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APRIL 20, 1830. }
Sir, (continued Mr. S.) during the whole summer of he has been called to make of it, has removed the unfa. 1814, the whole seacoast of Massachusetts was kept in a vorable impressions which he had previously entertained constant state of alarm, so much so, that but little else towards it, so far, at least, as to satisfy him of the justice was thought of by any one but the defence of his person, of passing this bill. Deeming it needless at present to his property, and his country: the enemy was not only on trouble the Senate with a more detailed representation of our coast, but often in our harbors; invasion and the de- this claim, I shall forbear doing so, unless it should here. struction of property were daily and nightly apprehended, after become necessary. I shalí, however, willingly meet during the whole season; to prevent which, gu'ırds were any questions that may be proposed, and afford any and established on the whole extent of the coast; many of the every information I possess in relation to it, which may be militia constantly on duty, not only the militia on the sea. asked. board, but that of the interior, were often marched to the Mr. HOLMES made also a few remarks in explanation coast and kept on duty, for the protection of the public, and support of the claim; after which as well as private property, which was there located, and The question was put, and the bill ordered to a third the whole militia of the State under orders to march at reading without a division. the shortest notice. A large portion of these services
THE INDIANS. were rendered on sudden and pressing occasions, to meet The consideration of the bill to provide for an exchange "invasion, or well founded apprehensions of invasion,” of lands with the Indians residing in any of the States or and are such as come clearly within the class of claims Territories, and for their removal west of the river Miswhich has been allowed and paid to other States. Sir, sissippi, was resumed. no one who has examined the documents appertaining to Mr. ADAMS said he was sure that all must feel embarthis claim, can, I think, have failed to be convinced, that rassment in addressing, for the first time, the Senate of during the summer of 1814, the State of Massachusetts the United States; and, especially, on a subject of so much was in constant and imminent danger of invasion, and importance as that now under consideration. But mine without any other means of defence than its own militia, [said he] is greatly increased from never before having acting, some under United States' officers, some under been a member of a legislative assembly. But I feel great their own officers, and all acting in concert and upon encouragement, from a knowledge that this circumstance plans of operation, mutually agreed upon by the officers will increase towards me the generous indulgence and of the United States, (both military and naval) and the courtesy for which this body is so distinguished; and I officers of the State. By this union of council and ope- feel that it will be owing to that indulgence that I will be ration, the State was protected from invasion by the peo- able to lay before the Senate the few imperfect observaple of the State, at their own expense, and at less expense tions which occur to me on the subject before us. than it could otherwise have been done, for which they The question, which is submitted to us by the bill itself, ask such remuneration, and only such, as has been made as reported to the Senate by the Chairman of the Commit. for the like services, rendered by their fellow-citizens of tee on Indian Affairs, is this: whether Congress will auother States; they expect no less, they ask no more; but, thorize the President of the United States to exchange sir, they have been asking for this a long time.
territory belonging to the United States west of the river (Mr. SILSBEE here gave a statement of the proceedings Mississippi, and not within the limits of any State or upon this claim, by the executive and legislative branches organized Territory, with any tribe of Indians, or the inof the General Government, from its first presentation in dividuals of such tribe, now residing within the limits of February, 1817, to the present time, and read extracts any State or Territory, and with whom the United States from the reports of the different committees of the House have any existing treaties, who may voluntarily choose to of Representatives, to which it had been referred in 1818, make such exchange for the lands which such tribe of in 1824, and in 1826; also from the special messages of Indians, or the individuals of such tribe, at present occupy; the late President Monroe, of 1823, 1824, and 1825, and to compensate individuals of those tribes for improvements from the resolution of the House of Representatives of made upon the lands they now occupy; to pay the exDecember, 1826, under the authority of which the re- penses of their removal and settlement in the country west port of the Third Auditor was made, upon which the bill of the Mississippi, and provide them necessary subsistence before the Senate was founded.]
