Mr. WEEMS coincided in part with the views expressed by Mr. WICKLIFFE, but moved to amend the resolution in such a manner as to require a viva voce vote only when demanded by one-fifth of the members present, in conformity with the rule at present in force in relation to the yeas and nays.

Mr. WICKLIFFE objected to the amendment, and declined accepting as a modification.

[H. OF R.

the Indian Committee, on the subject of the Georgia claims.

Mr. WILDE concluded his remarks in favor of the motion.

[The remarks of Mr. W. on the 9th, and on this day, are herewith given in a connected form.]

Here Mr. M. adverted to an amendment he had himself offered a few days ago, proposing to apply the previous question to amendments pending, the propriety of which he briefly insisted upon. The consumption of time, even in the present mode of electing by ballot, arose principally Mr. WILDE observed that, in rising to redeem his from the practice of counting the ballots in the House. pledge, it would be impossible to avoid entering somewhat This might easily be avoided by allowing the tellers to re-into detail. These claims had never been acted upon by tire, and the business of the House to proceed in the mean the House. The facts respecting them were, as yet, imtime. If the standing rules of the House were to be alter- perfectly understood. The questions they presented had ed on every slight occasion, and for any temporary object not been examined. The arguments in their favor were which gentlemen might have in view, there was no end to still unheard. It was not his wish, however, to say more the changes which might be expected. than the occasion absolutely required. He should be satisfied if he could procure a patient inquiry into the merits of the claims; beyond that, he had nothing to hope or ask. When the rights of the claimants were understood, the measure of justice to which they were entitled would be readily settled, by every gentleman, according to his own judgment. In 1821, one of those compacts or agreements which have been familiarly, but not properly, called treaties, was entered into between the United States, the Creek tribe of Indians, and the State of Georgia. A cession of land from the Indians was then obtained by the United States, for the use of the State, the consideration of which was to be paid by the United States, in conformity with the obligations imposed by the articles of agreement and cession of 1802. At the time of those negotiations, there were existing claims of the citizens of the State of Georgia against the Creek nation, for depredations committed, prior to the act regulating intereourse with the Indian tribes. These claims formed one of the subjects of the negotiations; and for the purpose of procuring payment of them, commissioners on the part of Georgia had been appointed. Registered from time to time as they arose, in the proper department, according to law, with the proof by which they were established, an abstract of them, from the books of the Comptroller's office, was in the hands of the commissioners, and exhibited at the conferences. They amounted to two hundred and eighty thousand dollars, and were principally for property plundered or destroyed, by Indians of the Creek tribe, in some of those predatory incursions with which our Southern frontier was so often harassed. Reparation for these injuries had been often stipulated, but never made.

Mr. CULPEPER expressed himself in opposition to the resolution. The first reason which the mover had given in its support, operated, in his own case, in a manner directly the reverse: for he had been accustomed, from the outset of his public life, always to election by ballot, and never viva voce. In the State of Georgia, where he had at first resided, the very experiment had been made which the gentleman from Kentucky wished the House now to try. The mode of election for Representatives had been changed as was now proposed, and the effect was such, that, after the single viva voce election, the Legislature was besieged by petitions from all parts of the State to restore the former practice. The act was accordingly repealed. In North Carolina, which State he had now the honor in part to represent, election by ballot had always prevailed. For himself, he believed he might truly say, he had never, at any time, put a vote into the ballot box, which he had the least wish to conceal. He had been a member of the House, with but few interruptions, for twenty-two years; during which he had never voted, either by ballot or otherwise, in a manner which he would not have exposed to all the world. The mode now proposed would prove exceedingly inconvenient and tedious in practice, and seeing no good reason in its favor, he should give it his decided negative.

Mr. MALLARY said he was utterly opposed both to the amendment and resolution. The officers of this House had ever been appointed by ballot from the foundation of the Government. It was the old Jeffersonian practice. Had any thing occurred lately to render a change desirable? Had the honorable gentleman any new or special reasons to suspect that the members would act dishonorably if entrusted to conceal their votes by the ballot box? For himself he knew of none. If the gentleman had discovered any, he should like to be informed of it. He had presumed the gentlemen of the present Congress were as honest and as honorable as their predecessors. Their fathers had voted by ballot, and he knew of no reason why the practice should now be changed. Perhaps the honorable gentleman might have within his knowledge some secret reason for supposing that this Congress ought not to be trusted by the nation to the same extent which other Congresses had been. If such were the case, he should like to know it.

