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or denied, the doubt, or denial, has never come to my knowledge. The treaty of Hopewell was negotiated by commissioners, all of whom, if I mistake not, resided at the south; and I have never heard that any remonstrance was offered by either of the States in the neighborhood of the Cherokees, on the ground that the Old Congress had no power to agree upon a line of demarkation with the Indians. A line was fixed, in the 4th article, securing to the Indians the undisturbed possession of a territory, which appeared on the map to be a part of Virginia, the two Carolinas, and Georgia; the States of Kentucky, Tennessee, Alaba and Mississippi not having then been formed. If this treaty now stood alone, and the relations of the parties had not been changed by subsequent events, no white man could have attempted to settle on any of the lands within the Cherokee boundary,' even down to the present day, however he might have been sustained in his attempt by the constituted authorities of any or all of the States situated in the neighborhood of the Cherokees. Against such an attempt, the Indians would have been protected by the faith of the Confederated Republic. This remark is made simply for the sake of drawing the attention of the reader to the inviolability of the Indian territory, as strongly implied in the fifth article.

From the phraseology adopted in two or three passages of the treaty, the conclusion seems to be drawn by the present Secretary of of War, that treaties with the Cherokees are not binding upon the whites; at least, not to the extent of their literal and proper meaning. The argument stands in this form. The Cherokees fought on the side of the British, in the war of independence. The British were beaten; and therefore the Cherokees were a conquered people. To a conquered people the United States gave peace; and therefore the United States are not bound by the very articles which they dictated. They allotted a boundary to the Cherokees; and therefore the United States are not under obligation to respect the boundary, which they themselves allotted. To refute such conclusions, established by such a process of reasoning, is unnecessary. The very statement of the argument is enough.

It is true, that the commissioners of the United States, in several treaties made about the same time, express themselves rather haughtily, when they declare that they give peace to the Indians. The fact is well known, however, that the whites were much more desirous of peace than the Cherokees were. The inhabitants of our frontier settlements were in constant dread of incursions from the natives of the forest. Impoverished as our country was by a seven years' war, it would have been impossible to have scoured the vast wilderness from the settled country to the Mississippi. Any force which could then have been sent, would have fared worse than the army of St. Clair did, in a far less dangerous field, nine years afterwards.

The Cherokees could not have set up for nice verbal critics of the English language, as they did not understand a word of it. It is questionable whether one Indian interpreter in ten would make any difference between give peace, and make peace, or agree to a peace. The Cherokees doubtless understood, that the United States were desirous that there should be an end of fighting; but it is incredible that they should have thought there was lurking, under the phrase of

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giving peace, any such mysterious implication of superiority on the part of the whites, as should ultimately exonerate the superior from all obligation to keep faith with his inferior. Least of all could they have supposed, that there was a latent power in this phrase, which should destroy the validity of all future compacts between the same parties, in not one of which the insidious phrase is to be found.

The phrase to give peace was a favorite one with the Romans, and was doubtless copied from them. I think Bonaparte used it also on some occasions. But neither the Romans, nor Bonaparte, so far as I know, ever soberly contended that a treaty was to be interpreted, otherwise than according to the obvious and proper meaning of the words, merely because one of the parties assumed rather a haughty air, in some few instances of the phraseology.

As to the word allot, it is said to have been commonly used in the southern States as synonymous with fix, or establish. To say that a boundary was allotted to the Cherokees, was no more than to say that a boundary was established, or agreed upon; for the boundary is not said to have been allotted by the United States. It may have been, indeed it must have been, as the whole scope of the treaty shows, allotted by the consent of both parties.*

No. IV.

Apparent inferiority of the United States to the Chickasaws-The Cherokees under the protection of the United States-Hunting grounds a good designation of land-Proofs of equality of rights in the parties-Treaty of Holston, or second compact with the Cherokees, 1791-Title and preamble-The manner in which this treaty was negotiated and ratified.

If our statesmen are about to interpret treaties, on the principle of favoring the party which assumed a superiority, they must take care lest there should be some very unexpected consequences.

