« ZurückWeiter »
granted all the lands lying between the rivers Savannah and Altamaha, and between parallel lines, drawn westward to the Pacific, from the heads of said rivers respectively, “ with all the soils, grounds, havens, bays, mines, minerals, woods, rivers, waters, fishings, jurisdictions, franchises, privileges, and preeminences, within the said territories."
In the year 1752, this charter also was surrendered to the crown. A royal government was instituted in 1754, over the colony of Georgia, which was bounded in the same manner as the tract granted to the corporation above described. This tract embraced all the northern part of the present States of Georgia, Alabama, and Mississippi, and extended westward to the South Seas, as the Pacific Ocean was then called.
By the peace of 1763, it was agreed between England and Spain, that the Mississippi should be the western boundary of the British colonies. The same year a proclamation was issued by George the Third, which, among other things, annexed to the colony of Georgia, what is now the southern part of the States of Georgia, Alabama, and Mississippi..
The same proclamation contains the following passage : “ That it is our royal will and pleasure for the present, as aforesaid, to reserve under our sovereignty, protection, and dominion, for the use of the said Indians, all the land and territories not included within the limits of our said three new governments, or within the limits of the territory granted to the Hudson's Bay Company, as also all the land and territories lying to the westward of the sources of the rivers, which fall into the sea from the west and northwest as aforesaid ; and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements whatever, or taking possession of any of the lands above reserved, without our special leave and license for that purpose first obtained.”
The lands now in dispute between Georgia and the Cherokees are within the description, which is printed in italics; and were therefore reserved “ for the use of the Indians.” Thus matters remained, so far as the British government was concerned, till the close of the revolutionary war. By the peace of 1783, the colony of Georgia was acknowledged to be one of the independent States of America. There can be no doubt, that the State of Georgia thenceforward might exer. cise, within her proper limits, all that authority, in regard to the Indians, or any other subject, which either the colony of Georgia, or the British government might have rightfully exercised within the same limits. It is to be understood, however, that any modifications of her power, which Georgia afterwards made, either by entering into the old confederation, or by adopting the present national constitution, are to be duly regarded.
There are no means within my reach, by which the claims of the British government, in regard to the possessions of the Indians, can be accurately known. Nor is it of any consequence that they should be known. Unless they were founded in reason and justice, they could be of no validity ; and in regard to what is founded in reason and justice, impartial, disinterested, intelligent men of the present day, can form as correct an opinion, as could be formed by the kings of England.
It is admitted on all hands, and is even strenuously contended for by the people of Georgia, that the Indians were considered by the British crown, as under its protection. From this claim of the crown, it is inferred, that the Indians held their lands by permission of the crown. Now I humbly conceive, that here is too large a leap from the premises to the conclusion. There is a distinction between affording protection and usurping unlimited control over rights and property. How many small states remained for hundreds of years under the protection of the Roman republic? The greatest men in that republic were always proud of their good faith to their dependent allies, so long as these allies remained faithful. The right of retaining their territory, laws, customs, and habits of living was not invaded. How many small states are there in Europe, at this moment, possessing a limited sovereignty, and remaining under the protection of larger states, yet exercising the right of administering their own government, in regard to many essential things, as truly as the State of Massachusetts, or South Carolina, administers its own government?
Would it not be safer to infer, that the Indians were claimed to be under the protection of Great Britain because they had important rights, which needed protection ? rights which were in danger from the encroachments of other European nations, the avarice and fraud of speculators, and the hostile machinations of neighboring tribes ? A guardian is the acknowledged protector of his ward. Is it sound law, therefore, that the guardian is the sole owner of his ward's property ; and may set the helpless orphan adrift in the world? The father is the proteetor of his children : may he, therefore, oppress them, dishearten them, and thus prepare them to become outcasts and vagabonds ? A husband is the protector of his wife : may he, therefore, · abuse her, repudiate her without cause, aud drive her from her own house and her patrimonial inheritance ?
The people of the United States may conclude, therefore, without the least danger of mistake, that the rights of the Cherokees and Creeks were not taken from them by a royal proclamation. The thing is impossible in itself; and the proclamation does not assert, nor imply, that the rights of the Indians were to be disregarded.
