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Texntious interruptions which be experienced, did Mr. , of his heart, and as a warning that the whole world migb! Lawless say or do any thing calculated, in the slightest de- avoid him. Throughout, Luwless uttered not a word, not gree, to cause offence ! Not at all. He submitted patiently a murmur, in reply. At length, able to endure the abuse to the strictures of the court, and argued the case in the no longer, after consulting his friends, he rose, and left the most respectful language. He endeavored to entisfy the court-house. Judge that bis opinion had not been misrepresented, and Had you, Mr. Chairman, been a member of the bar that the article was veither coutemptuous nor libellous; and placed in the situation of Mr. Lawles8, 'what would have that, if eveo it were libellous, the editor was protected beep your conduct on the occasion Could you, with from summary punishment by the guaranties of the con- feelings lacerated and excited to frenzy, bave sat silevtly stitutin. Some cases were presented to the court to sus- and patiently, and heard the Judge for two or three tain these positions. All his pleas were overruled, and hours uttering every odious epithet against you, avd even the Judge was about to pronounce judgmeni. At this declaring that in China your house would be painted black, moment, Mr. Lawless, discovering that the matter was as an emblem of the blackness of your beartt likely to become serious, requested the editor to give up At the conclusion of this scene, Mr. Lawless was sent bis name as the author of the article, wishing himself to for, and sentenced to be committed to prison for twenty: meet the consequences. No sooner was ibis done, than four hours, aud suspended from the practice of his prothe Judge issued a rule ou Lawless, returuable forthwith, fession for eighteen months. He was thus, by the arbi. to show cause why an attachment should not be issued trary mandate of the Judge, not only deprived of his peragainst him for contempt; and also why he should oot be sonal liberty, but of the means of supporting bimself and suspeuded from practice.
luis family. And yet we are to be told that no malice, Tbe witnesses declare that the feelings of the Judge no evil intention, dictated this proceeding; that the only continued to rise gradually until they reached the highest motive of the Judge was to preserve the administration of priut of excitement. The rule against the printer bad justice from contempt. I have stated the facts, and shall described the article signed "A Citizen" as a false state- leave every gentleman to draw his own conclusions. ment, tendivg to bring odium ov the court, and impair the I admit that we ought not to impeach a judge simply confidence of the public in the purity of its decisions. because his conduct bas been illegal. All must agree - Not satisfied with this description, the Judge denounces that this may be the case, and yet he may not deserve the article in bis rule against Lawless as contaiving" ma-i punishment. But illegal and oppressive proceedings, aclicious” as well as false statements, and ascribes to it an companied by violence of mapper, by passion, and by the "inteut to impair the public confidence in the upright io- appearance of revenge, present a very different case, and teptions of the sail court, and to bring odium upon the give birth to very different conclusions. court; and especially with intent to impress the public I shall not at present permit myself to be drawn into mind, and particularly many litigauts in ibis court, that a particular examination of the cases cited by the Judge. they are not to expect jus ice in the causes now pending His case stands alone. No contempt whatever exists in therein ; and with intent, further to awaken hostile and the article. It is the mere opinion of a lawyer against angry feelings on the part of the said litigants against the that of a judge. From the revolution in England until said court, in contempt of the same court."
