a treaty with the Indians, the treaty becomes "the supreme law of the land;" if they cannot, the treaty is a dead letter. By the third section of the fourth article of the Constitution, Congress is authorized "to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States." From what we have stated, it is evident that all the land in the occupation of Indians, not within a State, is territory belonging to the United States. Without making treaties with the Indians resident upon that territory, the same objects may be obtained, by Congress entering into such compacts or agreements with them, as policy or justice may require. It is material to ascertain the source from whence a constitutional power is deduced, although the same effects and consequences might follow, in a particular case, from more than one power in the Constitution: we can then better distinguish between use and abuse. But the effects and consequences would not be the same, whether the power to negotiate with Indians be derived from the sixth article of the Constitution, or from the third section of its fourth article. Under the sixth article, a general power might be claimed to negotiate with the Indian tribes; whereas, the power granted in the third section of the fourth article, is limited to the "territory or other property belonging to the United States." Having shewn that the thirteen States which subscribed to the Articles of Confederation, (for we refrain altogether from entering into any examination of the rights of the other States) retained the fee-simple in and the jurisdiction over the Indian lands within their boundaries, these lands cannot be comprehended within the territorial limits of the United States. Congress, therefore, can make no compact relating to them, that power being exclusively vested in the State within which the lands are contained. By recurring to the Constitution, we shall perceive, that in it the distinction between the meaning of treaties and other compacts is plainly drawn. According to the tenth section of the first article, "no State shall enter into any treaty," &c.; this prohibits a State from making treaties with foreign nations, not from entering into compacts with them, or with a sister State. To prevent these acts, a further provision was requisite. In the second clause of the same section, it is, therefore, added, that no State shall "enter into any agreement or compact with another State, or with a foreign power," not interdicting the States from any compacts with those who reside within their limits and jurisdiction.

The Report relies upon precedents to sustain the general powers of the Federal Government to conclude Indian treaties.

"By the Articles of Confederation,* Congress had the exclusive power of making treaties; at that time, and it is believed, at all times, the only mode, in a state of peace, in which the relations with Indian tribes, have been conducted in the United States." This is a mistake: relations with Indian tribes were conducted in other modes, as will be seen by the various acts of the States, both before and since the adoption of the Constitution. The State of South-Carolina, in 1786, passed a law, regulating grants, sales and conveyances of land, by the Catawba nation of Indians, within her chartered limits. Virginia passed in 1799, the law which we have mentioned. The Report itself states, that Georgia entered into a treaty with the Indians in the State, adding, that "the right of a State to enter into treaties with the Indians, was strenuously resisted by Congress.' The evidence of resistance having been made by the Congress of the Confederation to any negotiations by a State to extinguish the Indian title of occupancy, is, we believe, no where to be found. Opposition by the Congress of the Confederation, to a State legislating for Indians, or making contracts with them, when within its limits, would have been utterly at variance, not only with the resolutions of that body on the 2d of November, 1782, on the 15th of October, 1783, and on the 7th of August, 1786, which have been detailed, but with the express provisions of the Confederation itself. Since the adoption of the Constitution, we admit, that it has been the general practice of the United States to treat with the Indians; but to this there are exceptions. The State of New-York, through her own commissioners, without the sanction of the United States, extinguished the Indian title to lands within her boundaries, on the 12th and on the 22d of September, 1788; on the 23d of February, 1789; and on the 22d of June, 1790.‡ The State of Pennsylvania did the same, on the 9th of January, 1789. On the 17th of March, 1796, New-York passed "An act, supplementary to an act, entitled 'an act to empower certain persons to purchase the claims of the Indians to certain lands in this colony.'' We are not now possessed of the means of making further researches, and, therefore, cannot refer to the proceedings and acts of other States, although we recollect having met with them. We have never understood, that the Federal Government interposed any obstacles, or remonstrated against the proceedings which we have noticed. The States, by the laws which we have cited, manifested their

*

Report, p. 13.

Indian Treaties and Laws, p. 18-24.

+ Brev. Dig. Laws, S. C. v. i. p. 412. § Laws of Pennsylvania, v. ii. p. 124.

conviction, that the lands within their boundaries, were subject to their interference and control. Had every negotiation with. Indian tribes, since the commencement of the Federal Constitution, been conducted by treaties, between them and the United States, the precedents, without constitutional power, would have conferred no constitutional right. The deliberate acts of the government are to be respected; prima facie, they are to be received as legitimate: nevertheless, if upon investigation, they are found to be otherwise, we are bound to adopt a different rule. A written constitution would be a mockery, if precedents, unsanctioned by it, are to have the authority of law.

