JAN. 16, 1829.]

Georgia, Claims.

H. OF R.

traced to have been in the British Crown anterior to the Revolution. No question can arise upon the assumption, or rather the assertion, of the fact, that, upon the acknowledgment of the independence of the States by the British Government, all the power passed from the Crown to the States, respectively, prior to the Confederation. Then, this power belonged to the different States. It is our purpose now to examine what has been done by the act of the Confederation. It is not amiss here to refer somewhat minutely to the history of the times that led to the association of several independent Governments. Many of our day know, of their own knowledge, and all of us know from the traditions of our fathers, or the records of the day, that a portion of the subjects of the British Crown, inhabiting colonies under the royal patent, were driven to demand those rights which belonged to British subjects, but were withheld by tyranny and abuse of powDemands were unheeded, until they were sustained by force. The bloody contest ensued, which resulted in American independence; and, as each colony had been aggrieved, each colony made resistance, and made common cause. In this alliance, of course, losses had been sustain

er.

ing from Divine wisdom and goodness, that gave this globe to man, that the earth should, by his powers and intelligence, be replenished and subdued. Nor is it necessary to create and discuss abstract questions, now easy of solution, but which, in times only a few centuries past, afforded difficulties insurmountable to the most learned and able statesman, as well as the most intelligent and pious philanthropist. Whether our forefathers, by the law of man or God, could claim the soil of the American continent, or not, is not now material to our purpose. It is enough for us that they did so claim it; and that, whatever rights were admitted to the natives, were the result of policy or clemency. Nor shall I inquire how far the true Christian faith, and the refined philosophy of our day, will cause us to execrate the deeds of those who braved the ocean's tempest, endured the privations, nay, the famine, of an uncultivated wilderness, and resisted with success the unbridled fury of a savage people, to lay the foundation of an empire now among the first on the earth; to its people extending greater blessings than any other; and contributing so large a portion to the stock of intelligence and to the store of human comfort, through the whole world, as the present Government of the United States does. The reflection, how-ed in common, and obligations in common had also been ever, cannot be restrained, that, if these things have been in violation of the rights of one portion of the human species by another, and that, too, without the sanction of Divine law, where were the never-sleeping powers of an allrighteous and controlling Power, that the frail barks that first bore civilization to this shore were not overwhelmed in the vasty deep! If the days of revealing the Divine will to man had not long since gone by, I would not deem it impious to say, that, through the whole progress, from the chimeras, then called, of Columbus, through the whole train of appalling events of discovery voyages, and planting first settlements, down to the final overthrow of British rule in this Confederacy, the will and decree of unerring Providence is too palpably indicated to admit of doubt. As these conclusions come from sober reflection, in aid of those deduced from the governmental decrees of the day, it may not be amiss to inquire what code of moral or religious law is at variance with them. My research enables me to find nothing adverse to my purpose, from which I must be pardoned for having in some degree digressed. To return: my object is to ascertain in what tribunal was vested the power to purchase lands, or make compacts with the Indians, prior to the independence of these States. And I think it is shown that a power, originally vested in every subject of the British Crown, passed from the subject to the Crown itself; and the administering of that power was confided to the Governors or superintendents of the different colonies. It is not necessary here to recur to the vari-guide-the whole civilized world opposing many instances ous instances and modes of the exercise of this power. The history of the time is replete with examples well nigh to the acquisition of every separate colony; and, although the practice attendant on the treaty-making of the present day receives now such general condemnation from some quarters, yet impartial examinination enables us to discover quite clearly that the ceremony and circumstances attend-all future generations. ing the land purchasing of our pious fathers, by the pil- In the examination of the instrument which is called grims, and by Penn himself, are not only now imitated, the Articies of Confederation, we find that, among other but the very practices used, and the very considerations things, it is resolved, that [Art. 6.] "No State, without given, to induce compliance on the Indians' part, are still the consent of the United States in Congress assembled, most substantially and minutely resorted to, in no material shall send any embassy to, or receive any embassy from, degree varying in consequence of the change of the con- or enter into any conference, agreement, alliance, or treadition of the two people. We were then weak, and they ty, with any King, Prince, or State; nor shall any person, were strong; policy was the basis of our fathers' system: we holding any office of profit or trust under the United are now strong, and they are weak, and what was former-States, or any one of them, accept of any present, emoluly done from policy, we now do from humanity, or even from charity. The question here inevitably presents itself, Where is now the power vested? That we have already