this day, no case can be cited which bears any parallel to Now, who but one bliuded by his pussions could have the present. If there be such a one op record in that given such a description of this article ? Is there any geo country, I hope it may be produced. Cleman witbin the sound of niy voice, who, upon reading Here I might, and perbaps ought to conclude my rethe commentary 4 will say it is, in any degree, applicable! marks, but it seems proper and respectful to the commitLawless came before the court condemned already. tee that I should state what I believe to be the law in Wben bis counsel attempted to prove that the article was regard to contempts of court. In England, there are two pot a contempt, they were told they would not be per- kinds of such contempts ; the one direct, the otlier conmitted to argue that question. The Judge would not hear structive. From necessity, the power to punish direct A word upou that subject. He had determined it to be a contempts in a summary mapper must exist in every contempt, and his will was the law. A citizen of the court of justice. Without such a power, they could not United States is thus brought before a judge upon a cri- proceed with their business. In its exercise, this power minal charge involving in its punishment consequences of is generally confined to cases of official misconduct in the vost serious character, and the lips of his counsel are the officers of the court, to the disobedience of parties, Bealed upon the principal poiut of his defence. Not be jurors, and witnesses, to its lawful orders and process, and jog permitted to present this view of the subject, they to misbehavior in the face of the court, tending to obargued the remaining question with great ability, and at- struct the admivistration of justice. If a witness sball terapted to satisfy the court tbat, even admitting the arti. wilfully disobey a subpæna, the court from which it is.' cle to be contemptuous, it should be tried and punished jo sued must, in the pature of things, possess the summary a different mabner. Their arguments were all in vain. power of compelling his attendance, and punishing him
Now comes the concludiug scene, which, to my view, for contempt, by attachment So, if a sheriff refuse to displays the evil intention--the improper motives of the obey ap order of court, necessity requires the exercise of Judge, in the clearest light. He was nearly blind, and a similar power. If a by-stander will violate order and * uvable to read the article himself. At bis request, it was interrupt the court whilst transacting the business of the read by the district attorney, paragraph by paragraph, country, self-preservation demands that it should possess and, at the end of each, the Judge made bis commenta- the power of summarily pupisbing such an offender. The ries. He was much excited, bis manger was very warm, Supreme Court of the United States have decided that an and he was occupied two or three hours in delivering his attempt to bribe a member of this House, although tle opinion. And what was its whole tenor ! Justead of the offer were made in a letter writien at a distance, is a direct calm, dignified, and impartial manner which becomes a contempt of its authority, and may be punished by the judge upon all occasious, and particularly wben he him. House with fine and imprisonment. self is also the party, we find him beated, acrimonious, and Constructive contempts are, in their nature, of a very severe. He often used the words “calumniator," "cou- different character, and, under a free Government, will temptuous," "slanderous," “ libellous," as applied to Mr. ever be viewed with jealousy and suspicion. The trial Lawless and his article. He even forgot himself so far as of such contempts, in a summary manner, deprives the to say that in China the house of such a calumniator accused of the protection of a grand and of a petit jury, would be painted black, as 'ap evidence of the blackness and often constitutes the injured party both the judge
H. or R.)
Impeachment of Judge Peck.
[APRIL 21, 1830.
and the avenger of bis own wrongs. The judge, when think proper to comment upon the opinion wbicb bad been the object of the contempt, becomes himself the accuser, delivered tries the offence, and punishes the offender at his own What is the question which Judge Peek has attempted arbitrary diseretion, with as beavy a fine and as long an im to raise in his defence? Although I deny that upy facts prisonment as be may think proper. Is not this a power exist in this case, out of which such a question can arise, in its nature revolting to every freeman! Judges do not yet it may be well to consider the nature of the power cease to be men when elevated to the bench. They are which he contends belongs to the judiciary. I never still but frail human creatures. Is it not then a dangerous, did expect to bear it seriously and gravely asserted, by a & tremendous power to make any man the judge in his judge of the United States, before this House, that, if s own cause of a contempt committed against himself, and libel were published against bim affecting bis judicial under excited feelings to limit bim, in the measure of the l character in relation to an opinion which be had delivered punishment, only by his own mercy and his own sense of upon the fipal decision of a cause, he could, in a sumjustice ? Arbitrary discretion thus takes the place of posi- mary manner, try and punish the offence according to bis tive law.
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 io a cause depending. When the cause is decided, ibe 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 fute to which conferred upon the judge, not to enable bim 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, be 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 byl a jury, an inflammatory (publication such a case, he possesses no peculiar privileges. He canshould 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 uncobono party, or prejudice it against the other, the court máy stitutional power exists iv 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 lic men? Why should they be made the judges of such couatry, it is the utmost limit. But whether it exists or injuries against themselves, more than the President of ibe not, if such had been the circumstances of the case now United States, tbe members of this House, or any other before the committee, I should bave been the last man in high officer of the Government? What, sir, after a judge this House to recommend an impeachment.
