No. VI.

Treaty of Holston continued-Articles of boundary and cession-The nature of a cessionGrant of a road-Regulation of trade-Article of guaranty-Importance of this articleNature of a guaranty-Instance of Bonaparte and Switzerland.

I proceed in the consideration of the treaty of Holston. The third article provides, that "the Cherokee nation shall deliver" up "all persons who are now prisoners, captured by them from any part of the United States ;" and "the United States shall restore to the Cherokees all prisoners now in captivity, whom the citizens of the United States have captured from them." A period of about nine months was allowed for a compliance with this article. Here the most entire reciprocity exists, precisely as it is found, usually, in treaties of peace between European powers.

"ART. 4. The boundary between the citizens of the United States and the Cherokee nation is and shall be as follows:" [Here the boundary is described, which is, in part, the same with that in the treaty of Hopewell; but the Cherokee country on the northeast is considerably curtailed. Here had been the seat of war during the interval between the two treaties. A tract, which is now the central part of Tennessee, and which probably contains a population of more than 200,000 souls, was still retained by the Cherokees.]

The article provides that the boundary shall be ascertained and marked, and then proceeds thus:

"And, in order to extinguish forever all claims of the Cherokee nation, or any part thereof, to any of the land lying to the right of the line above described, beginning as aforesaid, at the Currahee mountain, it is hereby agreed that, in addition to the consideration heretofore made for the said land, the United States will cause certain valuable goods to be immediately delivered to the undersigned chiefs and warriors, for the use of their nation; and the said United States will also cause the sum of $1,000 to be paid annually to the said Cherokee nation. And the undersigned chiefs and warriors do hereby, for themselves and the Cherokee nation, their heirs and descendants, for the consideration above mentioned, release, quit claim, relinquish, and cede all the land to the right of the line described, and beginning as aforesaid."

One object of the treaty was declared in the preamble to be to "ascertain the limits of the Cherokees." In the article just quoted, the limits are defined on the north and east; that is, on those sides where the white settlers were approaching the borders of the Cherokee country. On the south and west the Cherokees were limited by the country of their Creek and Chickasaw neighbors; so that there would have been no propriety in even mentioning the subject here.

At the close of the article, the Cherokee chiefs, "for themselves and the whole Cherokee nation, their heirs and descendants, release, quit claim, relinquish, and cede" a certain portion of their country; that very country which had been called "hunting grounds" in the treaty of Hopewell, and of which, as it is now pretended, the Cherokees were tenants at will. Was it ever before heard, that a tenant at will released and ceded land to the rightful owner?

The phraseology here used not only implies that the word allotted, in the previous treaty, meant no more than that the boundary of the Cherokee country was fixed or defined, by the article in which it was

used: but, it implies also, in the strongest manner, that the sovereign power of the Cherokees over their territory was unquestionable. The word "cede" is the most common and operative word, in all transfers of territory from one nation to another. Unless explained and limited, it conveys the right of sovereignty. Thus, in cessions of small portions of land to the general government, for navy yards, &c. the several States are in the practice of reserving certain rights; such as the right of entering to apprehend criminals, &c. implying that the word cede would, ex vi termini, convey to the general government all the rights of sovereignty. But no party can convey what it does not possess; and it would have been absurd for the United States to ask and accept a cession, without admitting that the Cherokees had power to make one. This article expressly declares that the agreement was entered into, the cessions made, and the compensation given" to extinguish forever all claims of the Cherokee nation" to the lands thus ceded. The Cherokees are acknowledged, then, to have had claims, not cancelled by war,-not swept away by the superior force of the United States,-never before surrendered: claims, which the solemn sanction of treaties was deemed necessary to extinguish.

“ART. 5. It is stipulated and agreed that the citizens and inhabitants of the United States shall have a free and unmolested use of a road from Washington district to Mero district, and the navigation of the Tennessee river."

This is another very curious provision, if we are to believe that the Cherokees are merely tenants at will, and the people of the United States the rightful owners. But upon the only tenable ground, viz. that the Cherokees had a perfect title to the soil, with undoubted rights of sovereignty over it, the article is intelligible and reasonable. The people of the United States wanted a free passage through a particular part of the Cherokee territory; and, as the parties now sustained amicable relations, such a passage was granted by a treaty stipulation.

"ART. 6. It is agreed on the part of the Cherokees, that the United States shall have the sole and exclusive right of regulating their trade."