created. After the commencement of exercising independent governments, difficulties innumerable and great were presented in devising means of recovering from the losses, and of discharging the obligations, sustained and created in their time of need. A recurrence to that principle which presents itself in the earliest dawning of human intellect here presented itself. Association had been found necessary to success in war: association was considered the only means of sustaining present peace, and securing future independence; therefore the Confederacy was formed; and it must be kept in mind, that, as resistance to a common enemy had first called the principles of confederacy into ac tion, so, to resist common evils, were these principles again to be resorted to: for, let it be remembered, that, for the purposes of internal government, the State Governments were found fully adequate for their intercourse with each other; and, for the regulation of external or foreign con cerns, was the Confederacy resorted to. In the performance of this stupendous work were developed the vast powers of the minds of those sages who gave birth to the instrument which was the basis on which rested the principles of our compact. It was not the task of men, forming a society for mutual protection and mutual defence; it was the act of Governments, of nations, forming a society for mutual advantage; and the difficult task of tracing the line which was to distinguish the rights of each from the rights of the whole, was entered upon without a precedent to

adverse, and the nation that we had resisted, powerful in means, and deep in intrigue, using all schemes to defeat it. Thus entered our fathers upon this work, with giant minds and patriot souls; under the guardianship of heaven, the work was done-an ark of future safety to ourselves, a stumbling-block to our enemies, and the admiration of

ment, office, or title, of any kind whatever, from any King, Prince, or foreign State; nor shall the United States in Congress assembled, or any one of them, grant any title of nobility."

Under the preceding, what is to be deduced? It is commonly said, that this first took from the States the power

H. OF R.]

could not be any interference on the part of the Confederacy, without the direction and assent of at least nine of the States; the time taken in the procurement of such assent might have been attended with important consequences To my mind, therefore, it appears quite clear, that, at the same time that unlimited control was giveu over Indians out of the States, there should be a limited control over Indians within the States; preserving, however, the full and ample legislative jurisdiction and power within the limits of each and any State. It is, therefore, evident that, so far, we have not traced the investment of this power in Congress: but, if our former position was correct, that the whole power of the British crown passed to the States, respectively, we contend, that, as I have shown you, this power of purchasing lands and reguit passed from thence into each of the States; and, inasmuch as all power which belongs to the National Government springs from grants and concessions made by these States, and as it cannot be shown that, by the articles of confederation, this power was not granted or conceded, but, on the contrary, expressly retained to each State of which Indians were members, I must maintain the ground that, prior, and subsequent to, the Confederation, the power of regulating Indian affairs, and purchasing Indian lands, belonged, exclusively, to the State within whose limits Indians were.