has committed bis final opiniou to the world, upon a great In Pennsylvania, where the courts are as much respected constitutional question question in which the riglits and as in any other State of the Union, even this power bas 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 Stale passed an act, declaring that no publication out of language, do it uoder the pepally of being fined and im. court, 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 bazard 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 knowo 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
Long before this act had passed, the exercise of this bave imprisoned many of the most distinguished patriots summary power by the courts of that State, in the case of of the country, for severe strictures on his constitutional a lis pendens, bad been made the subject of legislative decisions. investigation and impeachment. The case of Oswald oc It may be worthy 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 wbat bas transpired, in wealth vs. Passmore, which occurred in 1802, although be this case, tbat Judge Peck had forgotten that there was an bad 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 depeoding in relation to that rights which are not possessed by the subjects of the Cropu 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 wbat was liis object. I sball read & prisoning him in a summary manner for this alleged con- few of his qnestions, with the answers of the witnesses, tempt. Although no map can read that publication witbout He asked, “ Was it insisted in the argument that the liberty at once progouncing 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 Sepators 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 bave 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 objeet of tertained the most remote idea that any judge, when the these questions. However strange it may appear, it seems cause was po longer pending, and after fival judgment bad he was desirous of casting even a darker sbade upon his been reudered, would attempt
, as Judge Peck has done, conduct, that it might more nearly resemble some Eng to punish in a summary manner any citizen who might lish precedents, in which he alleges the liberty of the
MAY 18, 1830.)
Removal of the Indians.
(H. of R.
citizen, of speech, and of the press, and the right of trial I have now said all that I deem necessary. I have spoby jury, had been interposed to shield the accused, and in- ked with great paid to myself, and I fear to the committee terposed in vain. Let him speak for bimself. He says also. Indeed, I have been scarcely able to proceed at all,
* In the present instance, although the petitioner, Mr. as you must have perceived. Uuder these circumstances,
Lawless, bas attempted to give solemnity to bis com. I feel much indebted to the committee for their attention. " plaint, by representing the freedom of the press, the Mr. B. concluded by submitting the resolution which bad "right of trial by jury, and the liberty of the American been reported by the Committe on the Judiciary. “ citizen, to have been violated in bis person, in the sum
mary punishment for a contempt of court, inflicted on "him, yet your memorialist has no fear of satisfying this
(The following speech of Mr. HUNTINGTON was inadvert" honorable House, if an opportunity shall be afforded ently, in compiling, the volume, omitted at its proper
him, that these are the trite topics continually resorted place, and is inserted here.] " to, and resorted to in vain, in Great Britain, whenever
May 18, 1880. " the courts of the country bave found it necessary to pu The House baving resolved itself into a Committee of "nish summarily a contempt.”
the Whole on the State of the Union, and the bill from Heaven forbid that these topics should ever become trite the Senate, “ To provide for an exchange of lands, with in the United States ! that theyfsbould ever lose their pro- the Indians residing in any of the States or Territories, tecting energy!
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, tbat the sedition law was unconstitutional. If tbe 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 sbould 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. bave mingled in a debate whicb would then have been Yet be, 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 cnacted. But as the committee him. If you were to pass an act to-morrow, authorizing bave reported the bill, “in conformity with the suggesthe 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 repugoance 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 be himself is the party. The sedition law was judgment, are not teuable-principles wbich, if I undernioderation 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 solemo compacts, ing the witnesses against him, face to face. In the case and the plighted faith of a nation which, hitherto, bas Dow before the comniittee, Judge Peck combined in his owo been, and always, I trust, will be, jealous of its own bonor, 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. upou the proposition now before us. My owo sepse of should have been resorted to in vain. The constitution duty, and the sentiments of a great portiou of my constitudeclares that Congress sball make po 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 bimself is the party. topic which enters into the best feelings of our pature, Should the committee sanction these principles, the Judge which is connected with the honor of our common counwill indeed bave 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 triie topics. Need' 1 urge ibis argument fur- hope for that protection which the faith of the Governther ?
ment is pledged to afford. On this floor, it is scarce necessary to refer to the Eng Before I enter into the examination of what are called lish law for the purpose of showing wbat libels are consider in the report the pretensions of the lodiaps, and of the
ed contempts of court in that country. I have examined obstacles which are considered as being in the way of their • all the Euglish authorities to wbieb" had access, and I indulgence by the Government,” I solicit the attention of have not been able to find a single case in which their the committee to the language of the Executive, in bis courts have summarily punished a libel, except in causes message at the opening of the session, and to the construcactually depending. Although the language of Blackstone tion or commentary which has been put upon it, in and Lord Hardwicke is sufficiently general to embrace another place. I shall examine it with all the respect other cases, I doubt exceedingly whether one can be found wbich is due to the Chief Magistrate of this nation, and to in the books, where the doctrive was applied in practice the elevated and bodorable station which be occupies ; but after the cause had been decided,
at the same time, and holding his advisers responsible for From the very first sentence of the opinion of the Ten- it, I sball make this examivation with all the freedom of Dessee court, in the case of Derby, it appears that there a representative of the people sworn to support the constiwas a cause pending. What was the particular character tution of the United States. I noticed with much pleasure
of that contempt, is not stated in the opinion ; and thus we in the inaugural address of ibe present Executive, the fol. * are left wholly in the dark in regard to its merits. lowing expressive sentence: “It will be my sincere and
It is bardly necessary to remind the committee that I copstant desire to observe towards the Indian tribes within bave been arguing the questiou as if the publication of Mr. our limits a just and liberal policy; and to give that huLawless bad been libellous against the Judge, instead of mane and considerate attention to their rights, and their being the tame and respectful article signed “A Citizen." I wants, which are consistent with tbe babits of our Gover