By the constitution of the United States it had been provided, that Congress should have power to regulate commerce "with the Indian tribes." This policy had been pursued in the treaty of Hopewell, and was doubtless chosen wisely, and with a view to benefit the IndiIt was not binding upon them, however, till they voluntarily consented to it.

ans.

"ART. 7. The United States solemnly guaranty to the Cherokee nation all their lands not hereby ceded."

This is the most important article in the treaty. The Cherokees had yielded some of their natural rights. They had agreed not to treat with any foreign power. They had committed the regulation of their trade to the United States. They had admitted the United States to participate in the navigation of the Tennessee; and had granted a free passage through a certain part of their country to the citizens of the United States. They had ceded a portion of their territory. On the other hand, the United States engaged to protect the Cherokees, to promote their civilization, as will hereafter be seen, and es

pecially, to guaranty the integrity and inviolability of their territory. In a world full of outrage, fraud, and violence, it is a great advantage for a weak state to obtain the solemn guaranty of a powerful neighbor, that its rights and sovereignty shall be safe. All this is implied by a guaranty. The United States solemnly engaged to preserve and defend the Cherokees against all foreign powers, (a colony of Spain being then in the neighborhood,) against the States of Georgia and North Carolina, against the United Statas, in their federative capacity, and against all whites who should threaten to commit aggressions upon the Cherokees.

The word guaranty can mean no less, unless limited by the subject or context. If Bonaparte guarantees the integrity of Switzerland, he engages to defend and preserve Switzerland from aggression and invasion, whether the danger arises from Austria, Prussia, Holland, or even France itself. It is the chosen and appropriate word to express the utmost security, which can be pledged to one party by the power and good faith of another.

Upon the guaranty of the United States the Cherokees have relied, with unshaken constancy, since the year 1791. Within a few months their confidence has been shaken; and they are now in a state of great solicitude and anxiety. It remains to be seen whether a treaty will bind the United States to a weak and dependent ally, or whether force is to be the only arbiter in the case.

No. VII.

Treaty of Holston continued-Further remarks on the guaranty-Statement of parallel cases-Whether the world can be made to receive the modern interpretation-The Cherokees would never have made a peace without this guaranty-We urged the Cherokees to a peace, and called them brothers-Abstract of remaining articles-Delivery, and punishment of criminals-Proffered aid in civilization.

In the article of guaranty, which was the subject of discussion in my last number, the country of the Cherokee nation is called "their lands;" an expression utterly at variance with the notion that the lands belonged to the whites. Indeed, the recent interpretation of our compacts with the Indians, does great violence to the ordinary rules of language. The seventh article is short, and will bear repeating.It reads thus: "THE UNITED STATES SOLEMNLY GUARANTY TO THE CHEROKEE NATION ALL THEIR LANDS NOT HEREBY CEDED.". This seems to be, upon the face of it, a plain sentence. A man of moderate information would at least suppose himself to understand it. He would not suspect that there was a secret, recondite meaning, altogether incompatible with the apparent one. But it seems that there was such a meaning. How it was discovered, or by whom, the public are not informed. The present Secretary of War, however, has lately adopted it, and urged it upon the Cherokees as decisive of the whole question at issue. The true meaning of the article, then, as explained by a public functionary thirty eight years. after it was made, would have been accurately expressed as follows;

"The United States solemnly declare, that the Cherokee Indians have no right nor title to any lands within the territory of the United States, us fixed by the treaty of 1783; but the United States permit the Cherokees to remain on the lands of North Carolina, South Carolina, and Georgia, (south and west of the above described boundary,). until the said States shall take possession of the same."!

This is the guaranty of the Cherokee country! It is certainly the interpretation of the Secretary of War. How would other treaties bear a similar explanation? The newspapers tell us, that Russia, Great Britain, and France, have engaged to guaranty the territory of Greece within certain limits. Does this mean that the Greeks, are to be permitted to live, for the present, on lands which belong to the Turks; but that the Turks, whenever they please, may take possession of their own lands, and massacre the Greeks?

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The Federal Constitution says, (Art. IV. sec. 4,) The United States shall guaranty to every State in this Union, a Republican form of government;" the true meaning of which may hereafter appear to be as follows: "The United States shall permit each State to have a Republican form of government for the present; and until a monarchical form of government shall be imposed upon the people thereof."

