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vexatious interruptions which he experienced, did Mr. Lawless say or do any thing calculated, in the slightest degree, to cause offence? Not at all. He submitted patiently to the strictures of the court, and argued the case in the most respectful language. He endeavored to satisfy the Judge that bis opinion had not been misrepresented, and that the article was neither contemptuous nor libellous; and that, if even it were libellous, the editor was protected from summary punishment by the guaranties of the constitution. Some cases were presented to the court to sus tain these positions. All his pleas were overruled, and the Judge was about to pronounce judgment. At this moment, Mr. Lawless, discovering that the matter was likely to become serious, requested the editor to give up bis name as the author of the article, wishing himself to meet the consequences. No sooner was this done, than the Judge issued a rule on Lawless, returnable forthwith, to show cause why an attachment should not be issued against him for contempt; and also why he should not be suspended from practice.

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The witnesses declare that the feelings of the Judge continued to rise gradually until they reached the highest point of excitement. The rule against the printer had described the article signed "A Citizen as a false statement, tending to bring odium on the court, and impair the confidence of the public in the purity of its decisions. Not satisfied with this description, the Judge denounces the article in his rule against Lawless as containing "malicious" as well as false statements, and ascribes to it an "intent to impair the public confidence in the upright in tentions of the said court, and to bring odium upon the court; and especially with intent to impress the public mind, and particularly many litigants in this court, that they are not to expect justice in the causes now pending therein; and with intent, further to awaken hostile and angry feelings on the part of the said litigants against the said court, in contempt of the same court."

Now, who but one blinded by his passions could have given such a description of this article? Is there any gen tleman within the sound of my voice, who, upon reading the commentary will say it is, in any degree, applicable Lawless came before the court condemned already. When his counsel attempted to prove that the article was not a contempt, they were told they would not be permitted to argue that question. The Judge would not hear a word upou that subject. He had determined it to be a contempt, and his will was the law. A citizen of the United States is thus brought before a judge upon a criminal charge involving in its punishment consequences of the most serious character, and the lips of his counsel are sealed upon the principal point of his defence. Not being permitted to present this view of the subject, they argued the remaining question with great ability, and attempted to satisfy the court that, even admitting the article to be contemptuous, it should be tried and punished in a different manner. Their arguments were all in vain.

Now comes the concluding scene, which, to my view, displays the evil intention-the improper motives of the Judge, in the clearest light. He was nearly blind, and unable to read the article himself. At his request, it was read by the district attorney, paragraph by paragraph, and, at the end of each, the Judge made his commentaries. He was much excited, his manner was very warm, and he was occupied two or three hours in delivering his opinion. And what was its whole tenor Instead of the calm, dignified, and impartial manner which becomes a judge upon all occasions, and particularly when he himself is also the party, we find him heated, acrimonious, and He often used the words "calumniator," "coutemptuous," "slanderous," "libellous," as applied to Mr. Lawless and his article. He even forgot himself so far as to say that in China the house of such a calumniator would be painted black, as an evidence of the blackness

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[H. or R.

of his heart, and as a warning that the whole world might avoid him. Throughout, Lawless uttered not a word, no a murmur, in reply. At length, able to endure the abuse no longer, after consulting his friends, he rose, and left the court-house.

Had you, Mr. Chairman, been a member of the bar placed in the situation of Mr. Lawless, what would have been your conduct on the occasion! Could you, with feelings lacerated and excited to frenzy, have sat silently and patiently, and heard the Judge for two or three hours uttering every odious epithet against you, and even declaring that in China your house would be painted black, as an emblem of the blackness of your heart?

At the conclusion of this scene, Mr. Lawless was sent for, and sentenced to be committed to prison for twentyfour hours, and suspended from the practice of his profession for eighteen months. He was thus, by the arbitrary mandate of the Judge, not only deprived of his personal liberty, but of the means of supporting himself and his family. And yet we are to be told that no malice, no evil intention, dictated this proceeding; that the only motive of the Judge was to preserve the administration of justice from contempt. I have stated the facts, and shall leave every gentleman to draw his own conclusions.

I admit that we ought not to impeach a judge simply because his conduct has been illegal. All must agree that this may be the case, and yet he may not deserve punishment. But illegal and oppressive proceedings, accompanied by violence of manner, by passion, and by the appearance of revenge, present a very different case, and give birth to very different conclusions.

