of lands, nor as the price of claims to land, but "as a consideration for expenses incurred" by Georgia, " in relation to said territory."

3. The United States engage to extinguish the Indian title to lands within certain limits, "as early as the same can be peaceably obtained, on reasonable terms.'

Georgia now complains, that the United States have failed to fulfil this compact. But in what does the failure consist? The money has been paid. The Indian title to three quarters of the lands, which belonged to the Indians in 1802, within the intended limits, has been extinguished by the United States, in the manner prescribed; and Georgia is now in actual possession. The remaining quarter has been repeatedly applied for; and the United States have always stood ready to purchase it of the rightful owners, "on reasonable terms." At least, this has been repeatedly and officially declared to be the fact, by public functionaries of the United States. But if Georgia can convict our national authorities of culpable negligence in this respect, let her claim a fair indemnity. In order to a conviction, however, something more than mere assertion will be necessary. The evidence of neglect must be produced. It seems to be morally certain, whether the United States shall be able to vindicate themselves or not, that the remaining lands of the Cherokees cannot be "peaceably obtained" of the rightful owners; and if any indemnity is really due to Georgia, let her receive it.

The reader will not fail to see, that the Creeks and Cherokees could not be in any manner affected, as to their rights of soil and jurisdiction, by a compact, to which they never consented, and in the formation of which they had no agency. If A. covenants with B. for a valuable consideration, that he will purchase the farm of C., as soon as he can obtain it lawfully, and at a reasonable price, this is a good contract, and will remain binding on A., till he discharges himself from it. But it would be absurd to say that C. is bound by such a contract. He may refuse to sell his farm on any terms; or he may ask an unreasonable price for it. In either case, so long as A. stands ready to purchase, at a reasonable price, he cannot be charged with a breach of contract. If he has been culpably negligent, by not taking suitable pains, or making reasonable offers, B. can doubtless claim an indemnity. It would be rather a hard measure upon C., however, to turn him out of his house, and drive him from his farm, merely because he refused to sell his possessions. Such an administration of law would not be much admired, except perhaps in the court of Ahab and Jezebel.

:

Nor would it alter the case, if A. and B., at the time of making the contract, expected that C. would sell his farm, at the first reasonable offer. There might be strong indications, that C. would become an intemperate man, a spendthrift, a sot, a vagrant, and that his farm would speedily pass into other hands and yet these indications might prove fallacious. C. might become a thrifty husbandman, keep his farm clear of debt, and leave it unincumbered to his heirs. And is he to be blamed, because he turned out to be an industrious man, and thus disappointed the unfavourable prognostications of B., who stood looking upon the farm with covetous eyes

Georgia says, that she expected the United States would have long

since extinguished the title to all the Indian lands, which she claims. Very well. What if she did? The history of every man, and of every community, is full of disappointed expectations. In the spring of 1818, the planters of Georgia expected to get thirty cents a pound for cotton, in many subsequent years; and they made their purchases of land and slaves in that expectation; but they are now glad to get ten cents a pound. This disappointment is a hundred times more felt by each man individually, than the failure to get lawful possession of a tract of indifferent land, in the remotest corner of the state.

The terms of the compact between the United States and Georgia save the rights of the Indians, and were manifestly intended to save them. But if the United States had agreed to take forcible possession of the Indian country, and to put Georgia in possession, such an agreement would be absolutely void, for several reasons. First, it would be palpably and monstrously unjust. Secondly, it would be in opposition to previously existing treaties, between the United States and the Indians, which treaties were the supreme law of the land. Thirdly, it would be in opposition to treaties between Georgia and the Indians,-treaties never abrogated nor annulled,—and therefore Georgia could not insist upon its execution.

There is not a more established maxim of English law than this ; viz. that unlawful contracts are not binding. If, for instance, A. covenants with B. in consideration of a thousand dollars, that he will compel C., by threats, duress, or false imprisonment, to sign a deed of land; and B. should undertake to enforce the covenant in a court of justice, it is probable that both the parties would find themselves in a penitentiary, much sooner than in possession of C.'s land.

It is clear, then, that the United States could not be bound, by the compact of 1802, however that instrument might be understood or construed, to do more than purchase the lands of the Cherokees, within the prescribed limits, whenever the rightful owners should be willing to sell.

But this is not all.