[Here further debate was suspended by the expiration of the hour allotted for the consideration of resolutions.]

GEORGIA CLAIMS.

The House then went into Committee of the Whole on the state of the Union, and resumed the consideration of the motion of Mr. THOMPSON, to reverse the report of VOL. V.-28

Repeated acts of hostility, attended with all the horrors of savage warfare, had been succeeded by repeated promises of peace and indemnity, which, in tnrn, were as repeatedly violated, with all the recklessness of savage perfidy. These outrages could not be denied. The obligation to repair them had been often solemnly admitted. The breach of that obligation was notorious. Under these circumstances the compact of 1821 was made. By the 4th article, the payment, by the United States, to the Indians, of various sums, at different times, amounting in the whole to two hundred thousand dollars, is stipulated, and the article then proceeds:

"And as a further consideration for said cession, the United States do hereby agree to pay, to the State of Georgia, whatever balance may be found due by the Creek nation to the citizens of said State, whenever the same shall be ascertained, in conformity with the reference made by the commissioners of Georgia and the chiefs, head men, and warriors of the Creek nation, to be paid in five annual instalments, without interest, provided the same shall not exceed the sum of two hundred and fifty thousand dollars; the commissioners of Georgia executing to the Creek nation a full and final relinquishment of all the claims of the citizens of Georgia against the Creek nation, for property taken or destroyed, prior to the act of Congress of one thousand eight hundred and two, regulating the intercourse with the Indian tribes."

By the articles of agreement, made at the same time, be

tween the commissioners of Georgia, and the chiefs, head men, and warriors, of the Creek nation, all claims on either side, of whatever nature or kind, prior to the act of Congress of one thousand eight hundred and two, with the documents in support of them, were referred to the decision of the President of the United States, by him to be decided upon, adjusted, liquidated, and settled, in such manner, and under such rules, regulations, and restrictions, as he should prescribe. A full and final release of all claims, of every description, was accordingly executed by the Georgia commissioners, to the Creek nation; it purported to be in consideration of the two hundred and fifty thousand dollars agreed to be paid by the United States, and was witnessed by their commissioners. For the settlement of these claims, thus referred to the President, a commissioner was appointed, who proceeded to discharge his duty, under certain instructions, emanating from the War Department. Claims amounting to one hundred and eighty-two thousand three hundred and nine dollars were presented to him, of which eighty thousand eight hundred and forty-four dollars were allowed, and ninety thousand five hundred and thirty-eight rejected; subsequently a further reference to the Fifth Auditor was authorized, and some other sums were admitted. The whole amount allowed and paid a little exceeds one hundred and one thousand dollars, leaving upwards of one hundred and fortyeight thousand dollars of the two hundred and fifty thousand dollars, still in the hands of the United States, and applicable, as Georgia contends, to the payment of the just claims of her citizens. It is worthy of remark that, of the rejected claims, a very inconsiderable amount indeed were condemned as fraudulent, or refused payment for insufficiency of proof. By far the greater number were denied indemnity because they were for property destroyed, and, according to the decision of the commissioner, in conformity with his instructions from the Department of War, they are alleged not to be provided for by the treaty.

[JAN. 16, 1829.

plunder or destroy private property on land. Savages never respect it. To exempt them, on the return of peace, for all responsibility for such outrages, is to encourage them in their barbarity.