I shall not at present permit myself to be drawn into a particular examination of the cases cited by the Judge. His case stands alone. No contempt whatever exists in the article. It is the mere opinion of a lawyer against that of a judge. From the revolution in England until this day, no case can be cited which bears any parallel to the present. If there be such a one on record in that country, I hope it may be produced.

Here I might, and perhaps ought to conclude my remarks, but it seems proper and respectful to the committee that I should state what I believe to be the law in regard to contempts of court. In England, there are two kinds of such contempts; the one direct, the other constructive. From necessity, the power to punish direct contempts in a summary manner must exist in every court of justice. Without such a power, they could not proceed with their business. In its exercise, this power is generally confined to cases of official misconduct in the officers of the court, to the disobedience of parties, jurors, and witnesses, to its lawful orders and process, and to misbehavior in the face of the court, tending to obstruct the administration of justice. If a witness shall wilfully disobey a subpoena, the court from which it issued must, in the nature of things, possess the summary power of compelling his attendance, and punishing him for contempt, by attachment. So, if a sheriff refuse to obey an order of court, necessity requires the exercise of a similar power. If a by-stander will violate order and interrupt the court whilst transacting the business of the country, self-preservation demands that it should possess the power of summarily punishing such an offender. The Supreme Court of the United States have decided that an attempt to bribe a member of this House, although the offer were made in a letter written at a distance, is a direct contempt of its authority, and may be punished by the House with fine and imprisonment.

Constructive contempts are, in their nature, of a very different character, and, under a free Government, will ever be viewed with jealousy and suspicion. The trial of such contempts, in a summary manner, deprives the accused of the protection of a grand and of a petit jury, and often constitutes the injured party both the judge

H. OF R.]

Impeachment of Judge Peck.

[APRIL 21, 1830.

and the avenger of his own wrongs. The judge, when I think proper to comment upon the opinion which had been the object of the contempt, becomes himself the accuser, delivered. tries the offence, and punishes the offender at his own arbitrary discretion, with as heavy a fine and as long an imprisonment as he may think proper. Is not this a power in its nature revolting to every freeman? Judges do not cease to be men when elevated to the bench. They are still but frail human creatures. Is it not then a dangerous, a tremendous power to make any man the judge in his own cause of a contempt committed against himself, and under excited feelings to limit him, in the measure of the punishment, only by his own mercy and his own sense of justice Arbitrary discretion thus takes the place of positive law.

What is the question which Judge Peck has attempted to raise in his defence? Although I deny that any facts exist in this case, out of which such a question can arise, yet it may be well to consider the nature of the power which he contends belongs to the judiciary. I never did expect to hear it seriously and gravely asserted, by a judge of the United States, before this House, that, if a libel were published against him affecting his judicial character in relation to an opinion which he had delivered upon the final decision of a cause, he could, in a summary manner, try and punish the offence according to his own discretion. If such a power exists in any case of I shall not affirm that no case exists in which the libel, it is for the purpose of securing justice to the parties courts of the United States ought to possess the power of in a cause depending. When the cause is decided, the punishing summarily for constructive contempts. I can judge, in relation to it, is placed in the same situation with conceive but of one; and then this power, if it exists, is any other public officer, and must suffer the fate to which conferred upon the judge, not to enable him to avenge we are all subjected. If he feels that his general conduct and his own wrongs, real or imaginary, but to prevent injustice character are not a sufficient defence against attacks of between the parties to a cause actually pending in court.the press, like every other citizen, he must seek redress If, whilst a cause is depending, particularly a case to by instituting a public prosecution or a private action. In be determined by a jury, an inflammatory (publication such a case, he possesses no peculiar privileges. He can should be made in a newspaper, touching the question to not become the judge in his own cause. Will it be conbe decided calculated to enlist public feeling in favor of the tended upon this floor that such an arbitrary and unconone party, or prejudice it against the other, the court may stitutional power exists in the judges? That they, in this possibly, under such circumstances, inflict summary jus-respect, stand upon a different footing from all other pubtice upon the author. If such a power does exist in this country, it is the utmost limit. But whether it exists or not, if such had been the circumstances of the case now before the committee, I should have been the last man in this House to recommend an impeachment.

