to assert claims under the Wabash Company deed, since they took their interest from a grantee in that deed (Thomas Johnson). While the United Companies' articles stated that, on unification, they held their lands "in common," there is no record that they executed deeds conveying mutual coownership interests. Without such a formality, it is doubtful that courts in the 1820s would have recognized any real property interest of successors in interest under the Wabash Company deed to the lands described in the Illinois Company deed. Hence the plaintiffs claimed, and the defendant and courts agreed, to what the map shows is clearly not possible: that McIntosh's property overlapped the southern Wabash Company tract.	94