Shall a citizen of Georgia, whose fields have been ravaged, his property plundered, his wife and children butchered, or driven to seek refuge in a savage wilderness, from the pursuit of men still more savage-shall such a man be told, when he comes to ask indemnity for his losses and sufferings-will any member of this committee tell him, "the usage of civilized nations in the construction of treaties, excludes your claim?" Has any man the heart to utter so cruel and bitter a mockery? But, if the application of this principle be correct, why was it not followed out? Why were the claims of 1785 and 1786 allowed in part, if the treaties of 1790 and 1796, by merely omitting to provide for, had, in fact, extinguished them? Nay, why was a single claim allowed, when, upon the principle asserted, the capitulation of 1814 forever extinguished all prior injuries, indemnity for which was not provided by its terms? Upon this construction, however, such as it is, claims to the amount of ninety or one hundred thousand dollars have been rejected The commissioner, in rejecting them, exercised no discretion. He acted ministerially, and merely obeyed his orders. The Legislature of the State of Georgia remonstrated with the late President of the United States, but without effect; and, at the last session, the injustice done the claimants was brought by his colleague [Mr. THOMPSON] to the notice of Congress. The report of a bare majority of the Committee on Indian Affairs sustained the decision of the commissioner, in part; and, as to the residue, professed to consider it entirely within the power of the President to cause justice to be done. They regarded the owner of property destroyed, equally entitled to indemnity with the owner of property taken; but added, that they were not apprised of any such claims having been in fact rejected; and if they were, the President was fully authorized This construction seemed to him an extraordinary one. to give redress. It was but justice to the Committee to It was not his purpose to reflect on the commissioner, or add, that the document containing the report of the comthe Department; but, in justice to himself and his consti- missioner was not then before them. It was subsequently tuents, he must be permitted to make, and to defend, that called for by the House, in consequence of a resolution assertion. First, it is to be observed that the reference to submitted by himself. At the last session, the report was the President is of all claims on both sides. The submis- not reached in its order on the calendar. With a view of sion is general, not restricted. Next, the release is un- testing the correctness of the Committee's opinion, and of limited; and in that respect it conforms to the compact procuring the adjustment of these claims, during the reThat instrument requires the commissioners of Georgia to cess, if it was correct, he, in concert with his colleagues, execute a release for all property taken or destroyed. addressed a note to the President, asking his interposition. Can it be imagined that the renunciation and the obliga- The President considered the question, and, after consulttion to indemnify were not intended to be co-extensive? ing the law officer of the Government, was of opinion that Why ask us to release all claims for property destroyed, if he could not interfere, or, at least, as the subject was besuch claims had already been extinguished? What is the fore Congress, and an appropriation would, at all events, principle upon which these claims for property destroyed be necessary, it was most proper not to do so. This, Mr. have been disallowed? In his fourth instruction, the Se- W. believed, was the substance of the answer he received, cretary of War directs the commissioner to exclude all for it was a verbal one, and he would not undertake to reclaims originating during a period of hostilities, which port it exactly. Indeed, the communications on the subwas followed by a treaty of peace, unless they are provid-ject had so little of a formal character, that he did not feel ed for by that treaty. This, he says, is a principle perfect- himself entirely at liberty to speak of the reply received, ly well established between civilized nations, and is be- until he had obtained the Chief Magistrate's permission to lieved to be equally applicable to savages. Now, why do so. What resource is now left to the claimants? The should the maxims of international law, established among Committee have expressed a favourable opinion of the civilized people, be extended to Indians, to whom they are claims for property destroyed, but refer them to the Presiunknown, and by whom they would never be regarded? dent. The President does not consider the claims less They are not an independent people. In the progress of favorable than the Committee, but intimates that he cannot the negotiations of Ghent, our Government have express- act upon them. The claimants then come back to Conly declared they are not to be deemed so. gress, on whose wisdom and justice is their only reliance. sion has again been repelled by the President in his late The reference to the President was in his official, not in message. The agreements entered into with them are his personal character, and while the office remains, it is not treaties. The Senate have so decided. Even if they never too late to do justice or correct error. Open the were independent, they are uncivilized. They do not commission, then; place the fund again under the control abide by the rules of civilized warfare. Why, then, of the President; subject these claims to the most rigoshould we apply to them the rules of civilized pacifica- rous examination you choose, as to their fairness; but allow tion? Nations claiming to be civilized, do not usually such as are within the provisions of the compact.