lie men? Why should they be made the judges of such injuries against themselves, more than the President of the United States, the members of this House, or any other high officer of the Government? What, sir, after a judge has committed bis final opinion to the world, upon a great In Pennsylvania, where the courts are as much respected constitutional question-a question in which the rights and as in any other State of the Union, even this power has liberties of the people may be deeply involved, must the always been denied; and, in 1809, the Legislature of that citizen who attacks its doctrines, even in inflammatory State passed an act, declaring that no publication out of language, do it under the penalty of being fined and imcourt, even concerning a cause depending, should be con-prisoned at the arbitrary will and pleasure of the author! strued into a contempt, so as to render the offender liable if such be the law, wo be to the man who shall be bold to attachment and summary punishment. They thought enough to hazard a free commentary upon any opinion of it most expedient to leave the party who deemed himself a tyrannical judge. Had this doctrine been established injured, to proceed by indictment or action at law to ob- ten years ago, the distinguished individual who is now and tain his redress. I have never known the least incon- I hope may long continue to be the Chief Justice of the venience to arise from this legislative enactment. United States, if the will had not been wanting, might have imprisoned many of the most distinguished patriots of the country, for severe strictures on his constitutional decisions.

Long before this act had passed, the exercise of this summary power by the courts of that State, in the case of a lis pendens, had been made the subject of legislative investigation and impeachment. The case of Oswald oc- It may be worthy of remark, that, if this formidable curred in 1788; and although he had been fined and power does exist in the judiciary, it exists without appeal. imprisoned for the publication of a most inflammatory The principle is well settled, that in cases of commitment article, in relation to a cause then actually depending be- for contempt the injured party has no redress. He must fore the Supreme Court of Pennsylvania, the conduct of endure the penalty, without the possibility of having his the judges became the subject of a most serious investiga-case reviewed by any other judicial tribunal. tion by the Legislature. In the case of the Common One might almost suppose, from what has transpired, in wealth vs. Passmore, which occurred in 1802, although he this case, that Judge Peck had forgotten that there was an had been the author of a publication which on its face American revolution in 1776, and that the federal constituwas clearly intended seriously to injure the character of tion has guarantied to citizens of the United States some one of the parties to a cause depending in relation to that rights which are not possessed by the subjects of the Crown very case, the judges of the Supreme Court were im- of England. There was a portion of his cross-examination peached, and were within three votes of being convicted of the witnesses of so strange a character that I could not, by a majority of two-thirds of the Senate, for fining and im- at the time, conceive what was his object. I shall read a prisoning him in a summary manner for this alleged con- few of his questions, with the answers of the witnesses. tempt. Although no man can read that publication without He asked, “ Was it insisted in the argument that the liberty at once pronouncing it a direct attempt to interfere with of the citizen, of speech, and of the press, would be violatthe due course of justice, yet thirteen out of twenty-foured by the proceeding contemplated by the rule?" A. "It Senators believed the sentence of the court to have been an was." "Was it insisted that the constitution, and the illegal, arbitrary, and unconstitutional exercise of power, right of trial by jury, were also violated?" A. "It was." for which the judges ought to have been deprived of their" Was the proceeding represented to be incompatible offices. These cases, I presume, produced the act of 1809. with the genius of our Government?" A. "I believe it From its language, it does not appear the Legislature en- was." His defence has cast some light upon the object of tertained the most remote idea that any judge, when the cause was no longer pending, and after final judgment had been rendered, would attempt, as Judge Peck has done, to punish in a summary manner any citizen who might

these questions. However strange it may appear, it seems he was desirous of casting even a darker shade upon his conduct, that it might more nearly resemble some Eng lish precedents, in which he alleges the liberty of the

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citizen, of speech, and of the press, and the right of trial |
by jury, had been interposed to shield the accused, and in-
terposed in vain. Let him speak for himself. He says
"In the present instance, although the petitioner, Mr.
"Lawless, has attempted to give solemnity to his com-
"plaint, by representing the freedom of the press, the
"right of trial by jury, and the liberty of the American
citizen, to have been violated in his person, in the sum-
"mary punishment for a contempt of court, inflicted on
"him, yet your memorialist has no fear of satisfying this
"honorable House, if an opportunity shall be afforded
"him, that these are the trite topics continually resorted
"to, and resorted to in vain, in Great Britain, whenever
"the courts of the country have found it necessary to pu
"nish summarily a contempt."

