Independence, to the confederation of States, or to the individual States, repectively, within the limits of which each tribe was situated. On the one hand it was contended, that the right to the unoccupied land, and what was considered the same thing, the land occupied by the Indians, having originally resided in that government, which was common to all the colonies, and having been conquered from that government, at the joint expense and efforts of all the colonies, passed to the confederation; on the other hand, it was urged, that each State becoming independent, succeeded, within its own limits, to all the rights formerly vested in the Crown. The controversies growing out of this difference of opinion, were of the most serious character. They were one chief cause which retarded the adoption of the articles of confederation; and under the confederation, they formed the subject of some of the most embarrassing questions which were presented to the consideration of the Continental Congress. The difficulties thus arising, were of too great magnitude, to be settled by any positive decision in favour of either party. They were practically obviated by successive acts of cession, on the part of States laying claim to extensive tracts of unoccupied western lands. The conditions on which these cessions were made by the different States were not uniform; nor did Congress in accepting these cessions, admit, that without them, the confederacy would have possessed no title to the unoccupied lands. It was a settlement by compromise, between conflicting parties, whose interests were too important to admit of any other mode of adjustment. Georgia was the only State having large claims to lands on the western frontier, which did not, either before or shortly after the adoption of the Federal Constitution, make such a cession to the United States. Resolutions were repeatedly adopted by the old Congress, recommending to her a cession, on the same principles on which the cessions of the other States, and particularly Virginia, had been made. In the year 1788, Georgia offered to Congress a cession of land, commencing on the Chatahouchie river, &c. a tract, comprehending the lower half of the present States of Alabama and Mississippi. Several conditions were attached to this cession, among others, that of a guaranty to Georgia of all the remainder of the unoccupied lands which she claimed to the west. conditions were not satisfactory to Congress, and the cession was not accepted. In 1795, the Legislature of Georgia proceeded to make extensive sales of the unoccupied lands on her western frontier. Great embarrassment arose relative to the titles acquired under those sales, and at length, in 1802, a compromise was entered into between Georgia and the United States, in virtue of which, and on conditions mutually acceptable, Georgia ceded to the United States all her right and title westward of a certain line; and the United States ceded to Georgia all the claim, right and title of the United States, to the jurisdiction and soil of the territory east of the said line; assuming, at the same time, the obligation of extinguishing the Indian title to all the lands east of the said line, as soon as it could be done 'peaceably, and on reasonable terms.' These articles of cession were concluded between the commissioners of the United States and those of Georgia, on the 24th April, 1801." pp. 2, 3.

These

In a subsequent passage of the Report, it is stated, that

"The right to regulate trade and intercourse with the Indians, was one of the first Federal rights exercised after the commencement of the Revolution. On the 12th of July, 1755, it was resolved by the Continental Congress, that Commissioners be appointed by this Congress to superintend Indian affairs on behalf of these colonies; and the Indians were divided by the same resolution, into the Northern, Middle and Southern departments. In the last department, the Creek Indians were included. By the articles of confederation, Congress had the exclusive power of making treaties; at that time, and it is believed, at all times, the only mode, in a state of peace, in which the relations with Indian tribes, have been conducted in the United States. Congress had also the power of regulating and managing all affairs with the Indians, not members of any of the States: provided, that the legislative right of any State, within its own limits, be not infringed or violated.' This express proviso, and the proviso implied in the words 'not members of any State,' were the sources of much embarrassment under the old confederation. Georgia, particularly, claimed the right to treat with the Creek Indians, concerning peace, lands, and the other objects that usually form the matters of Indian treaties, and in order to establish her right so to do, she, by the treaty of Galphinton, in 1785, stipulated that the Indians of the Creek nation were 'members of the State of Georgia.' In what sense they could have been 'members of the State,' this committee does not understand; and the right of a State to enter into these treaties with the Indians, was strenuously resisted by Congress. At length the Constitution was adopted. The treaty-making power was again vested in the United States. A treaty duly ratified, became the supreme law of the land, any thing in the constitution or laws of any State to the contrary notwithstanding.' By the confederation, the powers of the Congress for regulating trade and managing affairs with the Indians, were limited by the proviso 'that the legislative right of any State, within its own limits, should not be infringed or violated.' No such limitation is found in the Constitution of the United States. This omission was not undesignedly made. It was one of the changes expressly introduced, to prevent the continued collision of Federal and State powers, which had so long existed to the injury of the public. The grant of unqualified power to regulate commerce with the Indians, the exclusive right of repelling by force, their hostile encroachments, and the exclusive power of treating, were necessarily so many infringements upon the jurisdiction of the individual States, and upon the power of the State Legislatures. If any authority be wanted to confirm these principles, it may be found in the forty-second number of the 'Federalist,' a paper written by Mr. Madison. To the Constitution of the United States, thus designedly framed on these points, Georgia became a party, and thereby relinquished, if she previously possessed it, all power to treat with the Indians, and all right to exclusive powers over them. The powers conferred on the General Government, in reference to the Indians, are to be viewed, not more as conferring an authority than as implying and imposing burdens.

With their exclusive rights, in relation to the Indians, devolved on the United States the great duty of defending the States against savage violence. In the discharge of this duty, is laid the foundation of the military establishment of the United States. The first armies raised, after the adoption of the Federal Constitution, were for defence against the Indians. And in this way, the older States of the Union, who struggled in their infancy, alone and unaided, against numerous and powerful tribes of savages, have been charged with, perhaps, the greatest single item of public expenditure, in the fulfilment of the trust and duty of carrying on the relations of the Union with the Indians. But the power and the burden must be reciprocal, and the State which claims the right, by uncontrolled legislation, of causing an Indian war, cannot reasonably call on the Union to sustain the burden of carrying it on." pp. 16-18.