H. OF R.)
Removal of the Indians.
(MAY 18, 1830.
ment, and the feelings of our people.” How far this Houses of Congress, sball 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, this discussion.
or enforce the provisions of a treaty, because he has conIn the message, Congress are informed that the Presi- stitutional objections or scruples, constitutes bimself 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 bistory of this nation, since these tribes; that, iú 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 pot 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 witbin 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 vot 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 pions are advanced in the letter of the Secretary of War to discretion has been confided to bim; I trust it never will the Cherokee delegation, dated April 18, 1829, in which be ; and if bis scruples are such as to deter bim from enthey are told, by order of the President, that the State of forcing it, let him resign the trust which bas been confided Georgia has extended over their country her legislative to him. This is the only course be can adopt under such enactments, in virtue of her authority as a sovereign, inde circunstances. 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 euch 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. bessed the power to do, apart from any autbority 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 upburt through documents, then, we find the legislation of Georgia and this ordeal of Presidential discretion. Alabama over the Indian tribes within their chartered Having thus, very briefly, adverted to the opinions enlimits, sustained, as of right, and an explicit avowal made tertained and avowed by the Executive in regard to the that the President will not interfere to prevent it. And pretensions " of the Indian tribes, on the supposition that what is the construction put upop this language ! Not their construction of the treaties made with them, and of merely that the operation of the State laws is not to be op the laws enacted to regulate the intercourse with them, is posed, because the guaranties contained in treaties with correct, I proceed to consider the great questions involved the Indians do not require it; not that, if they did require in this discussion. it, the existing laws are insufficient for that purpose, but The report denies to the Indian tribes any title wbat“ because," as stated in the report to the Senate by the ever to the lands which they occupy within the chartered Committee on Indian Affairs of that budy, " in the opi- limits of any State ; and asserts a right in the States withnion of the Executive, constitutional objections exist, in which they are located, to extend their legislative evactwhich it is not in the power of Congress to remove, by ments over them, and, consequently, a power to andibilate any law wbich they could enact.”. If this be the right in- their political existence as communities, to be governed terpretation of the views entertained by the Executive, by their own laws, usages, and customs. Nor does the the doctrine is advanced, that treaties made with all the Executive, in bis message, acknowledge any title to the forms and solemnities known to the constitution, ratified lands as subsisting in the tribes. 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 exient of the Government can make them, the supreme law of the affording, you protection and the occupancy of your soil
, laud, 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 whitb: 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 deeros 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 tbe enjoyment upou 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 bis 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 bas de- the range of power granted by the States to the General volved upon
the Presidenti 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 map- val beyond the Mississippi, where alone can be assured to per prescribed by the constitution ? Has he been consti- you protection and peace. To continue wherc 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 bis 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 peither dwelt nor made improvements, merely because they made, or which shall be made, under their authority.” If bave seen them from the mountain, or passed them in the BO, 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 op, and improved their tical purposes, is adnibilated; and the provision, that a bill lands; and seems, at least, to imply that they have no ti which bas been relurned 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
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 coni prebend 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 mapper as of every part of it is utterly at war with aby such acknow they please, and is indefinite in duration, and of wbich 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 va: of this continent was taken by the nations of Europe, di- cant, by voluntary dereliction, or by the extinction of the vided out, and held origioally, by the right of discovery as tribes. between themselves, and by the rigbts of discovery and I think, also, it can be shown that these tribes are sepaconquest, as against the aborigioal inhabitants. The pre- rate distinct coinmunities, wholly independent of the States; tensious of the Indians to be the owners of any portion of pot subject to their legislation, and possessing the right of the svil
, were wholly disregarded by the Crown of Eog- self government–the right to be governed by their own laod.”