Heaven forbid that these topies should ever become trite in the United States! that they should ever lose their protecting energy

[H. OF R.

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The House having resolved itself into a Committee of the Whole on the State of the Union, and the bill from the Senate, "To provide for an exchange of lands, with the Indians residing in any of the States or Territories, and for their removal west of the river Mississippi," being It is, I believe, admitted, at this day, by all classes of under consideration, Mr. HUNTINGTON rose, and said; ..politicians, that the sedition law was unconstitutional. If the bill for which this has been substituted, though What was the argument in favor of that measure? The nearly identical with it, had been accompanied by a report Federal Government, said its advocates, must necessarily from the committee, confined to a statement of facts and possess the incidental power of protecting itself against principles connected with what are said to be the objects malicious libels; an argument much stronger when appli- of the bill itself, he should not have troubled the House ed to that Government, the two Houses of Congress, and with any remarks upon it. I would not, said Mr. H., the President of the United States, than to Judge Peck. have mingled in a debate which would then have been Yet he, for the purpose of preserving his judicial dignity, limited to the expediency of adopting the legislative proclaims a power which Congress could not confer upon visions proposed to be enacted. But as the committee him. If you were to pass an act to-morrow, authorizing have reported the bill, "in conformity with the sugges the judge to try and punish libels, in cases between third tions contained in the report, and to effect the object repersons, it would be a dead letter on the statute book, on commended in the message of the President," as that account of its repugnance to the constitution. But yet report and that message contain sentiments with which he claims the power of trying and punishing such offences, I do not accord; as they advance principles which, in my even where he himself is the party. The sedition law was judgment, are not teuable-principles which, if I undermoderation itself, compared with this claim. Under its stand them correctly, deprive the Indian tribes to whom provisions, the accused was entitled to the benefit of a they are applied, of rights well defined, long enjoyed, and graud and petit jury, and had an opportunity of confront secured and guarantied by the most solemn compacts, ing the witnesses against him, face to face. In the case and the plighted faith of a nation which, hitherto, has now before the committee, Judge Peck combined in his own been, and always, I trust, will be, jealous of its own honor, person the offices of the prosecutor, the grand jury, the and who will not set the first example of a christian nation, petit jury, and the judge; and be punished, according to who will disregard fits own engagements, because they his own discretion, the libel committed against himself. have been entered into with a weak, defenceless, unproIn such a proceeding, it is not wonderful that the guaran- tected people, I have not been willing to give a silent vote ties of the constitution, however strong their language, upon the proposition now before us. My own sense of should have been resorted to in vain. The constitution duty, and the sentiments of a great portion of my constitudeclares that Congress shall make no law abridging the ents, who take a deep interest in this subject, demand of freedom of the press; but Judge Peck punishes the exer- me that I should express their opinions and mine, on a cise of this freedom even when he himself is the party. topic which enters into the best feelings of our nature, Should the committee sanction these principles, the Judge which is connected with the honor of our common counwill indeed have established that the constitution, the right try, and the welfare of a race once powerful, but now of trial by jury, and the liberty of the press, are nothing weak, and looking to us with anxiety, but not without better than trite topies. Need I urge this argument fur-hope for that protection which the faith of the Governther!

On this floor, it is scarce necessary to refer to the English law for the purpose of showing what libels are consider ed contempts of court in that country. I have examined all the English authorities to which I had access, and I have not been able to find a single case in which their courts have summarily punished a libel, except in causes actually depending. Although the language of Blackstone and Lord Hardwicke is sufficiently general to embrace other cases, I doubt exceedingly whether one can be found in the books, where the doctrine was applied in practice after the cause had been decided.

From the very first sentence of the opinion of the Tennessee court, in the case of Derby, it appears that there was a cause pending. What was the particular character of that contempt, is not stated in the opinion; and thus we are left wholly in the dark in regard to its merits.

It is hardly necessary to remind the committee that I have been arguing the question as if the publication of Mr. Lawless had been libellous against the Judge, instead of being the tame and respectful article signed " A Citizen."

ment is pledged to afford.