In a treaty formed between the United States and the Chickasaws, in the year 1801, and ratified by President Jefferson and the Senate, the first article commences thus: 66 The Mingo, principal men, and warriors of the Chickasaw nation of Indians give leave and permission to the President of the United States of America to lay out, open, and make a convenient wagon road through their land." After stating that the road "shall be a highway for the citizens of the United States and the Chickasaws," and that the Chickasaws shall appoint two discreet men as guides,' who shall be paid by the United States for their services, the article closes thus: "Provided always, That the necessary ferries over the water-courses, crossed by the said road, shall be held and deemed to be the property of the Chickasaw nation."

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The second article makes a pecuniary compensation to the Chickasaws for "their respectful and friendly attention to the President of

*The correctness of this criticism on the word allot is abundantly proved, by a passage of an act of Congress, which was discovered after this number was written. The passage makes the meaning of lands allotted to the Indians to be synonymous with lands secured to the Indians.

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the United States of America, and to the request made to them in his name, to permit the opening of the road."

Who is the superior here? Translate these passages faithfully, and send them to the Emperor of China, and let him lay the matter before his counsellors, who never heard of the United States. They will say, in a moment, that the Mingo of the Chickasaws is a monarch, who, in his great condescension, has granted the humble request of the President, on the condition that the petitioner shall make a pecuniary compensation, and pay tribute, under the name of ferriage, to the Chickasaws, as often any of the President's people pass through the territory of the king of the Chickasaws.

According to the recent code of national morality, what is to be the operation of this Chickasaw treaty? Most undoubtedly, in the first place, the Chickasaws may close up the road, the stipulations of the treaty to the contrary notwithstanding. Indeed, they must have exercised great forbearance already, as they have permitted the road to be open twenty-seven years, solely out of regard to this treaty; just as Georgia has waited twenty-seven years before taking possession of the Cherokee territory, out of complaisance to the engagements of the United States, which it would seem, are to be discarded as of no validity.

In the second place, none of the treaties made subsequently by the Chickasaws are binding upon them; and therefore they may reclaim all the lands which they have ceded to the United States. Of course, the inhabitants of West Tennessee, who now live on fertile lands, which were ceded to the whites by the Chickasaws, must immediately remove, if the Chickasaws require it. The reason is plain. No superior can be bound to an inferior; but that the Chickasaws are the superiors, is evident, as the Secretary of War says in the other case, because the emphatic language" of the treaty cannot be mis

taken."

But it may be said that there are other indications in the treaty of Hopewell, that the United States assumed a superiority, beside the phraseology, in the instances above cited. The question is not, be it remembered, whether the United States, at the time of the treaty of Hopewell, were a more powerful nation than the Cherokees; but whether, being a more powerful nation, they are on that account exempted from the obligation of treaties.

The Cherokees did, undoubtedly, place themselves under the protection of the United States, in the third article. They had formerly been under the protection of the king of Great Britain; but his power had failed them. It was natural that they should accept proffers of protection from some other quarter. This is not a new thing in the world. From the time of Abraham to the present day, there have been alliances, offensive and defensive, confederacies, and smaller states relying for protection upon the plighted faith of larger ones. But what

is implied in the very idea of protection? Is it not, that the party protected is to have all its rights secure, not only against others, but against the protector also? If some rights are yielded as the price of protection, is it not that other rights may be preserved with the greater care and certainty ?

It is said that the United States were to have the sole and exclusive

right of regulating trade with the Cherokees. True: but this was expressly declared to be for the benefit of the Indians, and to save them from injustice and oppression. These laudable objects were gained to a considerable extent; and, if the laws of the United States on this subject had been always carried into full execution, the condition of the Indians would have been rapidly improved, as a consequence of this very stipulation.

It is said that the lands of the Indians are called their "hunting grounds;" and that they could not, therefore, have a permanent interest in lands thus described. But how does this appear? The treaty has no limitation of time, nor is there the slightest intimation that it was to become weaker by the lapse of years. As the Indians gained their principal support by hunting, it was natural to designate their country by the phrase "hunting grounds;" and this is as good a designation, in regard to the validity of a title, as any other phrase that could be chosen. It contains the idea of property, and has superadded the idea of constant use.