That preten

[JAN. 16, 1828

stored. What is a just indemnity in such a case? Let us rest against a nation of Indians, or the payment of interest inquire of the constitutional adviser of the President, whose by them is without a precedent." Again, he affirms that opinion the Government adopted. What," says the At- "interest is not a thing of course; it is, in no case, a part torney General, " is a just indemnification for a wrong? Is of the debt, nor is it a necessary consequence of the debt. it the reparation of one-half or two-thirds of that wrong?" By the polity of many nations, it is forbidden in all cases." On these few simple ideas the whole question turns. If Finally, he declares the United States, in assuming the an injury is justly redressed which is only half redressed, responsibility of the Indians under these treaties, underthen the British commissioner is right; but if an injury is take to do only what the Indians ought to have done-that redressed only when the redress is commensurate with the is, to restore the specific property within the reach of the whole extent of the injury, then he is wrong. Let us put Creek nation, at the date of each treaty, but this being aside the emphatic and striking word just, and take the impracticable, the only thing that remains to be done, word indemnification alone. What does the word indem- and which is practicable, is to pay in commutation, the nification mean? The saving harmless from damage. Is value of the article, at the time at which it should have that man saved harmless from damage who is left to bear been delivered. All beyond this would be damages for one half of the damage himself? The question, seems, to the detention, with respect to which, the treaties contain me, too plain for discussion. The British commissioner, no stipulation." Sir John Nicoll, who composed part of the Board, under the seventh article of the treaty of 1794, seems to have entertained a very different opinion upon the subject from his countryman who is now sitting to execute the Emperor's award. His words are, "To reimburse the claimants the original cost of their property, and all the expenses they have actually incurred, together with interest on the whold amount, would, I think, be a just and adequate compensation. This, I believe, is the measure of compensation usually made by all belligerent nations for losses, costs, and damages, occasioned by illegal captures." Now, at the time of the wrongs now under consideration, we were, as to Gre at Britain, neutrals and friends, and stood protected, by the most sacred of all instruments, a treaty of peace. In violation of this treaty, the slaves and other property of the American citizens were carried away, in the year 1815, and have been detained from them ever since. They have thus lost the use of this property for eleven years. Is the meagre return of the average value, at the time the slaves and other property were thus taken from them, a just indemnification for the whole wrong? That the act of taking away the property was a wrong, is no longer a question. The first act of dispossession being thus established to be a wrong, is the continuance of that dispossession for eleven years no wrong at all. Is it consistent with that usage of nations, which Sir John Nicoll recognized, to redress an act of wrongful violence by the return, at any distance of time, of the naked value of the article at the date of the injury.

Upon the whole, sir, I am of the opinion that the just indemnification awarded by the Emperor involves not merely the return of the value of specific property, but a compensation, also, for the subsequent and wrongful detention of it, in the nature of damages. If the actual damages in each case, could be acertained, they ought under the award, to be decreed; but, since this, if not impracticable, would be a work of great labor and time, I am of the opinion that the interest, according to the usage of nations, is a necessary part of the just indemnification awarded by the Emperor of Russia.

But it is objected that this is, in substance, a claim for interest on damages, and the question of interest has been considered by the Government, with reference to this compact, and rejected, under the opinion of the Attorney General. Let us examine that opinion. What are the reasons he assigns why interest should not be allowed? "The first consideration [he says] which strikes the mind on this subject, is, that this is a question which arises between sovereign and independent States, in transactions between whom the allowance of interest, unless where it is expressly stipulated, or arises on contracts of loan, is, it is believed, without example." Did the Attorney General intend seriously to assert that a tribe of savages was a sovereign and independent State? And how had the language of Sir John Nicoll, in 1794, escaped his recollection? He next asserts that the United States are responsible only as the Indians were responsible; and "it is believed a claim of inte