for one year thereafter. It is shown by these documents, (said Mr. S.) which The authority contemplated by the bill is, to make the have been furnished by the Government of the United exchange of territory with those Indians, and with those States, in relation to this claim, that the late President only, who are willing to make it. The friends of this Monroe, (than whom no one knew more of its history, measure do not wish to vest power in the President of the and who had no reason to entertain predilections for it) United States to assign a district of country west of the in three special messages to Congress, recommended its Mississippi, and, by strong arm, to drive these unfortunate settlement and payment, according to the rules by which people from their present abode, and compel them to similar claims of other States had been adjusted and paid. take up their residence in the country assigned to them. And every committee of Congress, to whom it has been re. On the contrary, it is their wish that this exchange should ferred, (and it has now been under the consideration of four be left to the free and voluntary choice of the Indians different committees) have been led to the same conclu- themselves. sion, and have reported that it ought to be paid to that Is there any thing alarming in this proposition? any extent. The amount specified in the bill now under con- thing to cause that fear and trembling for the fate of the sideration, is that which has been found to be due, by an unfortunate Indian, which have been manifested in the investigation of the most scrutinizing officer of this Go opposition to this bill? Is there any thing to call forth vernment, under a resolution of the House of Represen- those animated denunciations against those who disregard tatives, founded upon the recommendations and reports and violate the faith of treaties? As if those who support just mentioned. And it is now before the Senate with this measure were ready to prostrate at the foot of their these high testimonials in its support. Such testimonials, own sordid interest the honor of the nation, and inemanating from such sources of information in relation to Aict a stain upon her escutcheon that all the waters of the this claim, seem to be sufficient to show that it needs only Mississippi could not wash out. I confess, for my own to be examined, to be approved by all, of which, if any part
, I can see nothing in the provisions of the bill before doubt remained, that doubt must be considered as entire-us unbecoming the character of a great, just, and magly removed by the frank and honorable avowal of the nanimous nation. And, indeed, if I had heard only so much Chairman of the Committee; that the examination which of the eloquent speeches of those who oppose the passage
[APRIL 20, 1830.
of the bill as enjoined upon us the strictest good faith in the and in the enjoyment of all their rights of territory and observance of treaties, I would have concluded that they government, as heretofore exercised and enjoyed, from were the warmest advocates of the proposed measure. all interruption and encroachments."
As early as the year 1802, the United States entered This is, perhaps, the first attempt, by an act of Coninto a compact with the State of Georgia, which compact gress, to operate directly on the legislation of the States, was ratified in the most solemn manner, being approved which has been made since the institution of this Governby the Congress of the United States and by the Legisla- ment, and it is to be hoped it will be the last. The avow. ture of the State of Georgia. By this agreement, the ed intention is, to interpose the power of the Federal United States obtained from the State of Georgia a cession Government to prevent the action of the laws of the States of territory sufficient, in extent, to form two large States, in question, within their own acknowledged boundaries, and and in part consideration for such an immense acquisition to exempt from the influence of those laws a portion of of territory, agreed, on their part, in the most solemn the population. It has sometimes happened to States that manner, to extinguish, for the use of Georgia, the Indian acts of their Legislatures have been declared unconstitutitle to all the lands situated within the limits of that State, tional by the Supreme Court of the United States, and, “as soon as the same could be done peaceably and upon consequently, inoperative and void in the particular case reasonable terms.” Although this is not, in the technical in question. The Supreme Court, however, act on a sinsense of the term, a treaty entered into by the United States gle statute at a time; but, in the mode proposed by the with the State of Georgia, yet it is an agreement upon a amendment in question, Congress may sweep off whole full and valuable consideration; and good faith on the part codes in a moment by a single clause. It is plain, then, of the United States requires its fulfilment, according to if the bill pass with this amendment, that the laws of the its true spirit and intent. The bill under consideration States and of the Federal Government must come into proposes a mode by which this agreement may be per- collision. The bill speaks of tribes residing within any formed; by which the Indian title to all the lands within State or Territory, and with whom the United States have the boundaries of that State may be extinguished, peace-existing treaties. Treaties exist between the United States ably, and upon reasonable terms. Peaceably, because it and Indians residing within the States of New York, Georis only to operate upon those Indians who are willing to gia, Alabama, and Mississippi, and the Legislatures of all
And upon reasonable terms, because they are these States have extended all, or a part of their laws, to receive other lands in exchange for those which they over those Indian tribes respectively. The collision which give up; just compensation for improvements made by will arise between the laws of the Federal Government them; the expense of their removal and settlement paid, and of the States will extend to four of the States of the and subsistence for one year furnished them. Would it Union. And if the federal law be constitutional, the Prenot, therefore, have been reasonable to suppose, that those sident of the United States will be bound by his oath of who have said so much about the high and sacred obliga- office to see that it shall be faithfully executed. And tion of treaties, and how essentially the great name of every gentlemen have told us that, if milder means will not an. nation depends upon their strict observance, would be swer the purpose, the strong arm of the Government amongst the foremost and warmest supporters of the bill must be employed; by which I understand that a military under consideration. And certainly it was matter of aston- force must be arrayed against the contumacious States, to ishment to me to find that all their mighty efforts had bring them into subjection, and to compel them to acknowanother aim. And, as an excuse for that, we are told, ledge the right of the Indian tribus to live under their own that although this bill appears harmless on the face of it; usages, government, and laws. that although all its exterior seems well ordered, and no Let us see what will be the practical operation of this Inobjection can be urged against it in the abstract, yet there dian protective system. According to the usages and are facts and circumstances so connected with it as to laws of the nations of Indians residing within the State of make it in the highest degree objectionable, and to justify New York, witchcraft is declared to be a crime, and capi; the unsparing animadversions which have been bestowed tal punishment is to be inflicted upon those who are found
guilty. But, by the laws of the State of New York, exThe following portion of the message of the President tended over those tribes, the infliction of such punishment of the United States to the present Congress, has been by any one of the tribe, for such supposed offence, is deread, and urged as one of the causes of alarm.