Before I enter into the examination of what are called in the report "the pretensions of the Indians, and of the obstacles which are considered as being in the way of their indulgence by the Government," I solicit the attention of the committee to the language of the Executive, in his message at the opening of the session, and to the construction or commentary which has been put upon it, in another place. I shall examine it with all the respect which is due to the Chief Magistrate of this nation, and to the elevated and honorable station which he occupies; but at the same time, and holding his advisers responsible for it, I shall make this examination with all the freedom of a representative of the people sworn to support the constitution of the United States. I noticed with much pleasure in the inaugural address of the present Executive, the following expressive sentence: "It will be my sincere and constant desire to observe towards the Indian tribes within our limits a just and liberal policy; and to give that humane and considerate attention to their rights, and their wants, which are consistent with the habits of our Govern

H. OF R.]

this discussion.

Removal of the Indians.

Having thus, very briefly, adverted to the opinions entertained and avowed by the Executive in regard to the "pretensions" of the Indian tribes, on the supposition that their construction of the treaties made with them, and of the laws enacted to regulate the intercourse with them, is correct, I proceed to consider the great questions involved in this discussion.

[MAY 18, 1830. ment, and the feelings of our people." How far this Houses of Congress, shall become a law, is a dead letter. pledge has been observed, will be seen in the progress of The President, if he can lawfully refuse to execute a law, or enforce the provisions of a treaty, because he has conIn the message, Congress are informed that the Presi-stitutional objections or scruples, constitutes himself the dent has been called on by a portion of the Southern executive and judicial departments of this Government. tribes for protection, in consequence of the extension by Such, in my judgment, is not his prerogative; and I bethe States of Georgia and Alabama of their laws over lieve it is the first time in the history of this nation, since these tribes; that, in answer to this application he stated the adoption of the constitution, that opinions like these to them that their attempt to establish an independent have been advanced. Sure I am that they were not the Government would not be countenanced by the Execu opinions of any of his predecessors, or of those wise men tive of the United States; that it was too late to inquire who framed the constitution, or of the people of this counwhether it was just for the United States to include these try; and I have deemed it indispensable to advert to them, Indians and their territory within the bounds of new States, lest it might be thought from silence that they met with whose limits they could control; and that they should be universal approbation. The Executive has no constitudistinctly informed that if they remained within the limits of tional right to say he will not execute a law, because he the States, they must be subject to their laws. The same opi considers it void for want of authority to enact it. No such nions are advanced in the letter of the Secretary of War to discretion has been confided to him; I trust it never will the Cherokee delegation, dated April 18, 1829, in which be; and if his scruples are such as to deter him from enthey are told, by order of the President, that the State of forcing it, let him resign the trust which has been confided Georgia has extended over their country her legislative to him. This is the only course he can adopt under such enactments, in virtue of her authority as a sovereign, inde- circumstances. The legislative and judicial departments pendent State, which she and every State embraced in are powerless, and the Government is a rope of sand, if the confederacy, from 1783 to the present time, when such opinions are entertained and acted on. Every law may their independence was acknowledged and admitted, pos depend for its execution upon the will of the Executive. sessed the power to do, apart from any authority or op. And in these days of strict construction, it may be feared posing interference by the General Government. In these that few legislative enactments will pass unhurt through documents, then, we find the legislation of Georgia and this ordeal of Presidential discretion. Alabama over the Indian tribes within their chartered limits, sustained, as of right, and an explicit avowal made that the President will not interfere to prevent it. And what is the construction put upon this language? Not merely that the operation of the State laws is not to be op posed, because the guaranties contained in treaties with the Indians do not require it; not that, if they did require it, the existing laws are insufficient for that purpose, but "because," as stated in the report to the Senate by the Committee on Indian Affairs of that body, "in the opinion of the Executive, constitutional objections exist, which it is not in the power of Congress to remove, by any law which they could enact." If this be the right in terpretation of the views entertained by the Executive, the doctrine is advanced, that treaties made with all the forms and solemnities known to the constitution, ratified by the President with the consent of his constitutional ad- In the letter from the War Department, before referred visers, and thus made, so far as the executive branch of to, the Secretary says, "an interference to the extent of the Government can make them, the supreme law of the affording you protection and the occupancy of your soil, land, and declared so to be by the constitution, are not to is what is demanded of the justice of this country, and be regarded and enforced, if, in the opinion of the Presi- will not be withheld;" though he adds what would seem dent. such treaties contain provisions inconsistent with to make this interference of little, if any use, looking very what considers the legitimate rights of the States; or, much like "keeping the word of promise to the ear, and expressed in other words, if the Executive deerns a law of breaking it to the hope." It is in these words: Yet, Congress, or a treaty duly ratified, to be an encroachment in doing this, the right of permitting to you the enjoyment upon State rights, or for any other reason, an excess of of a separate Government within the limits of a State, delegated power, he is at liberty to refuse his aid in caus- and of denying the exercise of sovereignty to that State ing them to be faithfully executed." Is this a sound within her own limits, cannot be admitted. It is not within interpretation of the duties which the constitution has de- the range of power granted by the States to the General volved upon the President? Is he made the judge of the Government, and, therefore, not within its competency to extent of the powers of Congress, or the treaty-making be exercised. No remedy can be perceived, but a remopower, after that power has been exercised in the man- val beyond the Mississippi, where alone can be assured to ner prescribed by the constitution? Has he been consti- you protection and peace. To continue where you are, tuted, in such cases, a judge, to determine whether trea-within the territorial limits of an independent State, can ties are constitutionally binding? whether laws which have promise you nothing but interruption an disquietude." been enacted are void, for want of power to enact them! And the President, in his message, speaking in reference If so, there seems to be no necessity for the clause in the to the same tribes, says; "Though their emigration should constitution, which provides that "the judicial power be voluntary, yet it seems visionary to suppose that claims shall extend to all cases in law and equity arising under the can be allowed on tracts of country on which they have constitution, the laws of the United States, and treaties neither dwelt nor made improvements, merely because they made, or which shall be made, under their authority." If have seen them from the mountain, or passed them in the so, there is no division of the department of this Govern- chase." It will be observed that this language is spoken ment into executive and judicial: the latter, for all prac- of the Cherokees, who have dwelt on, and improved their tical purposes, is annihilated; and the provision, that a bill lands; and seems, at least, to imply that they have no t which has been returned by the President with objections, to the lands within their boundaries. But it is unnecessareconsidered, and then approved by two-thirds of both ry to make further reference to the message. I shall con