Mr. W. said he did not propose to offer any feeble argument of his against the weight of so imposing an authority. The most decorous mode of combating the decision of a court, was to oppose to it the decision of another court, or of the same court. What would not be offensive to the most august judicial tribunal in our country, cannot be disrespectful to any officer of the Government. He hoped he might be permitted, then, in no illiberal or unkind spirit to any one, but with a firm determination to procure justice for these claimants, if any exertion of his could procure it, to contrast some passages of this opinion with other passages of a different opinion, given by the same officer upon another occasion. In the one, interest between sovereign States, unless expressly stipulated, or arising on loans, is believed to be without example. In the other, interest according to the usage of nations, is a necessary part of the just indemnification awarded by the Emperor of Russia. In the one, the value of the article at the time when it should be delivered, is the commutation which is just upon this non-delivery. In the other," the meagre return of the average value of the property taken," is denied to be a just indemnification for the whole wrong. the one, damages for detention are held inadmissible by the usuage of nations. In the other, such damages, are, by the same usuage, declared just and customary. He would not pursue the comparison further. He made those remarks with pain. He should not have made them at all, but that he was pressed by the weight of the Attorney General's opinion, both in the report of the Committee, and in the minds of the individual members. For the gentleman who gave that opinion, he entertained only the best feelings. He had not forgotten an early admiration for his genius. He did not desire to forget that their only intercourse, slight as it was, had been one of kindness and courtesy. Least of all could he avoid remembering the deference he owed to superior acquirements and long established reputation.

In

With respect to the stipulation of the treaty, that the instalments are to be paid without interest, it must, he thought, be apparent, on a moment's reflection, that this provision was merely intended to guard the United States against the payment, in any event, of more than that sum. It had no relation to the interdiction of interest or damages on individual claims, if, indeed, the fund were adequate to their allowance. But the Attorney General founded his opinion, in part, upon the peculiar character of one of the contracting parties. The Indians are savages, and savages pay no interest. "A claim of interest against a nation of Indians, or the payment of interest by them, is believed to be without precedent"-p. 18. Is it not obvious, however, that the claim is for indemnity, and that interest, if to be allowed, is adopted only as a convenient measure of a part of that indemnity? Not damages for a naked wrong; but reparation for an injury which was proportionable to the wrong done.

One cannot help being struck with the diversity of doctrine between the Secretary of War and the Attorney

General. The former, in relation to the effect of a treaty of peace as merging all claims for prior injuries, declares it is a principle perfectly well established among civilized people, and it is believed to be equally applicable to Indian tribes. When there is a question about the payment of interest, then they are savages; when an implied renunciation is to be established, they are civilized. They are savages, says the Attorney General. They are civilized, says the Secretary of War. But, whether savage or civilized, it seems they are to pay the Georgians nothing. He did not intend to cavil or even to comment ill-naturedly upon these opposite views of the degree of refinement to be attributed to our copper colored brethren. Such things were, to some extent, matters of taste. A titled traveller, from a petty German principality-it would have been obscure, but for Schiller and Goethe-had told us that the Georgians themselves were admitted, on all hands, to be barbarians; and, indeed, from the treatment they have received, one would think there must be others who believed them so.

[H. OF R.

plain or to suport them, was apt to find himself, as he did at that moment-vox clamente in deserto. Nay, worse, [said Mr. W ] for here was the solitude, but not the silence of the wilderness.

A question had been raised as to the residue of the fund of two hundred and fifty thousand dollars-to whom it belonged. That question he would not examine. He considered it purely speculative at present: for, even though the Indians might have a better right to it than the United States, neither had any right at all, so long as there was one just claim, intended to be provided for by the treaty, unsatisfied. Gentlemen who conceived the Indians entitled to the balance, however, were, on their own princi-. ples, obliged to vote for the present motion: for, upon that supposition, farther legislation was expedient and necessary. Further legislation was unnecessary only upon the supposition that all just claims had been paid, or that the President's decision, whether just or otherwise, could not, or ought not to be inquired into; and, in either event, the money being already in the Treasury, no act of legislation was necessary to keep it there.

In relation to the practice of the Government in paying for property destroyed by the Indians, he would only ask to cite two instances: By the Intercourse Act of 1796, the United States guaranty an eventual indemnity for property taken or destroyed. The honorable Chairman of the Committee himself admits that property destroyed between 1796 and 1802 ought to be paid for. To that admission, he [Mr. W.] would subjoin, if it was just, after 1796, it was just, before 1796. The other instance was afforded by the act of 3d March, 1817, by which we appropriated eighty-five thousand dollars to pay the friendly Creeks for property which the hostile portion of the tribe had destroyed. Shall we refuse to our own citizens what we have allowed to our savage allies?