clared to be murder, and the offender is liable to be con[Here Mr. A. read several paragraphs from the message victed, and to suffer the penalty of the law in such cases. to which he had alluded.]
Here is a conflict of laws, and under the proviso in ques. The principle insisted on in this part of the message, tion, the Indian tribe, upon complaint made to the Execudenying to the Indian tribes within the limits of the states tive of the United States, to see that they should be prothe rights of separate government; recommending to them tected in the enjoyment of their own government, usages, to remove beyond the Mississippi, and declaring to them and laws, and upon the refusal of the State of New York distinctly, that, if they remain within the limits of the to yield to the persuasion of the President of the United States, they must submit to the laws of the States within States, and to surrender all claim to govern the people whose limits they reside, is contrary to the provisions of within her limits--the strong arm of this Government--its the treaties made by the United States with several of military force must be interposed to protect the Indian those tribes, and now existing in full force-particularly tribes, and to see that they enjoy the usage of punishing with the Creeks, Choctaws, Chickasaws, and Cherokees; their own witches in their own way. that the acts of the Legislatures of Georgia, Alabama, and By a law of the Cherokee republic, a plurality of wives Mississippi, extending the laws of those several States over is authorized: but, by the laws of Georgia and Alabama, the Indians residing within their respective limits, are this is regarded as a crime, and those who are guilty are also in violation of those treaties; that they are calcu- liable to severe punishment. But, by the guarantee conlated to compel the emigration of those tribes: and, to templated in this proviso, if the laws of Georgia or Alacounteract and defeat the operation of the opinion ex- bania were to interpose between the privileged Cherokee, pressed by the President of the United States, and this and the enjoyment of his fifty wives, all that would be neimproper legislation, as it is called, of those States, an cessary to ensure that enjoyment, would be to call on the amendment has been offered. The amendment is in these Executive Department of this Government, point to the words: “Provided, always, that, until the said tribes or guarantee, claim its execution, and, if nothing else will do, nations shall choose to remove, as by this act is contem- the claims of Georgia and Alabama must be silenced by plated, they shall be protected in their present possessions, the military force of the nation.
APRIL 20, 1830.)
By a usage of the Choctaws, homicide is punishable the statesman, and no inquiry beyond it has been thought with death in all cases, with a single exception, which ex necessary, or even tolerable; and it has been left to the ception is when one man kills another in a ball play. But, sympathies--the mistaken sympathies, as I must call them-by the laws of Mississippi, it is excusable when done in of the present day, to call up this title of the savage from self-defence, and to save the life of the person attacked. its sleep of ages, and urge it on this floor and elsewhere, But if the laws of that State were to interfere to prevent as prior and paramount to that of civilized nations. the life of an innocent man from falling a sacrifice to this If gentlemen are really in enrnest in the opinions which absurd and barbarous ilsage, the laws of the Union would they have expressed; if the remonstrants who have load. be violated, and the State must submit to chastisement for your table with their petitions, are really in earnest; if an act of humanity.