These extracts contain all the material facts and reasonings to be found in the Report, to sustain its conclusions, that the State of Georgia is precluded from entering into any negotiations respecting the extinguishment of Indian title within her territories; and that the power of treating upon that subject with the Indians generally, is exclusively vested in the United States.

Not concurring in these reasonings and resolutions, it will be our object to shew that Georgia, at the declaration of Independence, enjoyed the fee-simple in, and the jurisiction over all the vacant lands in that State; and that she is now invested, exclusively, with the power to extinguish the title to those parts of them which are in the occupation of Indian tribes.

We are not unapprized of the existence of a class of moralists, which limits the right to land on this continent, to the Aborigines, and to those who derive their title from them. We shall not formally discuss this position, which we conceive to be more proper for the abstraction of schoolmen, than for the investigation of statesmen and jurists. Those lawless Indian hordes, once so powerful and terrible, capable of crushing the united bands of our ancestors, have now dwindled into comparative insignificance. Their numbers reduced, their warlike fire quenched; instead of inspiring fear, they are objects of commiseration. Policy and humanity dictate, that they should be treated with considerate and liberal kindness, not as some insist, because we have trampled upon their sovereignty, diminished their population, and usurped their soil, but because from the natural course of circumstances, they have become impoverished and helpless, the rude savage invariably contracting the vices, without participating in the virtues and useful attainments of his civilized neighbours. We have never been able to discover any force in the argument, that as the Indians were

the Aborigines of North-America, and were scattered over its soil, they, therefore, by the law of nature, were the owners of it; but we do discover an infinity of injurious consequences arising from the acknowledgment of the exclusive empire of the savage, over a territory never cultivated by his arm, nor seen by his eye. We can perceive neither justice, nor wisdom, nor humanity, in arresting the progress of order and science, that unproductive and barren wastes may be reserved for the roaming barbarian. We shall never justify the tyranny of the strong, the vigilant and the enlightened, over the feeble, the indolent, and the simple. We contend for no more, than that our forefathers, with untroubled consciences, might seat themselves upon fields far distant from human habitations-might possess themselves of forests which the red man had never traversed, and of rivers and lakes, whose surface he had never ruffled, but in the distant pursuit of his enemy or his prey. "All mankind," says Vattell, "have an equal right to the things that have not yet fallen into the possession of any one; and these things belong to the first possessor.' "There is. another celebrated question to which the discovery of the new world has principally given rise. It is asked if a nation may lawfully take possession of a vast country, in which there are found none but erratic nations, incapable by the smallness of their numbers, to people the whole? We have already said, that the earth belongs to the whole human race, and was designed to furnish it with subsistence: if each nation had resolved from the beginning, to appropriate to itself a vast country, that the people might live only by hunting, fishing, and wild fruits, our globe would not be sufficient to maintain a tenth part of its present inhabitants. People, then, have not deviated from the views of nature in confining the Indians to their narrow limits."+ To lay down rules distinguishing cases, in which nations may, and in which they may not take possession of vacant lands, would be difficult, if not impracticable. would, we presume, be denied by no one, that the means of the Indian's subsistence, in his accustomed modes, should not be invaded; but that what he neither uses nor needs, nor ever could have had an opportunity of even claiming, may be appropriated by others, would seem to be equally just. Upon this, as upon many other questions under the law of nature, perplexities will occur: in disposing of them, we ought to be governed by the precepts of religion and morals, which teach us, that power is not synonymous with right, and that peculiar fort Ibid. c. 19. § 209.

* Vattel, lib. i. c. 18, § 208. VOL. II. NO. 4.

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bearance should be observed towards the defenceless and the ignorant. To return to our more immediate subject.

The declaration of Independence was not the act of united America as one nation, but of the United States of America. It asserted "that the united colonies are, and of right ought to be, free and independent States." The union of all the States, and the sovereignty of each of them, was the principle of the Revolution. Necessity or policy prescribed the extent to which every State bound itself to aid the common cause; but no State engaged, for that purpose, to cede any of its territory, or any jurisdiction over it. Such was the situation of the United States, from the declaration of Independence to the ratification of the articles of confederation. On the 11th June, 1796, (the day after that on which the resolution in favour of independence had passed in a committee of the whole) Congress determined to raise a committee to prepare the form of confederation. On the 12th of June, the committee was appointed, and reported its plan on the 12th of July following, which was adopted by Congress on the 15th of November, 1777. The articles of confederation were, nevertheless, not finally ratified by all the States, until the 1st of March, 1781. The principal obstacle to their signature, was occasioned by the controversies among the States, as to the disposition which should be made of the vacant and unpatented western lands within the States, when they were colonies; a description which comprehended not only lands actually vacant and unpatented, but those which were inhabited by Indian tribes. This question excited such fierce and angry passions, as repeatedly to threaten the destruction of the Union. Some of the States refused to cede any of their lands to Congress; others peremptorily refused to join the confederation, unless the vacant lands were vested in the United States for the common benefit. New-York, to put an end to these discontents, in February, 1780, passed an act, "to facilitate the completion of the Articles of Confederation and perpetual union among the United States of America," with a preamble, declaring, that "whereas the articles of confederation and perpetual union, recommended by the honourable the Congress of the United States of America, have not proved acceptable to all the States, it having been conceived that a portion of the waste and uncultivated territory, within the limits or claims of certain States, ought to be appropriated as a common fund for the expenses of the war; and the people of the State of New-York, being, on all occasions, disposed to manifest their regard for their sister States, and their earnest desire to promote the general interest and security; and more especially, to accelerate the federal alliance, by re