A fair interpretation of the compact binds Georgia to the same course of proceeding, which had previously been pursued, for the acquisition of Indian lands. This course was perfectly well known to both parties. It was always through the medium of the treaty-making power.

The compact says, that the United States shall extinguish the Indian title. The Indians had a title, it would seem; and a title of such a kind, as would require the agency of the United States before it could be extinguished. It would not expire of itself; it would not vanish before the march of civilization; but the immense power of the general government must be brought to bear upon it. Even this power might fail; and hence the provision, that the United States should not be bound to do what was impossible, or unreasonable. At that time, it would doubtless have been thought morally impossible for our general government to break plain, positive treaties; or to take forcible pos-session of lands in the peaceable occupancy of Indians, even though these lands were not protected by treaty. The title was to be extinguished peaceably, and on reasonable terms. The law of the strongest was not to be relied on. All the parties were to sustain the character

of reasonable beings. There was to be a consent of terms, a union of minds, and not an appeal to the sword. This part of the compact is as truly obligatory, as any other part; and as truly obligatory upon Georgia, as upon the United States.

It was stipulated by the commissioners, that the compact should be binding, if the assent of the legislature of Georgia should be given within six months from the date; provided, that Congress should not, within the same period, repeal the act, by virtue of which the agreement had been made. The legislature of Georgia assented to the compact, and Congress did not repeal the act. The compact therefore

took effect.

The enacting clause, by which Georgia ratified the compact, is in the the following words, which ought to be very diligently considered by the leading men of that state: viz.

"Be it enacted by the senate and house of representatives of the State of Georgia, in general assembly met, and by the authority thereof, That the said deed, or articles of agreement and cession be, and the same hereby is and are fully, substantially, and amply ratified and confirmed in all its parts; and hereby is and are declared to be binding and conclusive on the said State, her government and citizens, forever."

Now let it be remembered, that the state of Georgia, fully aware that the treaty-making power was vested exclusively in the general government; knowing in what manner that power had been exercised for thirteen years; that no less than eight treaties had previously been made by the general government with Indian nations, residing within the chartered limits of Georgia; that most of these treaties contained cessions of land, and established boundaries, of territory, with solemn guaranties; that there was no way of extinguishing the Indian title, except by treaty ;—the legislature of Georgia, knowing all these things, solemnly ratified the compact, in accordance with which the United States only could extinguish the Indian title, and this could be done only in a peaceable manner. The compact containing these provisions was ratified, “in all its parts," and declared to be binding on the "State, her government and citizens, forever."

With what shadow of reason, then, can it be pretended. that Georgia has a right to extinguish the Indian title herself, without waiting for the interposition of the general government; or that the Cherokees have no title to be extinguished, being merely tenants at will, or tenants by sufferance? When the politicians of Georgia stretch out their grasping hands to seize the property of unoffending Cherokees, let this word forever, the closing word of a solemn act of legislation, ring in their ears, till they shrink back from oppression, and betake themselves to that course of equity, which is prescribed in the compact, thus solemnly ratified and sanctioned.

The public measures of Georgia, in relation to the Indians, have all, till recently, been conformed to the principles of this compact of 1802. It is not quite five years since the spurious treaty of the Indian Spring was made; a treaty, which the highest authorities of our nation set aside for manifest fraud. The proclamations and reasonings of the Governor of Georgia, in regard to the effect of this treaty, (on the assumption that it was valid,) are, in the main, correct and proper.

The treaty was made February 12, 1825. On the 22d of March following, Governor Troup issued a proclamation, which commences thus : "Whereas, by a treaty concluded with the Creeks, &c. their claims to the whole territory within the limits of Georgia, were ceded to the United States, &c. by which act the territory aforesaid, according to the stipulations of the treaty and of the articles of agreement and cession of 1802, will, on or before the first day of September, 1826, pass into the actual possession of the State of Georgia :" &c.

In this preamble, some of the principal doctrines, for which I have been contending, are plainly acknowledged or implied. The lands are here admitted to have been ceded to the United States by a treaty; and it is declared that they will pass into the actual possession of Georgia, eighteen months after the date of the proclamation; not because Georgia, as a sovereign and independent State, had a paramount title to them, nor because it was found written in the laws of nations that these lands belonged to Georgia; but because the stipulations of the treaty and the compact of 1802, so required.