and right of holding treaties, and vested it solely in Congress. This is granted; but it is contended, at the same time, that that clause has no reference to Kings," "Princes," or "States," within the States of the Confed. eracy, but to "Kings," "Princes," and "States," foreign from our territorial limits, and not within the control and operation of our laws. The term treaty is well known to all civilized nations, and carries with it ideas well understood: it is the highest grade of exercising power that belongs to independent sovereign Governments. A mere compact between a Government and any of its own subjects is not a treaty: it must be a compact entered into by sovereign Powers, competent to act, free from, and independent of, the control of each other.* If I am correct in this position, and that I am (if it were possible to doubt even) I could adduce conclusive authority, there is no far-lating Indian concerns, belonged to the Crown, and that ther need to investigate this delegation of power, this declaration of right; and as it never has been contended that our Federal Government possessed any innate rights, or any powers derived a jure divino, but, on the contrary, ever admitted, and most correctly too, that all the powers and rights of the National Government were granted or conceded to it from other Governments, and from the people themselves, to some other concession or grant of power we must look, then, to sustain the position that this power of treaty-mking with Indian tribes belongs to the General Government. In continuing our examination of the same instrument (the articles of the old Confederacy), we find, in article 9, the following additional delegation of powers to Congress: "The United States in Congress assembled shall have the sole and exclusive power and right of regulating the alloy and value of coin struck by their own authority, or by that of the respective States; fixing the standard of weights and measures, throughout the United States; regulating the trade, and managing all affairs, with 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; establishing and regulating Post Offices," &c. Need I comment on the principles developed in this clause of the charter of the National Government? Upon the subject under discussion, there is no room for doubt-there is no room for quibbling even: the full and ample power of regulating the trade with the Indians, and managing all their affairs, is most undoubtedly given but the trade and affairs of what Indians? No room to cavil here is left: they are Indians not members of any of the States. And lest some doubt should here arise, the explanatory proviso is added, "that the legislative right of any State, within its own limits, be not infringed or violated." But a single moment's examination is here necessary before we proceed, I think I may call it adventure, in search of the power claimed and exercised by the National Government.

It is contended that this clause, at the same time that it grants the power of regulating the Indian affairs, expressly confines and limits the exercise of that power exclusively to Indians not within the limits of any State; or else, why contradistinguish any portion of Indians by the terms "not being members of any of the States?" It is clear to my mind, that it was not only the intention, but that that intention is most fully developed, that the power of regulating Indian trade, and managing Indian affairs, out of the jurisdictional limits of any of the States, was most fully and exclusively given to the Confederacy; but that this power should not be conferred over Indians within any State, unless sanctioned by the legislative authority of such State. If this be not the proper and strictly legal construction of the whole clause, I am at some loss to know what effect to give to the proviso. Without this proviso, no matter what might have been the circumstances of any State, within whose limits there were Indians, there

Vattel says, public treaties can only be executed by superior Powers; by Sovereigns, who contract in the name of the State.

The next step, in the investigation of this subject, I propose to take, is the examination of the different surrenders of the waste lands, by the different States, to the General Government; and to see if any power was conveyed or relinquished to the National Government, which impaired or lessened the powers retained to the States. I have before observed, that, in the common cause against the common enemy, obligations were created, which, upon the establishment of peace, it was universally conceded should be borne in common. As this led to the formation of a National Government, to regulate commerce, and to secure the collection of customs in aid of the revenue, policy dictated a surrender of property which, though claimed by a few, had been protected and defended by the whole. We see the State of Virginia, with a magnanimity only equalled by her own patriotism, making the greatest sacrifice upon this altar of her common country-her charter, the first and the greatest, embracing within its limits the whole Northwestern territory

reserving to own State troops the pledges already made in these lands, the whole beside was freely given-embracing, now, the States of Ohio, Indiana, and Illinois. North Carolina surrendered the State of Tennesse upon like condition, To prevent future embarrassment, each State that set up any claim to any of those waste lands made a relinquishment to the United States. Afterwards Georgia sold her claim, from the Chatahoochie to the Mississippi river.

I shall now proceed to the examination of some of the conditions of those grants; and the first I shall notice is that of the great State of New-York. Her cession was accepted in 1781; and, after reciting the principles and policy which induced the surrender on her part, which were wholly to promote the general interest, the following are the main conditions on her part exacted. After defining her limits, it follows: "And we do, by these presents, in the name of the People, and for and in behalf of the State of New-York, and by virtue of the power and trust committed to us by the said act and commission, cede, transfer, and forever relinquish, to and for the only use and benefit of such of the States as are, or shall become, parties to the Articles of Confederation, all the right, title, interest, jurisdiction, and claim, of the said State of NewYork, to all lands and territories to the northward and westward of the boundaries to which the said State is in manner aforesaid limited and restricted; and to be grant

H. OF R.]

Georgia Claims.

ordinance shall, in all its parts, extend to the territory contained in the present act of cession-that article only excepted which forbids slavery.