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The report denies to the Indian tribes any title whatever to the lands which they occupy within the chartered limits of any State; and asserts a right in the States within which they are located, to extend their legislative enactments over them, and, consequently, a power to annihilate their political existence as communities, to be governed by their own laws, usages, and customs. Nor does the Executive, in his message, acknowledge any title to the lands as subsisting in the tribes.

MAY 18, 1830.]:

Removal of the Indians.

[H. OF R.

tent myself with referring to the report; and, so far as I of acquiring that right. In other words, the Indians have am able to comprehend it, there is not only no acknow the sole right of occupancy. To that they have a just ledgment of any title in the Indian tribes, but the spirit and legal right, and it includes the use in such a manner as of every part of it is utterly at war with any such acknow- they please, and is indefinite in duration, and of which ledgment. they cannot be dispossessed, except by cession or compact. The committee say, (p. 4.) "It is certain that posses- The Government have the exclusive right of purchase, and sion, actual or constructive, of the entire habitable portion the ultimate right, whenever the possession becomes vaof this continent was taken by the nations of Europe, di- cant, by voluntary dereliction, or by the extinction of the vided out, and held originally, by the right of discovery as tribes. between themselves, and by the rights of discovery and I think, also, it can be shown that these tribes are sepaconquest, as against the aboriginal inhabitants. The pre-rate distinct communities, wholly independent of the States; tensions of the Indians to be the owners of any portion of the soil, were wholly disregarded by the Crown of England."

not subject to their legislation, and possessing the right of self government—the right to be governed by their own laws, customs, and usages; and under no restraint, except such as they have imposed upon themselves, in their treaties with the United States.