laws, customs, and usages; aod uoder no restraint, except Here the opinion is advanced, that the Crown by disco- such as they have imposed upon themselves, in their treaties very and conquest obtained either the possession, or right with the United States. of possession, of the whole of the soil then and now occu The foundation of their title is occupancy. They have pied by Iudian tribes, and admitted do 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, bave to be governed or otherwise disposed of by the colonial possessed it, and this occupancy bas 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 tiou “ 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 fuodamental principle that the Indians had no rights, one might possess himself vf, 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, aud upon such terms, as he thought proper : and The principle was adopted (p. 8) that the Indians had no if, before such grant, cession, or transfer, the occupant permanent interest in their hunting grounds; their right to died, his property descended to his children
The right hold their reserved lavds can be supported on no other of transmitting property always resided in the owner, grouod than the grant or permission of the sovereignty or and civil institutions only prescribed the mode of carrying State in which such lands lie. This was in the Crown be that right into effect. In that period of society, when fore the revolution, and in the States after that eveut, countries were formed, aud their boundaries fixed, we find succeeding, as they did, to the sovereignty over all the that different districts were appropriated to the native lands within the limits of their respective charters. The owners, the first occupants, or, in case of vacant or dereliet Indian boundaries were cousidered temporary. The trea- lands, to the first discoverera." ties made with them were but a inude of Governmeut and What rights over the lands inhabited and possessed by & substitute for ordinary legislation, which were from time the Indian tribes, did the Government making the first tof time dispensed with. (P. 12) Territory and jurisdico discovery of them acquire ? Were they such as to annition, considered jo reference to a State or a natiou, are in bilate the previous existing title of the aborigines to them separable; the one is a necessary incident to the other; and Not at all. The discovery conferred the right of making as a State cannot exist without territory, the limits of that settlements, or forining establishments, whenever the prior territory are, at the same time, the limits of its jurisdict- right of occupancy was laviully extinguished; connected ion. The policy of Georgia (p. 13) bas always been to with the right of pre-emption, and the ultimate right in contract the lodiau reservations, gradually, within such fee, whenever the Judiau tribes should become extinct. reasonable limits, that no part of the country should remain The power to exclude other nations from occupying, or uncultivated. Her policy in this respect was a part of her making purchases of the natives, was an incident to the rights;
; any thing which tends to defeat its operation, is a discovery, and was afterwards conferred by the Indians in deprivation of right. It is understuod that neither Geor- their treaties. gia nor any other State will attempt to appropriate the It will be obvious that this view of the subject is correct, lands within the Indian reservations without their consent. by referring to the uniform course adopted by the Crown
Can it be doubted, after these quotations, that the re- of Eugland, by the colonies, by the States, after the revoport denies to the ludians the right both of sovereignty and lution, and by the States and General Government, siuce soil? It would seem not: and supposing this to be its mean that period, up to be present time; confirmed by reing, and as expressive of the opivivns of the committee, peated adjudications of the bighest judicial tribunal of this which we are called upon to adopt or reject, I proceed to nation. an examination of the bature and extent of the Indian title The first attempt to dispose of a whole continent, withto tbe lapis within their boundaries.
out reference to the rigbis of the aboriginal inhabitants, In my judgment, peither of the positions assumed by was made in 1493, the year after the discovery of America, the committee in their report is tenable. I think it ca- by Pope Alexander the Sixth, who gave it to the Crown pable of demonstration, that the right of the ludian tribes of Spaio, on the assumed principle that infidels were unto the lands which they occupy is paramount to, and ex- just possessors of the lands on wbich their Creator bad clusive of, all others, whether nations, States, or individuals; placed them. This grant was accepted, contrary to the it is a right to occupy, enjoy, possess, and use, according advice of the civilians and Crown lawyers of Spain; and to their own discretion, ivdetinitely and forever, and, for all one of the bishops, in a treatise dedicated to Charles the practical purposes, is absolute. The only restriction is Fifth, holds this strong language : “ The natives of Amethat of alienation at pleasure. This power of alienation rica having their own lawful kings and priores, and a is not, and cannot be claimed by these tribes : for the rigbt rigbt to make laws for the good government of their reof discovery, in the first instance, and the voluntary com. pective dominions, could not be expelled out of them, or pact of the tribes afterwards, gave to the Government of the deprived of what they possess, without doing violence to United States the ultimate title, cbarged with the lodian the laws of God, as well as the laws of nations." right of possession, or occupancy, and the exclusive power The English princes, though they did not acquiesce in