Thus, it will be observed, that, so late as the year 1802, it was deemed proper to stipulate, by actual covenant, that the Government of the United States should extinguish the whole Indian title of one of the States, at the actual cost and expense of the General Government; and the execution of this condition is secured, by making it one of the considerations of the surrender of an extensive tract of waste land. Georgia has surrendered the soil, territory, and jurisdiction, of the States of Mississippi and Alabama to the General Government. So far, then, this places this portion of country in the precise situation of the Northwestern territory, as surrendered by Virginia, with the single proviso, that one article in the ordinance for the government of that territory shall not be here enforced, viz: the article prohibiting slavery. Is there any thing to be deduced from the surrenders, on the part of the different States, which I have here thought proper, at some length, to introduce, favorable to the treaty-making policy of the General Government with our Indian tribes? On the contrary, I think it is conclusively shown, that, in every instance, except one, this whole matter is exclusively retained in the States making the surrenders. That exception is in the case of Georgia; and the extinguishment of her Indian title is guarantied. Indeed no one will contend that, if any thing is granted by the surrenders, it is not proper that the thing granted should actually be expressed in the surrender; nor can any contend that any thing is given up by the surrender that is not embraced in it. Therefore, in every instance, the whole of the terms of the surrender are applied exclusively to the country surrendered. The country, therefore, retained, either in government, soil, or jurisdiction, is in no degree affected.

[JAN. 16, 1829.

