and the best definition of a nation is, that it is a community living under its own laws.

A nation may be a power of the first, second, third, or tenth rate. It may be very feeble, and totally incompetent to defend its own rights. But so long as it has distinct rights and interests, and manages its own concerns, it is a substantive power; and should be respected as such. Any other rule of interpretation would make force the only arbiter. St. Marino, in Italy, is described in our best gazetteers as "a small but independent republic;" and yet it has not half so many people, nor the three hundredth part so much land, as the Cherokee nation now has.

It has been said, indeed, that the Indians, being an uncivilized people, are not to be ranked among nations. But this is said gratuitously, and without the least shadow of proof. How many treaties did Julius Cæsar make with savage tribes, who were greatly inferior, in every intellectual and moral respect, to the Cherokees of the present day? There is as little reason as truth in the objection. Has not God endowed every community with some rights? and are not these rights to be regarded by every honest man and by every fairminded and honorable ruler?

But, above all, the objection comes too late. The United States are, as a lawyer would say, estopped. Gen. Washington, with his Cabinet and the Senate, pronounced the Cherokees to be a nation. It does not appear that a doubt ever crossed the mind of a single individual, for nearly forty years, whether this admission were not perfectly correct. Presidents Adams, (the elder,) Jefferson, Madison, and Monroe, all admitted the Cherokees to be a nation, and treated with them as such. The Secretary of War, (now Vice President of the United States,) negotiated the last treaty with the Cherokees, and affixed his signature to it. In this treaty, as in every preceding one, the Cherokees are admitted to be a nation, and there is not a word in any of these solemn instruments, which has the most distant implication of the contrary. If the United States are not bound in this case, how is it possible that a party should ever be bound by its own admissions? The truth is, that if our country were bound to France, or England, by any stipulation, however mortifying to our pride, or disadvantageous to our interest, and the meaning of the obnoxious clause were supported by one fiftieth part of the evidence by which it can be proved that the United States have recognized the national character of the Cherokees, no lawyer, civilian, or politician even, would risk his reputation, by attempting to dispute or evade the meaning. We should be obliged to submit to inconveniences resulting from our own stipulations, till we could remove them by subsequent negotiations. If we have been overreached by the Cherokees in so many successive treaties; if they have had the adroitness to get from us repeated acknowledgments of their possessing a character and rights, which they did not possess; if General Washington, and a long line of distinguished statesmen, have made incautious admissions; and if, in this way, we have made a bargain which bears hard upon ourselves-still, our hands and seals testify against us. We must be more cautious the next time. "He that sweareth to his own hurt, and changeth not," is declared in Holy Writ to give one proof that he is an upright man, and will receive the aprobation of God. In a word, if Wash

ington and Knox, Hamilton and Jefferson, compromitted the interests of this country, by indiscreet and thoughtless stipulations, we must gain wisdom by experience, and appoint more faithful and more considerate public agents hereafter.

Having inquired into the meaning of the title and preamble of the treaty of Holston, let me now direct the attention of the reader to its provisions:

"ART. 1. There shall be perpetual peace and friendship between all the citizens of the United States of America, and all the individuals composing the whole Cherokee nation of Indians."

If the " peace and friendship" were to be "perpetual," the future

continuance of the "Cherokee nation of Indians" for an indefinite period, was taken to be a matter beyond all question. It appears from this article, as well as from the preamble, that "Indians" may constitute a "nation." The word tribe, when used to denote a community living under its own laws, is of equal force with the word nation; and in this sense it is to be taken, wherever it occurs in the course of my remarks. But the Cherokee nation had been divided, from time immemorial, into seven clans, sometimes called tribes, and the Choctaw nation into two such tribes. This fact occasioned some of the peculiar phraseology in the treaty of Hopewell. As the seven clans, or tribes, of the Cherokees were united under one government, they were all comprehended under the phrase of "the whole Cherokee nation of Indians;" and the word tribe is not found in the treaty of Holston. The word nation is applied to the Cherokees, in this single instrument, no less than twenty-seven times; and always in its large and proper

sense.

"ART. 2. The undersigned chiefs and warriors, for themselves and all parts of the Cherokee nation, do acknowledge themselves and the said Cherokee nation, to be under the protection of the United States of America, and of no other sovereign whatsoever; and they also stipulate that the said Cherokee nation will not hold any treaty with any foreign power, individual State, or with individuals of any State."

I remarked upon the treaty of Hopewell, that it has always been a common thing for weak states to rely upon the protection of stronger ones. When a weak state acknowledges a superior, it is bound in good faith to act in accordance with that acknowledgment; but it is, in all other respects, independent of the superior. In other words, it retains all the rights, which it has not surrendered. This is the dictate of common sense, and is decisively stated by Vattel.

What is to be understood by the Cherokees being under the protection of the United States, will very fully appear in the course of this investigation. In the very article just quoted, the Cherokees bind themselves not to hold any treaty "with any foreign power," nor with any "individual State." This was a very material relinquishment of their natural rights; but it was supposed to be counterbalanced by various advantages secured to them by the treaty, particularly by the solemn guaranty in the seventh article, which will be considered in its order.

It is now contended by the politicians of Georgia, that the United States had no power to make treaties with Indians "living," as they express it, "within the limits of a sovereign and independent State." Thus, according to the present doctrine, General Washington and his

advisers made a solemn compact, which they called a treaty, with certain Indians, whom they called the Cherokee nation. In this compact, the United States bound the Cherokees not to treat with Georgia. Forty years have elapsed without any complaint on the part of Georgia, in regard to this exercise of the treaty-making power; but it is now found that the Cherokees are tenants at will of Georgia; that Georgia is the only community on earth that could treat with the Cherokees; and that they must now be delivered over to her discretion. The United States then, at the very commencement of our federal government, bound the Cherokees hand and foot, and have held them bound nearly forty years, and have thus prevented their making terms with Georgia, which might doubtless have been easily done at the time of the treaty of Holston. Now it is discovered, forsooth, that the United States had no power to bind them at all.

If such an interpretation is to be endured by an enlightened people in the nineteenth century, and if, in consequence of it, the Cherokees are to be delivered over, bound and manacled; if this is to be done in the face of day, and before the eyes of all mankind, it must be expected that shouts and hisses of shame and opprobrium will be heard in every part of the civilized world. Pettifogging is no very honorable business, when practised in a twenty shilling court; but what sort of pettifogging would this be? The Cherokees have fully and honorably fulfilled their engagements. They have sold us, at a moderate price, three quarters of their country, comprising all the best parts of it. They have submitted to a qualified dependence. They have abstained from holding any treaty with any foreign power, or individual State." And now, when the United States are called upon to fulfil their part of the contract, and defend the Cherokees from Georgia, it is gravely proposed to say to these oppressed Indians, "We have no power to defend you. It is true we promised to do it; and you confided in our promise; and, in that confidence, made valuable concessions to us. But, really, we never had the power to make such a promise."

Has fraud of this barefaced and most disgraceful character been perpetrated in the sanctuary of our dignified Senate, and by means of solemn treaties ratified in mockery? the effect of which is to dispossess a "nation" of its hereditary lands and government, and to drive the individuals of which it was composed, (who are called in the preamble already cited, "the citizens and members thereof")-to drive away these "citizens" as outcasts and vagabonds?

But such an interpretation, so insulting to the Cherokees and to the common sense of mankind, and so cruel in its operation, cannot be admitted. Washington was neither a usurper, nor an oppressor; nor were Ellsworth and his fellow senators, either novices or cheats.

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 Indians. It was not binding upon them, however, till they voluntarily consented to it.

"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