the judiciary, whenever regularly brought before it. The Judges of the Supreme Court of the United States long since declared, incidentally, that the United States are bound by treaties to the Indians. Mr. Justice Johnson said, nineteen years ago, (6 Cranch, p. 147,) "innumerable treaties formed with them, [the Indians,] acknowledge them to be an independent people; and the uniform practice of acknowledging their right of soil, and restraining all persons from encroaching upon their territory, makes it unnecessary to insist upon their right of soil." Chief Justice Marshall said, that the Indian title "is certainly to be respected by all courts, until it be legitimately extinguished." This is enough for the perfect defence of the Cherokees, till they voluntarily surrender their country; such an act on their part being the only way in which their title can be legitimately extinguished, so long as treaties are the supreme law of the land.

No. XIV.

Apology for this prolonged discussion-The people of the United States are jurymen in the case, and must hear it-The Cherokees have refused to treat for ten years-Scruples of Georgia about the treaty-making power-Perfect consistency of treaties-No evidence to the contrary-Laws, treaties, common sense, justice, all on the side of the Cherokees.

It is well known, Messrs. Editors, that a long series of numbers, on a single subject, is not apt to be read; especially if it be of the nature of a legal or diplomatic discussion. On this account, I have felt many misgivings, in calling upon the public to follow me from one stage to another of the negotiations with the Cherokees; but I have been advised, that no part of the preceding numbers could be omitted without injury to the cause. If I were arguing this question before the Supreme Court of the United States, simple references would be sufficient in many cases, where I have felt it necessary to make quotations. Yet I think any candid lawyer will admit, that, if he were pleading the cause of the Indians before the highest tribunal in our country, he would be constrained, by faithfulness to his clients, to dwell much longer upon some topics than I have done. Let it be remembered, that those members of the American community, who may be justly denominated honest and intelligent, are to decide this question; or at least, that they may decide it properly, if they will take the trouble to understand it, and will distinctly and loudly express their opinion upon it.

And here let me humbly intreat the good people of the United States to take this trouble upon themselves, and not to think it an unreasonable task. Let every intelligent reader consider himself a juryman in the case; and let him resolve to bring in such a verdict, as he can hereafter regard with complacency. It is not a single man, who is on trial, and who may lose his life by the carelessness of the jury. Sixty thousand men, women, and children, in one part of the United States, are now in constant expectation of being driven away from their country, in such a manner as they apprehend will result in

their present misery and speedy extermination :-sixty thousand human beings, to whom the faith of the United States has been pledged in the most solemn manner, to be driven away-and yet is it possible that the people of the United States should be unwilling to hear their story, or even to require silence till their story can be heard?

I am encouraged, Messrs. Editors, to proceed, by the assurance, which has reached me from different quarters, that our community is not callous to every feeling of justice and honor, in relation to the Indians; that there is a greater disposition to inquire on this subject, than on any other now before the public; and that even my numbers, deficient as they are in vivacity, are extensively read with that interest, which the magnitude of the cause, in all its bearings, may well excite.

A few remarks upon the treaties with the Cherokees may not be useless.

It is a natural inquiry, Have there been any attempts to treat with this nation, since the year 1819? There have been many; and although the politicians of Georgia now think that the United States have no power to make treaties with the Indians, it is not more than one or two years since they were urging Congress to make appropriations for this object, and pressing the executive to procure the Cherokee country by negotiation. In regard to this matter, they have been extremely importunate. Mr. Monroe was teased by them during his whole presidency. Their scruples, as to the extent of the treatymaking power, are of quite recent origin; and it is supposed, that they would not vehemently remonstrate, if a treaty should now be made, the terms of which should compel the Cherokees to take up their residence under the shade of the Rocky Mountains. The scruples about the treaty-making power seem not to have existed, till after the Cherokees refused to treat any more. When chiefs and people had thus refused, at home and abroad, in their own territory and at Washington;-when they had declared in writing, that there was not money enough in our national treasury to purchase an additional foot of Cherokee land; and when these declarations were made with a determination and constancy, which left no hope of forming a treaty ;— then it was discovered, that the government of the United States possessed no power to make a treaty.