of the States. I think I have shown that neither the Articles of Confederation nor the surrendering of waste lands have divested the several States of the sole and exclusive power over the Indian tribes within their respective limits, that passed into those States, respectively, from the British Crown, by their successful struggle for independence. The next point of examination I propose, is the constitution of the United States. Through the various stages of our political existence, the powers of the confederated States have undergone various modifications, until all the power now vested in the Government of the United States is expressed and circumscribed by that instrument. Nor need we have looked elsewhere, in the investigation of this question, unless historic facts had been necessary to explain some of its provisions; and I think that the subject now before us derives that advantage. I have shown that, in the progress of our Government, certain powers, for certain specified purposes, were found necessary to be conveyed to, and centered in, one head, to wit: the means of defraying the expenses of a common cause, and of raising a revenue for the payment of a debt created in a common struggle; and, in addition to these, for controlling and regulating a national intercourse with foreign Powers, and of regulating all foreign commerce, as well as commerce between the several States. These were the points that presented difficulties; and it was to control these that one common umpire was to be created. That umpire is the General Government, and it is created by the constitution of the United States In the history of the different stages of our political existence, was it found that any thing belonging exclusively to, and confined within the limits of, any of the States, claimed a reference to this general umpire? It is thought not. But, on the other hand, it is considered evident, that any thing that did not concern the whole was not to be matter for the management of the power created by the whole. In I think I have shown that, anterior to these several other words, any thing that was purely of State concern surrenders, so far as the articles of Confederation went, was still to continue so; and a reference to the instrument the power of controlling this subject belonged exclusively itself will clearly sustain this position. The powers of to the several States. If it belonged to the States origi- Congress pertain to subjects of general concern; and so it nally members of the Confederacy, it certainly belonged, is with all other powers of the General Government. But in the same manner, to the States subsequently admitted the point now under review is embraced in the 8th section into that Confederacy. But it may be said that the States of the 1st article: in enumerating the powers of Congress, subsequently admitted were admitted upon certain condi- with others, it is said, "The Congress shall have power tions. This is admitted. But what were those condi- to regulate commerce with foreign nations, and among the tions? They are precisely those stipulated for in the several States, and with the Indian tribes." Does this terms and conditions of the surrender of the country clause grant the power of making a treaty for the extincwhich they now embrace in their limits. The leading tion of Indian title to lands within any State? Or does the and prominent conditions, then, are, that their constitu- following clause divest the States of the power of purchastions shall be democratic; that there shall be no interfer- ing Indian titles to lands within their respective limits? ence in the sale of the public lands; that certain navigable Section 10: "No State shall enter into any treaty, alliance streams shall be forever free to the citizens of all the States; or confederation, grant letters of marque and reprisal, coin, and that, besides these, to be on a perfect footing of money, emit bills of credit, make any thing but gold and equality with the other States. Some doubt the consti- silver coin a tender in payment of debts, pass any bill of tutionality of these conditions, and say that no State can be attainder, ex post facto law, or law impairing the obligaadmitted into the Union without a perfect equality in eve- tion of contracts, or grant any title of nobility." Is this inry respect. This question does not come up. It is enough tended to prevent a State regulating the concerns of her for the purpose under consideration to show, that, so far own people within her own limits? or is it intended to preas regulating Indian concerns goes, they are not of the sti- vent these things, here enumerated, from being done, with pulations: therefore, whatever rights, on this point, pertain others, foreign to herself, so far as the treaty, alliance, or to the old States, unquestionably belong to the new ones. confederation is concerned? It is conceived that the first Upon the ground that this right ceased by the State sur- clause does not grant the power to the General Governrendering the territory and jurisdiction to the General Gov-ment of making treaties with Indians; and the second does ernment, it is claimed to have passed into such new State not prevent the States from exercising any power on this as has been formed, so soon as the consent of Congress has subject heretofore belonging to them. But a few remarks been obtained for its admission into the Union. In other will bear me out in this position. Can the Congress, unwords, all the power and jurisdiction over the surrendered der her power of regulating commerce with the Indian territory belonged alone to the General Government, dur- tribes, remove thousands of Indians from one State, and ing its territorial vassalage, and, with the sole exception of plant them in another? Or can Congress, if any State the conditions of admission into the Union, are there any thought proper to interpose, take Indians from such State? exceptions or conditions in favor of the General Govern- Suppose a State should grant her Indian population the ment, if even these be such? I do, therefore, claim that, same rights and privileges that are granted to her citizens, in this respect, there is no shadow of difference in the rights and they partook of, and exercised, such rights and privi

leges, could Congress interpose, and prohibit this policy? Suppose they were made competent to civil rule, could they be deprived of this right by any act of Congress? If these questions are answered in the negative, it will at once present itself, that, if a State interpose obstacles to other than purely regulating commerce with Indian tribes, that Congress has not the power to remove them; and, on the other hand, if a State exercise a power over, and grant a privilege to, the Indians within her limits, Congress cannot prohibit it. It must follow, then, that whatever of power is here given, must be over those who are not under the immediate and paramount authority of State jurisdiction. Otherwise, to what absurd consequences would it lead! Might not the President and Senate, at any time, destroy and overrun any one of the States in which there are public lands, by removing the Indians from any other State to such lands? Might not the whole of Mississippi be granted to the Choctaws, Illinois to the Pottawatamies or Winnebagoes, and Alabama to the Muscogees or Creeks? These ideas will be said to be absurd; but these ideas are constitutional if the Indian treaty-making power be so. But, in addition to this, where is the power to prevent this same treaty-making power from removing Indian tribes, if you | please, and locating them upon the public grounds in this District? Who can prevent the same authority from filling your arsenals, your forts, and other national domains or possessions, with this greatly favored people ? But I am answered and told that the States in which there are public lands can exercise no control, because the land on which the Indian lives, when the title is extinguished, becomes a part of the public lands, and is beyond the jurisdiction of a State Government; and, to sustain this ground, I may be referred to the 4th article of the Ordinance for the Government of the Territory of the United States Northwest of the river Ohio, which says:

[H. OF R.

humbly conceived that this clause of the ordinance does not change the character of the policy originally existing in relation to Indians. But, before I proceed farther, another clause in the before recited ordinance must be noticed; some have said that it is conclusive on this question; it is the third article, and is as follows: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools, and the means of education, shall forever be encouraged; the utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars, authorized by Congress; but laws founded in justice and humanity shall, from time to time, be made, for preventing wrongs being done to them, and for preserving peace and friendship with them."