The true meaning of an instrument is that which was in the minds of the parties, at the time of signing. Can the Secretary of War prove that General Washington understood the treaty of Holston, according to the explanation now given? Can he prove that the Cherokee chiefs and warriors understood it in the same manner? Surely he would not have it signed and ratified in one sense, and carried into effect in a totally different and opposite sense. He must therefore suppose, that the Cherokees intended to admit that they had no right to their own lands,' and that they stood ready to remove whenever requested. But he must allow, that, if this were the meaning of the parties, it was very strangely expressed; and however sincerely he may entertain the newly discovered opinion as to the meaning, he may still find it extremely difficult to convince the world that he is right.

Will the Secretary of War guaranty his country against any loss of character, as a consequence of adopting his interpretation? Whom will he get for sponsors and compurgators? Can he engage that impartial and disinterested men will be satisfied? And if they will not, or if there is danger that they will not, should he not distrust his own conclusions? And may he not have arrived at them without sufficient examination?..

Not to dwell longer on the words of the article, is it credible that the Cherokees would have signed a treaty, in the year 1791, if they had been plainly told that the United States did not acknowledge them as a separate people; that they had no rights, nor any lands; that they lived upon their ancient hunting grounds by the permission of the whites; and that, whenever the whites required it, they must remove beyond the Mississippi? At that very moment the Cherokees felt strong. They and the neighboring tribes could collect a formidable force. They had an illimitable forest in which to range, with many parts of which they were perfectly acquainted. They could have driven in the white settlers, on a line of more than 500 miles in extent. Many a Braddock's field, many a St. Clair's defeat, many a battle of Tippa

canoe, would have been witnessed, before they could have been expelled from their swamps and their mountains, their open woods and their impervious cane-brakes, and fairly dislodged from the wide regions on this side of the Mississippi.

The people of the United States wanted a peace. We invited the Cherokees to lay down their arms. We spoke kindly to them; called them our brothers, at the beginning of every sentence; treated them as equals; spoke largely of our future kindness and friendship; and shall we now (I speak to the People of the United States at large)— shall we now hesitate to acknowledge the full force of the obligations by which we bound ourselves? Having, in the days of our weakness, and at our own instance, obtained a peace for our own benefit, shall we now, merely because no human power can oppose an array of bayonets, set aside the fundamental article, without which no treaty could ever have been made?

But I must proceed with other parts of the compact.

ART. 8. If any person, not an Indian, shall settle on any of the Cherokees' lands, he shall forfeit the protection of the United States, and the Cherokees may punish him.

ART. 9. No citizen of the United States shall attempt to hunt on the lands of the Cherokees ; nor shall any such citizen go into the Cherokee country without a passport from the governor of a State, or Territory, or such other person as the President of the United States may authorize to grant the same.

ARTS. 10 and 11. Reciprocal engagements, in regard to the delivery and punishment of criminals.

ART. 12. No retaliation or reprisal, in case of injury, till after satisfaction shall have been demanded and refused.

ART. 13. The Cherokees to give notice of any hostile designs.

ART. 14. "That the Cherokee Nation may be led to a greater degree of civilization, and to become herdsmen and cultivators, instead of remaining in a state of hunters, the United States will, from time to time, furnish, gratuitously, the said nation with useful implements of husbandry; and further to assist the said nation inso desirable a pursuit, and at the same time to establish a certain mode of communication, the United States will send such and so many persons to reside in said nation, as they may judge proper, not exceeding four in number, who shall qualify themselves to act as interpreters. These persons shall have lands assigned by the Cherokees for cultivation for themselves and their successors in office; but they shall be precluded exercising any kind of traffic.".

ART. 15. All animosities to cease, and the treaty to be executed in good faith. ART. 16. The treaty to take effect, as soon as ratified, by the President of the United States, with the advice and consent of the Senate.

The Treaty was signed, in behalf of the United States, by William Blount, governor of the territory south of the Ohio, and by forty one Cherokee chiefs and warriors in behalf of the Cherokee nation; and was afterwards duly ratified by the President and Senate.

A few remarks seem to be demanded on several of these articles. In the ninth, the country of the Cherokees is again called their "lands," as it had been twice before; and the citizens of the United States are strictly prohibited from attempting to hunt on said lands; nor could any of our people even enter the country without a passport. The tenth article, which is barely mentioned in the preceding abstract, provides, that "if any Cherokee Indian, or Indians, or person residing among them, or who shall take refuge in their nation, shall steal a horse from, or commit a robbery, or murder, or other capital crime on any citizens or inhabitants of the United States, the Chero