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view to their permanent residence. This was done by Gen. Washington—by Mr. Jefferson, by Mr. Madison, by Mr. Monroe, as can be shown from published documents; and probably by the elder Adams and his son.
To treaties, laws, usage,-every public and every private pledge, are to be added the dictates of reason and common sense, and the principles of immutable justice. All these stand on the side of the Cherokees. Still Georgia demands all the land, which lies within what are called her chartered limits. The nature of this demand will be examined hereafter.
Complaints of Georgia—The question between Georgia and the Cherokees, if no other party
were concerned-Claims on the ground of civilization- Answer of the Cherokees-Replication of Georgia-Doctrine of Vattel-It does not apply to this case-Vattel's opinion of the Puritans and Penn—The Cherokees not under the jurisdiction of Georgia.
It has appeared, in the preceding discussion, that the United States have entered into solemn engagements with the Cherokees, by which we are bound, as a people, to defend their title and their sovereignty, and to protect them from every species of encroachment and aggression. If this be not the obvious meaning of numerous and express stipulations, it will be impossible to frame articles in the English language, which shall express any meaning whatever.
But Georgia complains that the government of the United States transcended its powers in making these engagements, which are therefore to be considered null and void. The reader must bear in mind, that this complaint of Georgia is not of long standing. Indeed, I am not certain that the legislature has expressed it; but the leading men of that State, and some of the newspapers, are loud in making and repeating it. Till very recently, as was mentioned in my last, the authorities of Georgia have been urging the United States to make treaties with the Indians.
In order to come to a full understanding of this case, in all its bearings, let us inquire how the controversy would present itself, if the old thirteen States, after obtaining their independence, had never formed any system of confederation whatever, and each State were entirely, and in all respects, independent of every other State. The whole question at issue would then lie between Georgia and the Cherokees. Neither South Carolina, nor any other State, would have any right to interfere, however oppressively Georgia might conduct herself toward the Indians; unless, indeed, South Carolina, or some other State, had made a treaty with the Cherokees, of the nature of an alliance offensive and defensive. On this supposition, both the allies would have a right, by the laws of nations, to speak to Georgia and to be heard. But we will suppose, that the Cherokees had made no treaty with any community upon earth, and were, as to their mode of living, precisely in their present condition ; that is, peaceably engaged in agricultural
pursuits, and providing for their own families by the labor of their own hands.
In these circumstances, the people of Georgia ask the Cherokees to remove; who, in their turn, demand the reasons of so extraordinary a request. And here let me say, no good reasons can be given ; no reasons, which an honest man would not be ashamed to give, in any private transaction. But I will fairly state all the reasons, which have come to my knowledge, and would wish the reader to allow them every particle of weight to which they are entitled.
The Georgians say to the Cherokees: “ We are a civilized people ; you are a vagrant, hunting and savage people. By virtue of this distinction, the lands which you occupy, and which your fathers called their hunting grounds, belong in reality to us; and we must take possession. The writers on the law of nations bear us out in the demand.”
To such a statement the Cherokees might justly reply : “ We are not about to dispute as to your being a civilized people, though the manner of urging this demand of the houses and lands of your poor neighbors, argues neither great modesty nor benevolence. We do not profess to be learned in the law of nations ; but we read the Bible, and have learned there some plain principles of right and wrong. The Governor of the world gave us this country. We are in peaceable possession. We have never acknowledged any earthly lord, or sovereign. If our Creator has taken away our land and given it to you, we should like to see some proof of it, beside your own assertion. We have read in the book, which we understand you to acknowledge as the word of God, that“ to oppress a stranger wrongfully” is a mark of great national wickedness.
“ But we are not the sort of people that you take us to be. We are not vagrants, like some tribes of which we have heard ; nor were our fathers. They always had a fixed place of residence. - And as to our wandering about, we have not the time. We are busy with our crops; and many of us do not go so far as our nearest county court once a year, unless called out as jurymen. We do not hunt. Not a family within our bounds derives its subsistence from the chase. As to our being savages, we appeal to the white men, who travel on our turnpike roads, whether they receive any ill treatment. We have a legislature and a judiciary, and the judges of our supreme court are very rigid in punishing immorality. We have herds of cattle, farms and houses, mills and looms, clothing and furniture. We are not rich; but we contrive, by our industry, to provide against hunger and nakedness; and to lay up something comfortable for winter. Besides these things, we have schools and places of public worship. Judge ye, whether we are such a sort of people, as the writers on the laws of nations had in their minds, when they talked of vagrants, hunters, and savages."