Here the opinion is advanced, that the Crown by discovery and conquest obtained either the possession, or right of possession, of the whole of the soil then and now occu- The foundation of their title is occupancy. They have pied by Indian tribes, and admitted no right in these tribes been in possession, claiming the right to the soil, from our to any portion of it. The title and the possession being first knowledge of them. They were found here when thus in the Crown, it permitted the Indians, in all of them, this country was discovered. They, and they only, have to be governed or otherwise disposed of by the colonial possessed it, and this occupancy has been from time immeauthorities, without any interference on its part, until morial. Writers on jurisprudence agree in the proposiwithin a short period before the revolution. And in all tion" that the original right to all kinds of property arose. the acts, first of the colonies, and afterwards by the States, from preoccupancy, and that in a state of nature every the fundamental principle that the Indians had no rights, one might possess himself of, and retain, any vacant subby virtue of their ancient possession, either of soil or sove-ject. The first occupant had a right to grant, cede, or reignty, has never been abandoned, either expressly or by transfer the subject he had possessed himself of, to such implication. persons, and upon such terms, as he thought proper: and if, before such grant, cession, or transfer, the occupant died, his property descended to his children. The right of transmitting property always resided in the owner, and civil institutions only prescribed the mode of carrying that right into effect. In that period of society, when countries were formed, and their boundaries fixed, we find that different districts were appropriated to the native owners, the first occupants, or, in case of vacant or derelict lands, to the first discoverers."

The principle was adopted (p. 8) that the Indians had no permanent interest in their hunting grounds; their right to hold their reserved lands can be supported on no other ground than the grant or permission of the sovereignty or State in which such lands lie. This was in the Crown before the revolution, and in the States after that event, succeeding, as they did. to the sovereignty over all the lands within the limits of their respective charters. The Indian boundaries were considered temporary. The treaties made with them were but a mode of Government and a substitute for ordinary legislation, which were from time to time dispensed with. (P. 12) Territory and jurisdic tion, considered in reference to a State or a nation, are in separable; the one is a necessary incident to the other; and as a State cannot exist without territory, the limits of that territory are, at the same time, the limits of its jurisdiction. The policy of Georgia (p. 13) has always been to contract the Indian reservations, gradually, within such reasonable limits, that no part of the country should remain uncultivated. Her policy in this respect was a part of her rights; any thing which tends to defeat its operation, is a deprivation of right. It is understood that neither Georgia nor any other State will attempt to appropriate the lands within the Indian reservations without their consent. Can it be doubted, after these quotations, that the report denies to the Indians the right both of sovereignty and soil! It would seem not: and supposing this to be its mean ing, and as expressive of the opinions of the committee, which we are called upon to adopt or reject, I proceed to an examination of the nature and extent of the Indian title to the lands within their boundaries.

In my judgment, neither of the positions assumed by the committee in their report is tenable. I think it capable of demonstration, that the right of the Indian tribes to the lands which they occupy is paramount to, and exclusive of, all others, whether nations, States, or individuals; it is a right to occupy, enjoy, possess, and use, according to their own discretion, indefinitely and forever, and, for all practical purposes, is absolute. The only restriction is that of alienation at pleasure. This power of alienation is not, and cannot be claimed by these tribes: for the right of discovery, in the first instance, and the voluntary compact of the tribes afterwards, gave to the Government of the United States the ultimate title, charged with the Indian right of possession, or occupancy, and the exclusive power

What rights over the lands inhabited and possessed by the Indian tribes, did the Government making the first discovery of them acquire? Were they such as to aunihilate the previous existing title of the aborigines to them! Not at all. The discovery conferred the right of making settlements, or forming establishments, whenever the prior right of occupancy was lawfully extinguished; connected with the right of pre-emption, and the ultimate right in fee, whenever the Indian tribes should become extinct. The power to exclude other nations from occupying, or making purchases of the natives, was an incident to the discovery, and was afterwards conferred by the Indians in their treaties.

It will be obvious that this view of the subject is correct, by referring to the uniform course adopted by the Crown of Eugland, by the colonies, by the States, after the revolution, and by the States and General Government, since that period, up to he present time; confirmed by repeated adjudications of the highest judicial tribunal of this nation.

The first attempt to dispose of a whole continent, without reference to the rights of the aboriginal inhabitants, was made in 1493, the year after the discovery of America, by Pope Alexander the Sixth, who gave it to the Crown of Spain, on the assumed principle that infidels were unjust possessors of the lands on which their Creator had placed them. This grant was accepted, contrary to the advice of the civilians and Crown lawyers of Spain; and one of the bishops, in a treatise dedicated to Charles the Fifth, holds this strong language: "The natives of America having their own lawful kings and princes, and a right to make laws for the good government of their repective dominions, could not be expelled out of them, or deprived of what they possess, without doing violence to the laws of God, as well as the laws of nations."

The English princes, though they did not acquiesce in

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