raised their voice against this hard policy before I came into the national councils. My own was soon raised there against it: and it is certain that a great amelioration has taken place in our federal land policy during my time: and that the sentiment of Congress, and that of the public generally, has become much more liberal in land alienations; and is approximating towards the beneficent systems of the rest of the world. But the members in Congress from the new States should not intermit their exertions, nor vary their policy; and should fix their eyes steadily upon the period of the speedy extinction of the federal title to all the lands within the limits of their respective States;-to be effected by pre-emption rights, by donations, and by the sale (of so much as shall be sold), at graduated prices,-adapted to the different qualities of the tracts, to be estimated according to the time it has remained in market unsold-and by liberal grants to objects of general improvement, both national and territorial.

CHAPTER XXXVI.

CESSION OF A PART OF THE TERRITORY OF
ARKANSAS TO THE CHEROKEE INDIANS.

and added a fertile belt-a parallelogram of forty miles by three hundred along her whole western border-and which was necessary to compensate for the swamp lands in front on the river, and to give to her certain valuable salt springs there existing, and naturally appurtenant to the territory, and essential to its inhabitants. Even with this extension the territory was still deficient in arable land-not as strong as her frontier position required her to be, nor susceptible (on account of swamps and sterile districts) of the population and cultivation which her superficial contents and large boundaries would imply her to be. Territorially, and in mere extent, the western addition was a fourth part of the territory: agriculturally, and in capacity for population, the addition might be equal to half of the whole territory; and its acquisition was celebrated as a most auspicious event for Arkansas at the time that it occurred.

In the month of May, 1828, by a treaty negotiated at Washington by the Secretary at War, Mr. James Barbour, on one side, and the chiefs of the Cherokee nation on the other, this new western boundary for the territory was abolishedthe old line re-established: and what had been an addition to the territory of Arkansas, was ceded to the Cherokees. On the ratification of this treaty several questions arose, all raised by myselfsome of principle, some of expediency--as, whether a law of Congress could be abolished by an Indian treaty? and whether it was expedient so to reduce, and thus weaken the territory (and future State) of Arkansas? I was opposed to the treaty, and held the negative of both questions, and argued against them with zeal and perseverance. The supremacy of the treaty-making power I held to be confined to subjects within its sphere, and quoted "Jefferson's Manual," to show that that was the sense in which the clause in the constitution was understood. The treatymaking power was supreme; but that suprem

ARKANSAS was an organized territory, and had been so since the year 1819. Her western boundary was established by act of Congress in May 1824 (chiefly by the exertions of her then delegate, Henry W. Conway),—and was an extension of her existing boundary on that side; and for national and State reasons. It was an outside territory-beyond the Mississippi-a frontier both to Mexico (then brought deep into the Valley of the Mississippi by the Florida treaty which gave away Texas), and to the nu-acy was within its proper orbit, and free from merous Indian tribes then being removed from the South Atlantic States to the west of the Mississippi. It was, therefore, a point of national policy to make her strong-to make her a first class State, both for her own sake and that of the Union, and equal to all the exigencies of her advanced and frontier position. The extension was on the west-the boundaries on the other three sides being fixed and immovable

the invasion of the legislative, executive, or judicial department. The proper objects of treaties were international interests, which neither party could regulate by municipal law, and which required a joint consent, and a double execution, to give it effect. Tried by this test, and this Indian treaty lost its supremacy. The subject was one of ordinary legislation, and specially and exclusively confined to Congress. It was to repeal a law which

Congress had made in relation to territory; and to was: Messrs. Barton, Berrien, Bouligny, Branch, reverse the disposition which Congress had made Ezekiel Chambers, Cobb, King of Alabama, of a part of its territory. To Congress it be- McKinley, McLane of Delaware, Macon, Ridgelonged to dispose of territory; and to her it be-ly, Smith of Maryland, Smith of South Carolina, longed to repeal her own laws. The treaty avoided the word "repeal," while doing the thing: it used the word "abolish "—which was the same in effect, and more arrogant and offensive-not appropriate to legislation, and evidently used to avoid the use of a word which would challenge objection. If the word "repeal had been used, every one would have felt that the ordinary legislation of Congress was flagrantly invaded; and the avoidance of that word, and the substitution of another of the same meaning, could have no effect in legalizing a transaction which would be condemned under its proper name. And so I held the treaty to be invalid for want of a proper subject to act upon, and because it invaded the legislative department.