To this the Georgians rejoin : “ But you had no business to betake yourselves to an agricultural life. It is a downright imposition upon us. This is the very thing that we complain of. The more you work on land, the more unwilling you are to leave it. Just so it is with your schools ; they only serve to attach you the more strongly to your country. It is all designed to keep us, the people of a sovereign and
independent State, from the enjoyment of our just rights. We must refer you to the law of nations again, which declares that populous countries, whose inhabitants live by agriculture, have a right to take the lands of hunters and apply them to a better use."
In answer to this legal argument, the Cherokees have only to say, that, even if Vattel had the power, by a flourish of his pen, to dispossess a nation of its patrimonial inheritance, the present case does not come within the limits which he has prescribed. Georgia is not populous. She has many millions of acres of unóccupied land. The Cherokees are not an “erratic people," to use the phrase of Vattel; so that neither part of the case answers to the description.
When Georgia shall have a hundred souls to the square mile; (and her soil is capable of sustaining a larger number than that ;) the Cherokees may have four times as many to the square mile as Georgia now contains.
If any one has the curiosity to read what Vattel has said on this subject, he will find it in sections 81 and 209; where he will also find a commendation of the manner in which the Puritan settlers of New England, and the great founder of Pennsylvania, obtained possession of the lands of the natives, viz: by the consent of the occupants, and not by a reliance on the charters of kings.
Thus stands the case on the law of nations; and if Vattel were admitted as absolute authority, and the Cherokees were left to their naked right, undefended by any compact, either with Georgia or the United States, they would have nothing to fear. No respectable lawyer, unless he is entirely deranged in his intellect, as a consequence of violent party feelings, will say that the doctrine of Vattel would take the lands of the Cherokees, and give them to Georgia.
But it is added, that the Cherokees are in the chartered limits of Georgia ; and it is triumphantly asked, “ Cannot Georgia govern her own territory? Is she not entitled to her own property ?" This statement of the case is a mere begging of the question. It is not admitted that the Cherokees are now, or ever were, in the State of Georgia, in any such sense as is implied by the confident tone here assumed. They have never acknowledged themselves to be in the State of Georgia. The laws of the United States, and the 11th article of the treaty of Holston, irresistibly imply, that Indian territory is not within the jurisdiction of any State, nor within the jurisdiction of any territorial district of the United States. It seems, however, that our national statute-book is of very light authority, when compared with the supposed conclusions of a philosophical writer, whose theories are produced as the arbiters of a people's destiny.
Let me ask here, whence did the Secretary of War derive the power of repealing an act of Congress? This is a plain question ; and the people of the United States would like to receive a plain answer. Whence did he derive the power to set aside existing treaties? The treaties and the laws assume, in the most unequivocal manner, that the Cherokees are not under the jurisdiction of Georgia; nor of any other State, nor of the United States; that citizens of the United States have no right to enter the Indian country, except in accordance with treaty stipulations; that it is a high misdemeanor, punishable by fine and imprisonment, for any such citizen to attempt to survey
Indian lands, or to mark trees upon them; and that the Indian title cannot be extinguished, except by the consent of the Indians, expressed by a regular treaty. Yet the Secretary of War seems never to have known that any such laws or treaties are in existence. Is he not aware of all this? or does he really think he has power to annul treaties and repeal laws, according to his sense of convenience and propriety ?
But this is a digression. "Having shown, as it seems to me, that Georgia can gain nothing by an appeal to the law of nations, I propose to inquire briefly, what support she can derive from the charter of the king of England.
Not even a king can grant what he does not possess—The people of one continent have no
right to dispossess the people of another continent- The proper uses of charters-Claims of the Pope, and of Queen Elizabeth-Charters of Georgia—Treaty of 1763 between England and Spain-Proclamation of George the Third-True meaning of protection.