the pamphileteers who have inundated the country with But the argument on the other side shows this proviso abuse upon the present administration, and poured out to be unnecessary. For, it is insisted that, by virtue of the phials of their unsparing wrath upon Georgia, are treaties now existing, the separate existence as nations, of really in earnest; if they really believe that civilized man the several Inclian tribes within the limits of those States, has lawlessly usurped the territory and dominion of the bar. is acknowledged, and that, in their character of nations, barian, then let them show their sincerity and consistency, the United States have promised them protection; and by asking for this much injured and almost exterminated that, by virtue of the obligation of treaties, this protection race, that ample measure of justice which the magnanimi. ought to be extended to them. If such treaties exist, and ty of their professions purport; let them not only ask, but they are the supreme law of the land, then no additional do justice; call them back from the deep wilderness to supremacy can be conferred by the proviso, and no addi- which they have been driven; restore to them this fair tional obligation can be imposed on the Executive Depart- and happy land, from which they have been cruelly exment of the Government, to do that which is already en- pelled; give them up your fields, houses, cities, temples joined by treaties. The argument, therefore, shows all of justice, and halls of legislation. All I have to ask is, farther legislation to be unnecessary.
that those whose sense of justice is with them a principle The Cherokee tribe of Indians having erected an inde- so prevailing, shall begin this retrograde to barbarism at pendent Government within the limits of the States of bome; that they shall first surrender that which more im. Georgia and Alabama, and those two States claiming the mediately concerns themselves, and over which they would rights of exclusive sovereignty within their respective seem to have a more direct control, and then call upon us limits, extended their laws over those Indians. 'Under to follow an example so worthy. But I think it is not difthese circumstances, an appeal was made to the Executive ficult to foresee that this work of restoration would not of the United States by those Indians, claiming to be pro- proceed far before the pretended philanthropist would tected in the enjoyment of the Government which they quarrel with his own rule of abstract justice, and content had established for themselves. The question was then himself with permitting things to remain as they are. submitted for the decision of the President of the United But, it is said, it was the policy of Great Britain, and States, and, under the oath which he had taken to support most of her colonies, to procure cessions of territory from the constitution, he determined that no such Government the Indians by treaty; and, of course, in the settlement of could be erected withont the consent of the States within this great account of domain and empire with the red which it was formed. The question is, therefore, decided man, credit should be allowed for all that was thus acquired. as to them. If it was unconstitutional, under the state of But, according to the rule of hard morality and abstract things which then existed, it would continue to be uncon. justice, which we have been taught on this occasion by the stitutional unier the proposed amendment; and it would advocates of Indian rights, there is but slight difference in never do for Congress to reconsider a question of consti- the title to that which has been acquired by conquest in tutional law, decided by either of the other distinct and the strictest sense of the term, and that wliich has been independent departments of the Governinent, upon a acquired by treaty and cession: for I am sure that, if the question properly submitted to such departments, and re history of those transactions could be truly known, it verse that decision. If they can do so in regard to the would appear, that, if the one originated in force, the Executive, why not in regard to the Judiciary? For both other was obtained by fraud. In the one case, the physithe Executive and Judiciary derive the power of decision cal strength of the indian, liis daring courage, and his from the same source, not because it is expressly said in knowledge of his own terrible mode of war, placed him the constitution, that the Judiciary or the Executive shall upon something like terms of equality with the white disregard a law not made in conformity to that instru- man; whilst, in the other, his ignorance of negotiation, ment, but because each is required to take an oath to sup- and the arts, and stratagems, and deceptions, always used port the constitution as the paramount law; and when any upon such occasions, rendered him a blind and easy victim. statute or any treaty is made or passed contrary to its pro- In the rotunda there are two alto relievos intended to visions, each of those departments before which the ques commemorate important events in the history of this un. tion may arise, is bound to declare it a nullity. The Ex- fortunate people, and which, in some degree, illustrate ecutive has, then, upon the matter fairly submitted to it, the truth of what I have said. In the one, 1682, the decided the constitutional question, as to the Government great founder of Pennsylvania is represented in the act of erected by the tribe of Cherokecs, and no law which we presenting a treaty to his red brethren; with his right can pass can possibly change the principle of that de hand he grasps that of the chief, with his left he unrolls cision. It rests upon the authority of the constitution the treaty. The pipe is withdrawn from the lips of the itself.