But to put the matter beyond all question at once, let me refer to two treaties made at the same place, by three out of four of the same American Commissioners, within six weeks of the date of the Cherokee treaty. In both these documents, "lands" are allotted to the Choctaws and Chickasaws "to live and hunt on." These lands were secured to the Indians, therefore, sò long as any of the race survived upon earth.

Having been occupied some time, in considering the indications of superiority, let us look a little at the proofs of equality. I leave to a future occasion some remarks upon the words treaty, peace, contracting parties, &c. which carry with them sundry most important significations.

The two first articles are strictly reciprocal. Each party is to restore prisoners of war. The articles would be proper, in a treaty between France and England.

The 6th and 7th articles provide, that crimes committed against individuals of one party, by individuals of the other, shall be punished in the same manner.

The 8th article has the remarkable provision, that no retaliatory measures shall be adopted by either party, unless this treaty shall be violated; and even then, before such measures can be adopted, justice must have been demanded by the complaining party and refused by the other, and "a declaration of hostilities" must have been made. Thus it is admitted, as well as in the two first articles, that the Cherokees have the same right to declare war, as other powers of the earth have. To declare war and make peace are enumerated, in our own declaration of independence, as among the highest attributes of national sovereignty. The other attributes there enumerated are to form alliances and to establish commerce. It is a curious fact, that every one of these attributes was exercised by the Cherokees, in the negotiation of the treaty of Hopewell.

The present doctrine is, that the Indians were regarded as a sort of non-descript tenants at will, enjoying by permission some imperfect privilege of hunting on grounds which really belonged to the United States. But who ever heard of tenants at will being solemnly admitted

to have the right of declaring war upon their landlords? These tenants were also strangely allowed to possess the right of punishing, according to their pleasure, any of their landlords, who should "attempt to settle" upon any lands, which, it is now contended, were then the absolute property of said landlords. But I shall have other occasion of bringing this interpretation to the test.

After the treaty of Hopewell, white settlers pushed forward into the wilderness in the neighborhood of the Indians; difficulties arose; blood was shed; war was declared; the new settlements in that quarter were in a state of great alarm and anxiety.

In the mean time, the new constitution had gone into operation. The treaty-making power, which had been exercised by the Old Congress, was now confided to the President and Senate of the United States. Gen. Washington, who always pursued a magnanimous policy towards the Indians, as well as towards other nations, took the proper measures to establish a peace. On the 2d of July, 1791, the treaty of Holston was made; and it was afterwards ratified by President Washington and the Senate. The title is in these words:

"A treaty of peace and friendship, made and concluded between the President of the United States of America, on the part and behalf of the said States, and the undersigned chiefs and warriors of the Cherokee nation, on the part and behalf of the said nation."

PREAMBLE.

"The parties being desirous of establishing permanent peace and friendship between the United States and the said Cherokee nation, and the citizens and members thereof, and to remove the causes of war by ascertaining their limits, and making other necessary, just, and friendly arrangements;-the President of the United States, by William Blount, Governor of the territory of the United States south of the River Ohio, and superintendent of Indian affairs for the Southern District, who is vested with full powers for these purposes, by and with the advice and consent of the Senate of the United States; and the Cherokee nation, by the undersigned chiefs and warriors representing the said nation, have agreed to the following articles, namely:"

I have thought it best to cite the whole title and preamble, that the reader may see in what manner the parties to this instrument saw fit to describe themselves; or, more properly, in what manner the plenipotentiary of the United States, with the President and Senate, saw fit to describe these parties: for it will not be pretended that the Cherokees reduced the treaty to writing. This is the second treaty, which was made with Indians, by the government of the United States, after the adoption of the federal constitution. The first was made with the Creek nation; and was executed at New York, August 7th, 1790, by Henry Knox, then Secretary of War, as the commissioner of the United States, and twenty-four Creek chiefs, in behalf of their nation. In comparing these two treaties, it is found, that the title and preamble of the Cherokee treaty are an exact transcript from the other, except that "Cherokee" is inserted instead of "Creek," and the word "kings," before "chiefs and warriors," is omitted.

All the principal articles of the two treaties are of the same tenor, and expressed by the same phraseology. As Governor Blount made the Cherokee treaty after the model of the Creek treaty, there can be little doubt that he was directed to do so, by the head of the War Department. It is morally certain, that the Creek treaty was drawn up,

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