Secondly. The power to regulate commerce with the Indian tribes. By the articles of Confederation, Congress had the power "of regulating and managing all affairs with the Indians, not members of any of the States, provided, that the legislative right of any State, within its own limits, be not infringed or violated." To Congress, the Federal Constitution has committed the regulation of "commerce with the Indian tribes," without the limitations contained in the Confederation; but it has not given to Congress the power of "managing all affairs with the Indians;" if it had, these words, without any restriction, would have precluded the States, even within their boundaries, from every species of legislation connected with the Indians. The Constitution giving to Congress no other power than to regulate commerce with the Indians, all other transactions with them, are left to the States, as they had previously been. Upon precisely the same principle, that the exclusive power “to regulate commerce" with the Indians, is vested in Congress, is the power "to manage all other affairs" with them, vested in the States: the power "to regulate commerce" with the Indians, is not in the States, because it has been taken away: the power "to manage all affairs" with the Indians, remains to the States because it has not been taken away. If then the extinguishment of the Indian right of occupancy, be not a regulation of commerce, the States are now as fully authorized to extinguish that right as they ever were. Congress has the same power to regulate commerce among the States, as it has with the Indian tribes. In exercising it, could Congress prescribe the manner in which a special occupancy, or a lease for life, or a term for years, in the several States, should be surrendered? Would not the claim of an exclusive right to extinguish the occupancy of the Indians, when the fee-simple and the jurisdiction were in a State, be as obviously a usurpation of power, as to legislate for a State, in the conveying or surrendering of titles to real pro

perty, within its limits? To contend that Congress, under a power to regulate commerce, can extinguish the Indian right of occupancy, seems to us to be so illogical and contradictory, that we shall abstain from any further remarks upon it.

Thirdly. Power to declare war. As it strikes us that a power to declare war, and to extinguish the right of Indian occupancy to lands within a State, have no rational connexion with each other; and as it has, nevertheless, been elaborately argued in the Report, that the latter is included within the former, we will avail ourselves of the occasion to express our opinion upon the questio vexata of constitutional construction.

Political writers and statesmen, who have discussed this topic, have usually been divided into two classes, the one advocating a liberal, the other a strict construction of federal powers. We consider both to be in error, and that their error arises from confounding together what are so different in their nature and operation, as a statute and the Constitution, and applying to the Constitution those general rules which govern courts of justice in their construction of statutes. By construing a statute liberally, an inference is often drawn from it, not only beyond what its words import, but beyond the contemplation of those by whom it was enacted. By construing a statute strictly, although its intention be expressed with a clearness not to be mistaken, yet being capable by verbal criticism, of receiving another, and, perhaps, a more literal meaning, the sense is sacrificed to the rule, and the object of the law is defeated. The mere statement of the effects produced by these rules of construction, will satisfy us, that neither of them ought to be our guide. The structure of our Constitution is novel and complicated: the difference between it and the ancient and modern political leagues and confederacies, is so great in many essential respects, that we can derive little from their histories to aid us, either by way of example or illustration. In returning to a state of peace from a long and exhausting war, our citizens were exposed to sufferings and privations, scarcely inferior to those which they had endured during the revolutionary struggle. Individuals were oppressed with debt-property had depreciated-metallic money had disappeared-no sound circulating medium supplied its place-commerce and agriculture were languishing—rival interests and jealousies distracted the States-the natural resources of the country were undeveloped. The Government was feeble: it could enact no general commercial regulations from the want of power-could make no provision for its necessary expenditures or the payment of the public debt, from an inability to obtain revenue-could command no respect abroad,

from the prevalence of conflicting counsels at home. In the midst of these embarrassments, the Convention was held at Philadelphia, which framed the present Constitution, and the powers which it contains were given to remedy the evils existing, when it was formed. Being established for certain purposes by the people of the several States who then had, and who still have State Legislatures, those purposes were expressed, and the powers necessary to accomplish them were specially enumerated. These powers are, generally, to be exercised on external objects, as war, diplomatic intercourse, and foreign commerce. What concerns the lives, liberties, and property of the people, and their internal order, improvement and economy, are included within the province of the Legislatures of the States. This distinction marks the prominent boundaries between Federal and State jurisdiction, although, in some instances, it has been departed from, where it was judged expedient that some powers, more properly of a municipal description, should be exclusively vested in the Federal Govern.ment, or concurrently in it and the States. To effect the objects of the Constitution, the powers which it gives, are specified to carry them into execution, sometimes the means are expressed, but as this has frequently been omitted, in a separate paragraph, the Legislature is authorized "to make all laws which shall be necessary and proper," for that purpose. Such being the character of the Constitution, we know but one sound practical rule for its construction-the intention of its framers, to be collected from the nature of the instrument, and the words used to convey its meaning, according to their ordinary acceptation. As it was designed, that only certain powers should be conferred upon the General Government, they ought to be strictly construed-not in the sense of that term which we have adverted to and censured-not with the subtleties of verbal criticism and scholastic refinement-but as they would be understood by an individual of good sense and integrity, so that no addition should be made to the quantity or kind of power given, or because a great power had been granted, therefore, to annex to it another, inferior in degree. All the powers intended to be granted, having been agreed upon, they could, therefore, be enumerated; the means by which they were to be executed, could not be enumerated, because they could not be previously ascertained: they must depend upon the internal situation and resources of the country-upon the relations in which foreign nations stand towards it, and towards each other, and upon an infinity of contingencies not to be anticipated by human sagacity, VOL. II.-NO. 4. 71