old Indian, and he is all attention to the earnest tulk of the But it seems that, for the sake of doing justice to In- younger. You can see that the whole savage is tamed, dian rights, all things are to be resolved into their original and his terrible spirit, the only power with which nature elements, and we are called upon to decide the subject had endowed him, to preserve unmolested the ancient before us according to principles of abstrict justice. possessions of his fathers, is subdued and conquered by
The vast country which now forms the United States, the irresistible superiority of the white man, and that he with the exception of Louisiana, was, at one time, subject is ready to subscribe whatever terms may be dictated. And to the juris«liction and sovereign dominion of Great Bri- we cannot help thinking, that, without much violence to
She claimed it by right of discovery and conquest, historical truth, another figure might have been introduc. ind, added to this, the superior claims of an agricultural ed into the group, and we almost expect to see, half conover a savage and barbarous people. This title has al- cealed behind the lofty elm which overshadows them, ways heretofore been considered sufficient by the jurist and the well trained pedestrian ready to set off and measure,
(April 20, 1830.
with the velocity of a bird, the day's journey which was this subject: “And whereas, it is just and reasonable, and to bound the ceded territory."
essential to our interest, and the security of our colonies, In the other, we behold that immortal hunter of Ken- that the several nations or tribes of Indians with whom we tucky, Daniel Boon, not only immortal from his own deeds are connected, and who live under our protection, sholl and the monument here erected to him, but married to a not be molested or disturbed in the possession of such more enduring immortality in the verse of Byron. We parts of our dominions and territories, as not having been behold him engaged in mortal combat against fearful odds. ceded to, or purchased by us, are reserved to them, or Having planted his foot on one of the chemy who had fal. any of them, as their bunting ground. len before bis rifle, he fearlessly braves the uplifteil toma “And we do, hereby, strictly forbid, on pain of our hawk that gleams in the hand of the surviving savage; and displeasure, all our loving subjects from making any purwe tremble lest the deadly weapon sbould descend ere the chases or settlements whatever, or taking possession of intrepid Boon can strike. And thus it is with the poor ill- any of the lands above reserved, without our special leave fated Indian. In the one case, he is subdued, and blindly and license for that purpose, first obtained.” compelled to yield up his country by the superiority of The first remark which occurs on the provision in this mental strength. In the other, it is the issue of more doubt. proclamation with regard to the Indians, and the reservaful controversy. But the melancholy truth is established, tion to them of hunting grounds is, that those very hunt. “that the day on which the white man set his foot on Jing grounds are regarded in the instrument itself as the these shores, the destiny of the red man was fixed for- dominion and territories” of the crown; and the Indian
right as an emanation from the crown; and the power to But how has title derived from ludian tribes been regard- grant "leave and license” to any person to purchase or ed, when urged by individuals in courts of justice? Has to take possession of the reserved lands, is clearly and disit not been considered utterly worthless? How has it been tinctly recognized. Then the question occurs, could Great regarded by States, when they were interested in insisting Britain, consistently with the principle expressed in the on it? Have they not held it in such low estimate, that not proclamation of 1763, legislate over those Indians? or, in one has ever relied on it as conferring even a shadow other words, could she legislate over every individual of of right? A few facts will show this. Disputes with re- whatever color, habits, or nation, resident within her acspect to territory and territorial jurisdiction have at vari. knowledged “dominior.s and territories." I believe that ous times arisen between different States of this Union. no one who has any knowledge of the theory of the Bri Pennsylvania and Virginia, Pennsylvania and Connecticut, tish constitution will say that she could not so legislate. Virginia and North Carolina, South Carolina and Georgia, Lord Mansfield, in delivering the opinion of the Court have contested questions of this kind with each other. in the case of Campbell vs. Hall
, reported by Cowper, And controversies of this kind are always conducted with lays down the following propositions: “That the law and the greatest possible care. The best talents are employ- legislative government of every dominion equally affects ed; the greatest research takes place; every color of claim all persons
and all property within the limits thereof, and which promises the least avail is set up, and every reason is the rule of decision for all questions which arise there. and every argument are urged. Is it known, that, upon Whoever purchases, lives, or sues there, puts himself upany such controversy, a treaty or cession from an Indian der the law of the place. An Englishman in Ireland, Mi. tribe, however ancient, has ever been set up to turn the norca, the Isle of Man, or the Plantations, has no privilege scale even in a case of doubt? I confess that, if such a distinct from the natives.” case has happened, I have not heard of it. On the con. The sixth and last proposition is, that if the King (and trary, those disputes have always turned upon the terms when I say the King, I always mean the King without the and dates of the charters from the crown, and the exter- concurrence of Parliament) has a power to alter the old nal objects called for as designating their locality, and and to introduce new laws, in a conquered country, this le show the opinions of all those concerned, that the title, gislation being subordinate, that is, subordinate to his own and the only title, originated with those charters. For authority in Parliament, he cannot make any new change surely, in some of those many disputes, priority of Indian contrary to fundamental principles. H: cannot exempt cession might have been made a question, if it had not an inhabitant from that particular dominion, as, for inbeen for the universal opinion that it would be unavailing: stance, from the laws of trade, or from the power of Par