No. XVII. Controversies about unappropriated lands—Indian title always respected-First intercourse of
Oglethorpe with Indians, 1733–Treaty of Savannah-Abstract of il-Ratified in London-Treaties written by the English-Visit and speech of Tomochichi_Reply of George II.-Treaty with the governor of St. Augustine.
At the close of the revolutionary war, great controversies arose, in regard to the disposal which should be made of the unappropriated lands lying within the limits of the United States, as defined by the treaty of 1783. Lands were considered as unappropriated, if they had not been parcelled out to the whites. If Indians were in possession, and living on amicable terms with their white neighbors, it was taken for granted that the Indian title must be lawfully extinguished, before the whites could be justified in taking possession; and such an extinguishment of Indian title could be obtained by the consent of the original owners, but in no other way.
Some of the States contended that the vast tracts lying to the west and northwest of the portion inhabited by whites, should be made a common fund, and held for the common benefit ; as the whole had been secured by the common privations and sacrifices. Other States were determined to retain all the territory, which fell within the limits described in their original charters. It is not my intention to enter at all into a dispute which was put at rest, as a practical matter, by various conventional arrangements, made between particular States and the United States, from 1781 to 1802. My object in adverting to the subject here is, that the reader may be aware of the existence of such a controversy. Virginia set an example of public spirit, by relinquishing to the United States her claim to the vast tract northwest of the river Ohio ; and it was contended that Georgia ought to relinquish all claim to the lands on her western waters. These relinquishments, actual or contemplated, were not considered as affecting, or as likely to affect, the Indian title. Every cession was subject to this title. In other words, every party was considered as bound to deal justly with the Indians, and to recognize their territorial rights.
On the supposition that Georgia had, at the conclusion of the American war, an unquestionable right, on every ground of law and honor, to all the land within the limits of the king's charter, subject only to the Indian title, it would remain to inquire whether her jurisdiction could be fairly and properly extended over the original inhabitants, or their country. To me it seems perfectly clear, that Georgia could have claimed no juristliction at all over the Creeks or Cherokees, or over their territory. They were, respectively, a separate people, living under their own laws, upon their own soil. No argument, but that of force, could have been adduced, in favor of taking away their possessions; and, if they had been able to defend themselves, no argument would ever have been thought of. Could the Cherokees now bring into the field a formidable array of bayonets, all these arguments about the hunter state would be suffered to repose in quiet, with other lumber of the schools. The more savage the Indians were, the less inclined the people of Georgia would be to have a quarrel with them; and the more readily would all their territorial and national rights be acknowledged. .
The claims of Georgia, which are set forth as being supported by the law of nations and the king's charter, have been examined; and, unless I am mistaken, have been shown to be altogether groundless; especially when compared with the strong title of immemorial possession. But there is no need of resting the case here, however safe it would be here to rest it.
I therefore proceed to show, that Georgia has, during her whole history, till within a very few years, admitted the national character and territorial rights of the Creeks and Cherokees; and that she is bound, by numerous public acts performed by her, in the very capacity of which she is most proud and jealous, (that of a sovereign and independent State,) for ever to admit and respect the rights of the Cherokees, unless these rights shall hereafter be voluntarily surrendered.
In the year 1733, James Oglethorpe commenced a settlement on the site where Savannah now stands. In his first letter to the corporation, whose agent he was, dated February 10th, he says : “ A little
Indian nation, the only one within fifty miles, is not only in amity, but desirous to be subjects to his majesty king George, to have lands given them among us, and to breed their children at our schools. Their chief and his beloved man, who is the second man in the nation, desire to be instructed in the Christian religion.” It appears from McCall's History of Georgia, (on which I shall rely as authority for several succeeding statements,) that this little tribe of Indians, which is now extinct, must have received a splendid account of the power and benevolence of the British king. How much they understood of what was implied in becoming his subjects, cannot be known. They were doubtless informed, that the settlers were intending to live in a compact manner, and to have schools and preaching; and that the Indians would act wisely, if they would be friends to the English, and live in the same manner. They might naturally, therefore, have been pleased with the notion of taking farms for cultivation, side by side, with the new settlers. This must have been the meaning of their having lands given them among the settlers, for the old English doctrine of seisin in fee, and of the fee being in the King, was too metaphysical an idea to have found a lodgment in their unsophisticated heads. Indeed, it is quite ridiculous to embarrass this question with the abstract terms, and nice distinctions, which had their origin in the feudal tenures of Europe. The whole philosophy, and the whole morality of the Indian title, as opposed to the encroachments of the European settlers, might be thus expressed by the Indians: “ These lands are ours. We had them from our fathers. They are not yours. Neither you, nor your fathers, nor your king, ever had them. When we consent to your taking them, they will be yours. Till then, they belong to us.”