The next inquiry will relate to the title conveyed to the first European settlers of Georgia, by the charter of the British crown. There are some people, even in our republican country, who appear to suppose that there is wonderful virtue in the grant of a king. But is it not manifest, on the bare statement of this subject, that not even a king can grant what he does not possess? And how is it possible, that he should possess vast tracts of country, which neither he, nor any European, had ever seen ; but which were in fact inhabited by numerous independent nations, of whose character, rights, or even existence, he knew nothing. Many grants to American colonists were bounded by lines running west from the Atlantic to the Pacific ocean. This was particularly the case with the charters of Georgia. Will it be seriously contended, that a royal grant of this kind conferred any rightful authority to dispossess of their territory the original occupants of the soil ? From such a principle it would follow, that all the aboriginal inhabitants might be lawfully driven into the ocean, and literally and utterly exterminated at once; for the European powers, by their proclamations and charters, divided the whole American continent among themselves. But who will dare to advocate the monstrous doctrine, that the people of a whole continent may be destroyed, for the benefit of the people of another continent ?
It is very easy to understand, that England, France, and Spain, would find it convenient to agree upon certain boundaries among themselves, so that the subjects of one European power might not come into collision with the subjects of another. All this was wise and proper ; and when it was accomplished, one of these powers might properly grant unoccupied lands to its subjects; not encroaching, however, upon the original rights of the natives, or the conventional rights of Europeans. For these two purposes, viz : The prevention of strife between new settlers, and the establishment of colonies upon territory not claimed, or the claims to which had been, or might be amicably extinguished-the charters of European governments were extremely valuable. Further than this they could not go ; and the idea that they could divest strangers of their rights is utterly preposterous.'
It is true that the Pope, immediately after the discovery of America, issued a bull, by which the kings of Spain were authorized to conquer and subdue all the inhabitants of the new world, and bring them into the pale of the Catholic church. About a hundred years afterwards, Queen Elizabeth, much in the spirit of popery, issued a proclamation, by which she directed her subjects to subdue the Pagans of this continent. But the people of Georgia will not build upon either of these foundations. None of the Protestant colonists professed to act upon such principles; and the first settlers from England, as a general thing, if not universally, obtained of the natives, by treaty, the privilege of commencing their settlements. Whenever they afterwards got possession of lands by conquest, they did so in consequence of what they considered to be unprovoked wars, to which the Indians were instigated, either by their own fears and jealousies, or by the intrigues of European nations. It is undeniable, that the English colonists, as a body, and for a hundred and fifty years, disavowed, in principle and practice, the doctrine that the aborigines might be driven from their lands because they were an uncivilized people, or because the whites were more powerful than they. I have not been able to find an assembly of legislators, anterior to December 1827, laying down the broad principle, that, in this case, power becomes right; a memorable declaration, which was made by the legislature of Georgia, in one of the paroxysms of the present controversy.
Let it be fixed in the mind, then, that the charters of British kings, however expressed, or whatever might seem to be implied in them, could not divest the Indians of their rights.
The charters of Georgia are cited in the famous case of Fletcher vs. Peck, (6 Cranch, p. 87,) and it may be presumed, that all the parts which have a bearing on this investigation, are there copied. The first charter was granted by Charles the Second, one hundred and sixty three years ago, and embraced all that part of North America which lies between 29 and 36.degrees of north latitude ; that is, a tract of country more than five hundred English miles broad, extending from the Atlantic ocean to the Pacific. It granted the territory, " together with all ports, harbors, bays, rivers, soil, land, fields, 'woods, lakes, and other rights and privileges therein named.” So far as appears, the charter said nothing of the native inhabitants. Whether it said any thing in regard to them, or not, is immaterial to the case now in hand : for as I have already observed, no man will undertake to maintain the proposition, that the unknown tribes and nations between the Atlantic and the Mississippi, and thence westward to Mexico and the Pacific, could have their rights and property justly taken from them by the signature of the British king, in his palace of Whitehall.
The rights derived from this charter were surrendered to the British crown in the year 1729. Three years afterwards, George the Second incorporated James Oglethorpe and others, as a charitable society, which he styled “The Trustees for establishing the Colony of Georgia, in America, with perpetual succession.” To this corporation he