There is a provision in the treaty of Hopewell, (the first treaty in the long series,) similar to the proposal made to the Delawares; viz. That the Cherokees may send a deputy of their choice to Congress.' On this provision I omitted to make a remark, in the proper place, which may be introduced here. Though the treaty of Hopewell was formed under the old confederation, it is not the less binding on that account; and good faith would now require, that the Cherokees should be allowed a privilege, as nearly as possible tantamount to what would have been the privilege of sending a deputy to the Old Congress.*

Here then we have sixteen treaties with the Cherokees, negotiated from 1785 to 1819, ratified by five presidents, all resting on the same

* Some other remarks, on the treaty of Hopewell, are anticipated in the third number, as published in this pamphlet, p. 13, and are therefore omitted here,

principles, all consistent with each other, and all now in force, except that some parts may have become obsolete by subsequent stipulations on the same subjects. The earlier treaties are repeatedly and solemnly recognized by later ones. An official letter of Mr. Jefferson is curiously wrought into a treaty, so as to form a connecting bond to the whole system. In the last treaty of all, negotiated by the present Vice President of the United States, a law of congress is introduced for the permanent defence of the Cherokees.

If we look into other treaties with Indians, from the Delaware treaty of 1778, (from which a quotation was made in my ninth number,) to the Creek treaty of 1826, the same inviolable territory, the same solemn guaranty, the same proffer of friendship and good neighborhood, will every where be found. So many treaties had been formed with Indians previously to 1810, that Mr. Justice Johnson pronounced them "innumerable." In none of these treaties is the original title of the Indians declared to be defective. In none of them is it said, that Indians have not the power of self-government; or that they must come under the government of the several Stales. In no case, have the Indians signed away their inheritance, or compromitted their independence. They have never admitted themselves to be tenants at will, or tenants for years. Upon the parchment all stands fair; and, so far as their present engagements extend, they are under no more obligation to leave their country, than are the inhabitants of Switzerland to leave their native mountains.

What is the evidence brought against this mighty mass of treaties? Nothing; absolutely nothing. The Secretary of War merely says, that the Cherokees were permitted to remain on the lands of Georgia. But where is his authority?

If we turn from treaties to the laws of the United States, we find the whole system of legislation made in exact accordance with the treaties. Nearly all these compacts required appropriations of money. When the appropriations were made, the treaties came of course under the view of both houses of Congress; and every such appropriation was of course an assent of Congress to the treaty.

Besides, some of the most important articles of treaties, were taken from previously existing laws of Congress. Thus, the 11th article of the treaty of Holston, is taken from the treaty made with the Creeks at New York, Aug. 7, 1790, where it was inserted verbatim from "an act to regulate trade and intercourse with the Indian tribes," which was approved by President Washington only sixteen days before. This discovery I have just made, and consider it as decisive evidence, that the treaty with the Creeks was a measure of great deliberation, and that the eminent men of that day labored to make every part of their political system harmonize with every other part.

If we leave both laws and treaties, and look at the conduct of our government toward the Indians, we find the declarations of Indian agents to have been always directed to this one point: viz. to satisfy the Indians, that the government would deal justly and faithfully by them, would perform all its engagements, and would secure to them the permanent possession of their country. They were constantly urged to become farmers, to educate their children, and form a regular government for themselves; and all this, avowedly, with a

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.

No. XV.

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.

As

"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 family within our bounds derives its subsistence from the chase. to our being savages, we appeal to the white men, who travel on our turnpike roads, whether they receive any 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."

us.

To this the Georgians rejoin: " But you had no business to betake yourselves to an agricultural life. It is a downright imposition upon 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