He could not conclude, without calling the attention of the Committee to a class of claims admitted by the Government to be just, and yet denied payment. He alluded to the claims provided for by the treaty of Fort Wilkinson. By the second article of that treaty, five thousand dollars are provided for the payment of claims arising since the treaty of Colerain. By his fifth instruction, the Secretary of War directs all such claims to be excluded from participation in the fund of two hundred and fifty thousand dollars. He says there can be no hardship in this: for, if there are any such unpaid, the provision of that treaty is still in force, and the sum provided for the payment, which is still unexhausted, will prevent any injury from resulting to individuals who may hold such claims. This

As for the Indians, however, it was surely not too much to ask that they should be regarded in the one light as in the other, and not in either as interest might dictate A decent respect for official consistency would seem to require that the different members of the administration who concurred in this decision should agree among themselves. No one, it is believed, will maintain that the Indians are to be exempted from the payment of interest because they are savage, and released, by legal implication, from other liabilities, because they are civilized. Such a rule would belong neither to the simplicity of the one state, nor the integrity of the other. It would be a mixture of Punic faith and Grecian subtlety. They were bound to restore certain property, which they have not restored. Had they complied with their compact, the owner would have enjoyed the use of his property and its increase, which, as it was, the plunderer enjoyed. An allowance for these items would be just between man and man. It is right between people and people, red or white, civilized or barbarous; and in their stead, interest should be given; because it is a convenient and general rule' for computing these allowances, which it might be difficult to calculate and settle in each individual case. But this whole subject was referred to the decision of the President, and he has decided. And does it become the United States to be satisfied with this decision, if the citizens of Georgia are dissatisfied with it? It is the decision of the Chief Magistrate of the Union, enuring to the benefit of the Union at the expense of Georgia. Is not that a sufficient motive to examine it? The argument of the con-construction, he adds, will, in fact, operate to the benefit clusiveness of the President's opinion goes to the extent of precluding all inquiry by this House. But will any gentleman press it so far? Will you deny the right of petition? Will you say that the respectful memorial of a State, who has never spared her blood or treasure in the common cause, shall be dismissed with the abrupt and uncourteous answer, "the President has decided, and, right or wrong, you must abide by his decision?" To the humblest citizen who approaches us with respect, and sometimes even without it, our doors are thrown open. His petition is received, his case is heard. His grievances, real or pretended, are inquired into. Will you listen to these claimants less patiently, because of their numbers, or because the hardship of their case has enlisted the sympathy of the State of which they are citizens?

of the citizens of Georgia, who may have claims against the Creek nation, as it enlarges the fund out of which they are to be paid, by adding what may remain of the five thousand dollars stipulated for that purpose, by the treaty of Fort Wilkinson, to the two hundred and fifty thousand dollars stipulated in the late treaty for the same purpose. Now, sir, [said Mr. W.] what is the fact? The report of the commissioner shows conclusively, that claims, amounting to six thousand two hundred and one dollars, to the fairness and justice of which no objection is taken, have been refused payment under the fifth instruction, simply and solely because they were included in the treaty of Fort Wilkinson. The appropriation for the execution of that treaty has long since expired. He had endeavored, but in vain, to obtain an account of the payments made under it. He begged the patience of the Committee: he would Independent of the absurdity of referring the claimants to not trespass on it much longer. He was sensible how the residue of a fund of five thousand dollars, for the paydaring, how almost desperate it was to attempt gaining the ment of claims amounting to more than six, here was the attention of that House in opposition to the report of a stand- case of men, to whose relief two funds were applicable, ing Committee upon a private claim. He had said such cases who had yet been, and were still, unable, without any fault were heard. He asked leave to correct that expression. of theirs, to obtain payment out of either. He referred They might be spoken of, indeed, but he believed they to the case of the heirs of R. Wilkinson as one, and the were very seldom heard. Whoever endeavored to ex-largest one, of that description. The commissioner says,