John Tyler of Virginia, and Williams of Mississippi. The negative was, Messrs. Benton, Eaton, Rowan, and Tazewell.-Mr. Calhoun was then Vice-President, and did not vote; but he was in favor of the treaty, and assisted its ratification through his friends. The House of Representatives voted the appropriations to carry it into effect; and thus acquiesced in the repeal of an act of Congress by the President, Senate, and Cherokee Indians; and these appropriations were voted with the general concurrence of the southern members of the House. And thus another slice, and a pretty large one (twelve thousand square miles), was taken off of slave territory in the former province of Louisiana; which about completed the excision of what had been left for slave State occupation after the Missouri compromise of 1820, and the cession to Texas of contemporaneous date, and previous cessions to Indian tribes. And all this was the work of southern men, who then saw no objection to the Congressional legislation which acted upon slavery in territories-which further curtailed, and even extinguished slave soil in all the vast expanse of the former Louisiana-save and except the comparative little that was left in the State of Missouri, and in the mutilated Territory of Arkansas. The reason of the southern members for promoting this amputation of Arkansas in favor of the Cherokees, was simply to assist in inducing their removal by adding the best part of Arkansas, with its salt springs, to the ample millions of acres west of that territory already granted to them; but it was a gratuitous sacrifice, as the large part of the tribe had already emigrated to the seven millions of acres, and the remainder were waiting for moneyed inducements to follow. And besides, the desire for this removal could have no effect upon the constitutional power of Congress to legislate upon slavery in territories, or upon the policy which curtails the boundaries of a future slave State.

The inexpediency of the treaty was in the question of crippling and mutilating Arkansas, reducing her to the class of weak States, and that against all the reasons which had induced Congress, four years before, to add on twelve thousand square miles to her domain; and to almost double the productive and inhabitable capacity of the Territory, and future State, by the character of the country added. I felt this wrong to Arkansas doubly, both as a neighbor to my own State, and because, having a friendship for the delegate, as well as for his territory, I had exerted myself to obtain the addition which had been thus cut off. I argued, as I thought, conclusively; but in vain. The treaty was largely ratified, and by a strong slaveholding vote, notwithstanding it curtailed slave territory, and made soil free which was then slave. Anxious to defeat the treaty for the benefit of Arkansas, I strongly presented this consequence, showing that there was, not only legal, but actually slavery upon the amputated part-that these twelve thousand square miles were inhabited, organized into counties, populous in some parts, and with the due proportion of slaves found in a southern and planting State. Nothing would do. It was a southern measure, negotiated, on the record, by a southern secretary at war, in I have said that the amputated part of Arreality by the clerk McKinney; and voted for kansas was an organized part of the territory, by nineteen approving slaveholding senators divided into counties, settled and cultivated. against four dissenting. The affirmative vote | Now, what became of these inhabitants ?—their

property? and possessions? They were bought forts on the part of the British commissioners, out by the federal government! A simultaneous to set up a title to it, its restitution was stipuact was passed, making a donation of three hun-lated under the general clause which provided dred and twenty acres of land (within the re- for the restoration of all places captured by maining part of Arkansas), to each head of a either party. But it was not restored. An family who would retire from the amputated empty ceremony was gone through to satisfy the part; and subjecting all to military removal words of the treaty, and to leave the place in the that did not retire. It was done. They all hands of the British. An American agent, Mr. withdrew. Three hundred and twenty acres of John Baptist Prevost, was sent to Valparaiso, to land in front to attract them, and regular troops go in a British sloop of war (the Blossom) to receive in the rear to push them, presented a motive the place, to sign a receipt for it, and leave it in power adequate to its object; and twelve thou- the hands of the British. This was in the ausand square miles of slave territory was evacu-tumn of the year 1818; and coincident with that ated by its inhabitants, with their flocks, and herds, and slaves; and not a word was said about it; and the event has been forgotten. But it is necessary to recall its recollection, as an important act, in itself, in relation to the new State of Arkansas-as being the work of the South-and as being necessary to be known in order to understand subsequent events.

CHAPTER XXXVII."

RENEWAL OF THE OREGON JOINT OCCUPATION
CONVENTION.

THE American settlement at the mouth of the Columbia, or Oregon, was made in 1811. It was an act of private enterprise, done by the eminent merchant, Mr. John Jacob Astor, of New-York; and the young town christened after his own name, Astoria: but it was done with the countenance and stipulated approbation of the government of the United States; and an officer of the United States navy-the brave Lieutenant Thorn, who was with Decatur at Tripoli, and who afterwards blew up his ship in Nootka Sound to avoid her capture by the savages (blowing himself, crew and savages all into the air).—was allowed to command his (Mr. Astor's) leading vessel, in order to impress upon the enterprise the seal of nationality. This town was captured during the war of 1812, by a ship of war detached for that purpose, by Commodore Hillyar, commanding a British squadron in the Pacific Ocean. No attempt was made to recover it during the war; and, at Ghent, after some ef

nominal restitution was the conclusion of a con-
vention in London between the United States
and British government, for the joint occupation
of the Columbia for ten years-Mr. Gallatin
and Mr. Rush the American negotiators-if
those can be called negotiators who are tied
down to particular instructions. The joint occu-
pancy was provided for, and in these words:
"That any country claimed by either party on
the northwest coast of America, together with its
harbors, bays, and creeks, and the navigation of
all rivers within the same, be free and open, for
the term of ten years, to the subjects, citizens,
and vessels of the two powers; without preju-
dice to any claim which either party might have
to any part of the country."
."—I was a practising
lawyer at St. Louis, no way engaged in politics,
at the time this convention was published; but
I no sooner saw it than I saw its delusive nature

its one-sidedness-and the whole disastrous consequences which were to result from it to the United States; and immediately wrote and published articles against it: of which the following is an extract:

"This is a specimen of the skill with which the diplomatic art deposits the seeds of a new contestation in the assumed settlement of an existing one, and gives unequal privileges in words ended perhaps by war, where no question at all of equality, and breeds a serious question, to be existed. Every word of the article for this joint occupation is a deception and a blunder-suggesting a belief for which there is no foundation, granting privileges for which there is no equivalent, and presenting ambiguities which require to be solved-peradventure by the sword. It speaks as if there was a mutuality of countries on the northwest coast to which the article was applicable, and a mutuality of benefits to accrue to the citizens of both governments by each occupying the country claimed by the other. Not so the fact. There is but one country in ques

tion, and that is our own ;-and of this the Brit- occupation convention of that year was promulish are to have equal possession with ourselves, gated. I wrote in advance; and long before the and we no possession of theirs. The Columbia is ours; Frazer's River is a British possession to ten years were out, it was all far more than which no American ever went, or ever will go. verified. Our traders were not only driven from The convention gives a joint right of occupying the mouth of the Columbia River, but from all the ports and harbors, and of navigating the its springs and branches;-not only from all the rivers of each other. This would imply that each Valley of the Columbia, but from the whole regovernment possessed in that quarter, ports, and harbors, and navigable rivers; and were about gion of the Rocky Mountains between 49 and to bring them into hotch-potch for mutual en- 42 degrees;—not only from all this mountain joyment. No such thing. There is but one port, region, but from the upper waters of all our far and that the mouth of the Columbia-but one distant rivers-the Missouri, the Yellow Stone, river, and that the Columbia itself: and both port and river our own. We give the equal use the Big Horn, the North Platte; and all their of these to the British, and receive nothing in re-mountain tributaries. And, by authentic reports turn. The convention says that the "claim" of neither party is to be prejudiced by the joint possession. This admits that Great Britain has a claim-a thing never admitted before by us, nor pretended by her. At Ghent she stated no claim, and could state none. Her ministers merely asked for the river as a boundary, as being the most convenient; and for the use of the harbor at its mouth, as being necessary to their ships and trade; but stated no claim. Our commissioners reported that they (the British commissioners) endeavored to lay a nest-egg' for a future pretension; which they failed to do at Ghent in 1815, but succeeded in laying in London in 1818; and before the ten years are out, a full grown fighting chicken will be hatched of that egg. There is no mutuality in any thing. We furnish the whole stake - country, river, harbor; and shall not even maintain the joint use of our own. We shall be driven out of it, and the British remain sole possessors. The fur trade is the object. It will fare with our traders on the Columbia under this convention as it fared with them on the Miami of the Lakes (and on the lakes themselves), under the British treaties of '94 and '96, which admitted British traders into our territories. Our traders will be driven out; and that by the fair competition of

made to our government, not less than five hundred of our citizens had been killed, nor less than five hundred thousand dollars worth of goods and furs robbed from them;-the British remaining the undisturbed possessors of all the Valley of the Columbia, acting as its masters, and building forts from the sea to the mountains. This was the effect of the first joint occupation treaty, and every body in the West saw its approaching termination with pleasure; but the false step which the government had made induced another. They had admitted a "claim" on the part of Great Britain, and given her the sole, under the name of a joint, possession; and now to get her out was the difficulty. It could not be done; and the United States agreed to a further continued "joint" occupation (as it was illusively called in the renewed convention), not for ten years more, but "indefinitely," determinable on one year's notice from either party to the other. The reason for this indefinite, and injurious continuance, was set forth in the preamble to the renewed convention (Mr. Gallatin now the sole United States negotiator); and recited that the two governments "being desirous to prevent, as far as possible, all hazard of misunderstanding, and with a view to give further time for maturing measures which shall have for their object a more definite settlement of the claims of each party to the said territory;" did thereupon agree to renew the joint occupation

trade, even if there should be no foul play. The difference between free and dutied goods, would work that result. The British traders pay no duties ours pay above an average of fifty per centum. No trade can stand against such odds. But the competition will not be fair. The savages will be incited to kill and rob our traders, and they will be expelled by violence, without waiting the slower, but equally certain process, of expulsion by underselling. The result then is, that we admit the British into our country, our river, and our harbor; and we get no admit-article of the convention of 1818, &c. Thus, we tance into theirs, for they have none-Frazer's had, by our diplomacy in 1818, and by the perRiver and New Caledonia being out of the ques-mitted non-execution of the Ghent treaty in the tion that they will become sole possessors of our river, our harbor, and our country; and at the end of the ten years will have an admitted 'claim' to our property, and the actual possession of it."

delivery of the post and country, hatched a question which threatened a "misunderstanding" between the two countries; and for maturing measures for the settlement of which indefinite

Thus I wrote in the year 1818, when the joint time was required-and granted-Great Britain