But how did Great Britain regard the rights of Indians? liament, or give him privileges exclusive of his other subAnd before I enter upon this part of the subject more jects, and so in many other instances that might be put. particularly, it would be well to state the question which The question in the case in which these propositions arises out of the acts of the State Legislatures, by which are laid down, arose out of the proclamation of 1763, in the Indians within their limits are subjected to the laws of regard to the inhabitants of Grenada, the gorernment of the State. Those States (lo not claim the right of depriv- which was erected by that proclamation. And here the ing the Indians of any title which they inay have to the principle is not only asserted, that the law and legislatire land or territory they occupy, or of disturbing them in government of every dominion is supreme over all per the possession or enjoyment of any other property, which sons and property within its limits, but that the King him belongs to them. Those States only claim the right to self cannot exempt any inhabitant from the power of Parlegislate over them, as a part of the population subject to liament. their laws. With this question in view, let us inquire what In regard to the other colonies in America, the power to was their situation whilst this country was subject to the legislate was conferred by the charters from the crown; jurisdiction of Great Britain... By the proclamation of the and, I believe, no doubt was ever entertained, during the ex7th of October, 1763, the following provision is made on listence of the colonial government, that the Legislatures
thereof had full power to enact laws for the government •I have heard it said, that, in one of the treaties negotiated in early of the Indians within their respective limits; and if a ques times with a tribe of Indians residing in Pennsylvania, and by which 4 large tract of country, eituate on the Delaware river, was acquired, tion arose at all, it could not have been a question of powthe agreement was, that the Indians ceded to the proprietor of the er, but a question as to what kind of law was proper and os farop as a man conid walk in a day. The fact was, that, berwen expedient in the particular case. And, accordingly, we the points , the river made a great bend, and much could be gained 10 find that Massachusetts, Connecticut, New Hampshire,
This was the course pur. New York, New Jersey, Pennsylvania, Maryland, Virginia, sued, But this was not all. The most expeditious pedestrian was puro-North Carolina, and Georgia, all legislated on the subject Lefore nigh: they were tired out, and he was left to deterinine the dis of Indian affairs, and no exception seems ever to bave Lance as he pleased.- Note by Mr. A.
been taken to the exercise of that power.
APRIL 20, 1830.
(SESATE. Thus stood the matter as to the power to legislate over power are void, and the States may legislate as if no such Indians within the limits of the colonial governments prior linitation had been imposed: and the whole argument on to the Revolution. A power undisputed and indisputable. the other side against State legislation over the Indians,
The United States declared themselves independent on which is made to depend upon the stipulations of the treathe 4th day of July, 1776. The arms of the Union were ties of Hopewell, goes upon the very ground, that by victorious. Great Britain was conquered. This conquest those treaties the legislative power of the States is limit. was followed by a definitive treaty of peace in 1783. This ed; which, as I have endeavored to show, is a self-detreaty acknowledged the independence of the United stroying argument. States. And all our statesmen and jurists consider that But the question arises,-Were those treaties binding on the independent sovereignty of each State in the Union, the United States? I answer, unquestionably they were. respectively, commenced, and must be dlated, to all legal That the United States were bound, either to execute the purposes, on the 4th day of July, 1776. But it has been treaty specifically, or, if they had not power to do that, said, that whatever was gained by conquest belonged to they were bound to give compensation. And it has been the conqueror: that the United States u ere the conqueror, admitted, that, if the United States were under two obliand that all acquisitions accrued to them. I know that gations, that which was first in point of time must be spethis argument was once urged by some of the small States, cifically executed, if both cannot be so executed; and that who had no unpatented lands, as a reason why they should the subsequent obligation can only be discharged by inparticipate equally in the vast regions of ungranted lands, demnity, and that good faith requires no more. Apply situated within the chartered limits of the larger States. this rule to the present question. Was not the obligation But I never knew it to be urged as a reason to show that on the United States, commencing with the articles of sovereignty and legislation were a joint acquisition, and confederation