If the little tribe of Indians, who had the possession of the lands at the mouth of Savannah River, consented to the settlement of Oglethorpe, and if their consent was obtained fairly and honorably, (which I am not inclined to question,) then the founder of the State of Georgia had a rightful possession. The lawfulness of his possession, as against the Indians, was founded altogether upon their consent : while, in regard to the whites of South Carolina, he might justly plead the king's charter.
“ But as this tribe was inconsiderable," says the historian, “ Oglethorpe judged it expedient to have the other tribes also, to join with them in the treaty.” So it seems, that Oglethorpe supposed the Indians to be capable of making a treaty, as all the early settlers had done, from the discovery of America to that day, and as all his successors continued to do, till this same Georgia controversy has, within two years past, led to the discovery, that Indians are not capable of being treated with. It is morally certain, that the colony of Oglethorpe would have been of short duration, if he had told the Indians, that he, acting under the king of Great Britain, was the owner of all the lands from Savannah to the Altamaha, and thence westward to the other side of the world ; and that he could not form any compact with them, because they were incapable of making a bargain. Had the whites distinctly avowed such principles of morality and law, they would never have established themselves on this continent beyond the reach of their guns. No other refutation of so monstrous a system seems necessary, than its utter impracticability, at the commencement of the settlements. In other words, the emigrants from Europe could never have become strong enough to throw off all the restraints of justice, and disavow the most obvious principles of moral honesty, unless they had been, or at least had pretended to be, honest and just during a period of two hundred years.
Oglethorpe, having found an interpreter, summoned a meeting of the chiefs to hold a congress with him at Savannah, in order to obtain “ their consent to the peaceable settlement of the colony." About fifty chiefs assembled. Oglethorpe represented to them “the great power, wisdom, and wealth of the English nation, and the many advantages that would accrue to the Indians in general, from a connexion and friendship with them; and, as they had plenty of lands, he hoped they would freely resign a share of them to his people, who were come to settle among them for their benefit and instruction.”
This is the first overture of the colonists to the assembled Indians ; and it certainly does not look much like demanding the whole country, in the name of the king of England. It seems more like a humble intreaty for permission to remain, which permission was solicited for the purpose of doing good to the natives. The consent of the lords of the soil was obtained, and a treaty was made, of which the following is an abstract:
TREATY OF SAVANNAH. The preamble recites the authority of Oglethorpe, and says that certain " articles of friendship and commerce” were made between him “ and the chief men of the nation of the Lower Creeks,” viz.
1. The colony engages to let traders carry goods into the “ Creek nation” for sale.
2. The colony engages to make restitution to the Creeks for any injury which shall be done to them by white traders, and to punish the offenders according to English law.
3. If the Creeks should not treat the traders well, the colony will withdraw the English trade.
4. The Creeks say, that they are glad the English have come, and add these memorable words :: “ Though this land belongs to us, (the Lower Creeks,) yet we, that we may be instructed by them, (the English,) do consent and agree, that they shall make use of, and possess, all those lands which our nation hath not occasion to use : Provided always, that they, upon settling every new town, shall set out for the use of ourselves, and the people of our nation, such lands as shall be agreed upon between their beloved men, and the head men of our nation ; and that these lands shall remain to us forever.”
5. The Creeks agree not to do any injury to any of the traders; but if any Indians should transgress this article, the nation will deliver them up, to be punished according to English law.
6. The Creeks agree to apprehend and restore runaway negroes.
7. The Creeks to give no encouragement to white settlers from other European nations. A schedule of prices of articles, exchanged for peltry, was also agreed upon.
This treaty was ratified by the corporation, in the city of London, October 18, 1733.
So far as appears, Oglethorpe was entirely fair and honest in this whole transaction. The Indians confided in all his statements, and both parties doubtless supposed that the colony would conduce to the permanent advantage of the Indians, and that they and the settlers would live together in friendship, according to the import of the preceding articles. The corporation, in ratifying the treaty, declare that