The first consideration that presents itself, in relation to the last recited article is, how far this is now a principle of the National Government, in reference to all the Indian tribes, or is it a legislative act, municipal in its character, and exclusively applicable to a region of country in which soil and jurisdiction were exclusively in the National Government? This was so for it is solely applicable to the territory that but three years before this time belonged exclusively to Virginia: for, let it be remembered that this ordinance is exclusive in its operation to the lands lately surrendered by a State, which State, anterior to this surrender, could have wholly disregarded uch ordinance, had it then been made. So far, therefore, from this weakening my positions, it certainly gives them strength, and is fully developed in the history of the day, as being the then received opinion, and thenceforth became the adopted practice of the National Government. What is this history? It has, in part, been already noticed; it pertained to the

tem of depredation and continual warfare was waged upon
the savages; and that too with the sanction of the Govern-
ment that claimed jurisdiction to the land.
This system
not only endangered but sacrificed the quiet of not merely
the people of the State, who were sanctioned in their Indian
wars, so called, but of all the contiguous States. The sur-
render being made, we find for which, among the other
considerations enumerated, " that the necessary and reason-
able expenses incurred, &c. in maintaining forts and gar-
risons within, and for the defence, or in acquiring any part,
of the territory so ceded or relinquished, shall be fully re-
imbursed by the States." This ordinance was therefore
adopted for the government of the surrendered territory,
and over the Indians therein, and is evidently the assump-
tion of a policy, as contradistinguished from the policy that
had heretofore characterized the government which had
just now ceased to exist over this same region of country.
I look, therefore, upon this as being confirmatory of what I
have heretofore contended for, to wit: that, if the General
Government wishes to enforce this policy in relation to
Indian tribes, the lands on which such tribes lived must be
excluded from the limits of any State; and this is farther

"The said territory, and the States which may be form-surrender of the waste lands. Until this surrender, a sysed therein, shall forever remain a part of this Confederacy of the United States of America, subject to the Articles of Confederation, and to such alterations therein as shall be constitutionally made, and to all acts and ordinances of the United States in Congress assembled, conformable thereto. The inhabitants and settlers in said territory shall be subject to pay a part of the Federal debts contracted, or to be contracted, and a proportional part of the expenses of Government, to be apportioned on them by Congress, according to the same common rule and manner by which apportionments thereof shall be made on the other States; and the taxes for paying their proportion shall be laid and levied by the authority and direction of the Legislatures of the district or districts, or new States, as in the original States, within the time agreed upon by the United States in Congress assembled. The Legislatures of those new States or districts shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers; no tax shall be imposed on lands the property of the United States; and in no case shall non-exemplified by this clause never having been introduced resident proprietors be taxed higher than residents. The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the Confederacy, without any tax, impost, or duty, therefor."

Has this clause, directly or indirectly, any grant of power to the Confederacy, or any prohibition to the States, in relation to the question under consideration? or is it not known that the soil may be in the General Government, and the people living thereon subject to the municipal regulations of the State in which that soil may lie? It is

into any act specifying the conditions of admission into the Union of any new State, not even the States formed of the territory over. which this ordinance was first made operative.

Thus, in relation to this question, I think I have presented the fundamental principles on which, if it exists in the General Government, it must assuredly rest. If the power to make treaties with Indians residing within the limits of any of the States is now claimed for the General Government, it must be derived from some clause or clauses of the Articles of Confederation, in the voluntary relinquishments made by the States in the conveyance of their waste lands, or in the constitution of the United States, which I have troubled your patience and consumed your