themselves, to preserve from all violation belonged, by right of conquest, to the United States, and and infringement the legislative rights of the States witlinot to the States respectively. On the contrary, I believe in their limits, prior to any stipulation inconsistent with it has never been doubted, much less denied, that the such obligation in the treaties above referred to? and, States, respectively, from the declaration of indepen- therefore, according to the rule as admitted, the States dence, possessed every attribute of sovereignty. That must be preserved in their right and power to legislate; each State was sovereign within her own limits, to the and from any injury arising from this cause to the Indians, same extent that Great Britain was before the declaration they can only call on the United States to indemnify them. of independence. The capacity to affect, by her legisla. It is insisted that those tribes of Indians are nations cative government, all persons and all property within her pable of making treaties. If so, surely it would be prolimits, is an essential attribute of that sovereignty which per for the States to say, in this controversy, to those belongs to every State. I must conclude, therefore, that tribes of Indians-you were bound, when you entered the Indians within the limits of the States did not form an into treaty stipulations with the United States, to know exception, and that, subsequent to the declaration of inde- the limits of their powcr; and if in those stipulations they pendence, the States had the power to legislate over them. have exceeded their power, you are properly chargeable
But it is insisted that, by the articles of confederation, with the knowledge that they did so exceed their power. the States surrendered up this power to Congress, and in a case of this kind, compensation is complete justice. that any exercise of such power by the States after that If A covenant to convey to B a certain house and land, to was void. One of the clauses of that instrument relied which A has no title, and cannot procure one, so as to on in support of this argument, is in these words: “That comply with his covenant, the only satisfaction wbich B Congress shall have power to regulate the trade and could obtain would be damages for the breach of the conmanage all affairs with the Indians not members of any of tract. If B, in the case supposed, had no notice of the the States; provided that the legislative rights of any want of power on the part of A to make the conveyance, Slate within its own limits are not infringed or violated." it might be considered as a hard case that he could not ob
During the continuance of the articles of confederation tain specific performance; but if he was chargeable with in the years 1785 and 1786, the treaties of Hopewell with such notice, then ample justice would be done him by the Cherokees, Choctaws, and Chickasaws, were entered compensation in damages. into. And, without going into the particular stipulations But it is said, according to the articles of confedera. of those treaties, which is unnecessary in the examina- tion, that the United States in Congress assembled shall tion of the power vested in Congress under the clause of have the sole and exclusive right and power of determin. the articles of confederation in question, it may be taken ing on peace and war;” and that, in the constitution of the for granted, that the treaties either infringe the legisla- United States, power is also given to the United States to tive rights of the States, within the limits of which the declare war, and that the treaties in question are valid iribes with whom the treaties were made, resided, or that under these powers. they do not so infringe those rights. If the latter, the I admit, that, whenever the relation of war arises beStates are left free to legislate as if no such treaties had tween the United States and any other party, whether it been made. If the former, then Congress had no power se a tribe of Inclians, the leaders of an insurrection--for to enter into any stipulation with the Indian tribes, by insurrection might be so formidable as to create the relawhich the legislative rights of the States within their own tion of war--or an independent nation, the United States limits would be infringed or violated; and such stipula. may conclude such war by a treaty of peace. But surely tions are without authority, and, as regards the States af- this is a limited power, and the United States could not, fected by them, are absolutely void. What are the legis- constitutionally, agree to every kind of condition which Lative rights of a State? Are they not those rights, or might be proposed; otherwise it would follow, that, whenrather that power, by which a State dictates the rule of ever war existed, the President and Senate would have civil conduct to every rational being within her territorial the constitutional power to destroy the rights of any or limits? This power is expressly reserved by the clause in every State in the Union. And yet all will agree, that all question-not in regard to a particular district, and to a the departments of the Government of the United States particular description of people, but throughout her combined could not take away any of the reserved rights whole boundaries, and over every subject within them. of the States. Thus, if in a treaty of peace macle with The proposition, therefore, for wh ch i insist, is, that, if an Indian tribe residing within the limits of the State of the treaties referred to abridge this legislative power in re- Georgia, the right of that State to legislate over those Ingard to any description of people residing within the limits dians could be taken away, what would prevent the of the States, as to the States themselves, these limitations of treaty-making power, if so disposed, from taking away