This is an honest and accurate account of the matter. The United States had purchased lands of the Indians. These lands, when purchased, and after the time for the Creeks to remove from them should have arrived, would "pass into the actual possession of Georgia," for this very good reason; viz. the United States had covenanted, that as soon as lands, within certain limits, could be peaceably obtained, they should be thus obtained, "for the use of Georgia."

In the same proclamation, Governor Troup warns "all persons, citizens of Georgia or others, against trespassing, or intruding upon, lands occupied by the Indians, within the limits of this State, [that is, the lands described in the treaty,] either for the purpose of settlement, or otherwise, as every such act will be in direct violation of the provisions of the treaty aforesaid, and will expose the aggressors to the most certain and summary punishment by the authorities of the State and of the United States."

The treaty prescribed, that the Creeks should remove before September of the next year, till which time they were to retain unmolested possession of their country. But some of the citizens of Georgia might feel inclined to take possession earlier. Such a measure the Governor warns them against; assuring them, that it would be a direct violation of the treaty, and would bring upon the trespassers and intruders certain and summary punishment; and this punishment would fall upon citizens of Georgia, as well as others, if they should expose themselves to it. Now, as the treaty of the Indian Spring was justly considered by Governor Troup as a sufficient barrier to protect the Creeks in the possession of their country, till the time fixed in the treaty for their removal, why are not the treaty of Holston, with its solemn guaranty, (1791,) and the first treaty of Tellico, with its repeated guaranty, (1798,) and the treaty of General Jackson, with its recognition of previous treaties, (1817,)-why are not all these compacts a sufficient protection of the Cherokees" against all persons," to use the language of the proclamation, "citizens of Georgia, or others, trespassing or intruding upon the lands occupied by the Indians?"

We may safely gather from the passages here quoted, and the one which is to follow, that Governor Troup found no difficulty in under

standing the treaty; that its provisions were, in his opinion, to be rigidly observed ; and that ample powers were in the possession of the public authorities of the United States for punishing "aggressors."

The proclamation continues thus: "All good citizens, therefore, pursuing the dictates of good faith, will unite in enforcing the obligations of the treaty as the supreme law, aiding and assisting, &c. &c. and all officers, civil and military, are commanded to be vigilant in preventing offences under it, and in detecting and punishing offenders."

In the principles here assumed and enforced I heartily concur. The Governor, who issued his proclamation, is now a member of the Senate of the United States: where he will have the best opportunity to pursue the dictates of good faith, and to assert the obligations of treaties as the supreme law. Most gladly shall I see him engage in a work, which so well becomes a Senator of our great republic; and, should he thus engage, he may be encouraged with the thought, that his efforts will not be unsuccessful.

No. XXI.

Gov. Troup's opinion of the effect of treaties-Soil and jurisdiction go together -The Cherokees cannot be secured in the possession of their lands, if they come under the laws of the States-Reasoning of Messrs. Campbell and Meriwether-Select Committee of Congress-Laws of Georgia-Decisions of the Supreme Court-These decisions a defence of the Cherokees.

It is at the present moment a favorite doctrine of Georgia, that the right of soil in the Indian country and of sovereignty over it, is vested in that State; and has been thus vested, ever since the peace of 1783. As a consequence of this assumed right, the Senate of Georgia openly declared, in December, 1827, that the State might properly take possession of the Cherokee country by force; and that it was owing to her moderation and forbearance that she did not thus take possession.

But Governor Troup appears to have been of a different opinion. In his letter to the Secretary of War, dated June 3, 1825, speaking of the treaty, by which he supposed the territory of the Creeks had been ceded, (in which supposition he would have been correct, if the treaty had not been spurious,) he says: "By the treaty of the Indian Spring, the Indian claims are extinguished forever. The article is worded in the present tense. On the instant of ratification, the title and jurisdiction became absolute in Georgia."

Now I humbly conceive, that if the title and jurisdiction became absolute in Georgia, as a consequence of the treaty, the inference is inevitable, that neither the title, nor the jurisdiction, was absolute before that event; and if the Indian claims were extinguished by the treaty, there must have been claims in existence, previously to that treaty, capable of being extinguished by it. The Cherokees are now in the same condition, as to title and claims, as the Creeks were, before the treaty of the Indian Spring; therefore the Cherokees have, at the present time, on the authority of Governor Troup, claims yet to be extinguished by treaty,