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 unoccupied 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.

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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.

No. XVI.

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 Pacifio 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.

nent.

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 contiBut 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

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 exercise, 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 protector 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, and 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 it-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.