port his claim. He greatly endangered the safety of Savannah, and put all the settlements into the greatest alarm. It is not a little curious, that he instigated the Indians to assert that Oglethorpe and his followers had been merely tenants at will of the Creeks from the beginning; applying the same phraseology to the whites, as the legislature of Georgia has recently applied to the Cherokees, and with much greater plausibility. Although Mr. Stephens, then governor of Georgia, did not admit the claim of Bosomworth and his wife, yet the whole affair evinced that it would have been idle and dangerous for the settlers to have pretended any other right to the country, than that which they had acquired with the consent of the natives.*

Before 1760, a destructive war existed between the Cherokees and the colonists of Virginia, the Carolinas, and Georgia. During the contest many cruelties were perpetrated on both sides. The southern

States were unable to defend themselves, and applied for aid to Gen. Amherst, commander of the British forces in America, from whom indispensable assistance was twice received. A treaty of peace was at last made between the Cherokees and the colonists, the terms of which I do not find.

Soon after the close of this war, Capt. Steuart, a sagacious and intelligent man, having been much acquainted with the Indian character, was appointed, by the king, superintendent of Indian affairs for all the territory south of Virginia. He convened a general congress of Indians at Mobile, where he made a long speech to them, addressing the different tribes in succession. At the close of his speech, he said,

Lastly, I inform you, that it is the king's order to all his governors and subjects, to treat Indians with justice and humanity, and to forbear all encroachments on the territories allotted for them. Accordingly, all individuals are prohibited from purchasing any of your lands; but as you know that your white brethren cannot feed you when you visit them, unless you give them grounds to plant, it is expected that you will cede lands to the king for that purpose; but whenever you shall be pleased to surrender any of your territories to his Majesty, it must be done, for the future, at a public meeting of your nation, when the governors of the provinces, or the superintendent, shall be present, and obtain the consent of all your people. The boundaries of your hunting grounds will be accurately fixed, and no settlement permitted to be made upon them. As you may be assured that all treaties with you will be faithfully kept, so it is expected that you also will be careful strictly to observe them."

It is not necessary to detain the reader with any comments on these declarations of the authorized representative of the British crown: only let them be compared with the present claims of Georgia.

*It is a remarkable fact, that Bosomworth induced the Creek chiefs, or rather a few of them, to appoint a general agent to transact their business for them, and then inveigled this agent to make a deed to him [Bosomworth] of the three reserved islands, and the small tract near Savannah. After he had occasioned much trouble to the colonial government, he went to England, and commenced a suit on the strength of this Indian grant. The litigation continued twelve years, when one of the islands was adjudged to him. He retured to America, and he and his wife lived and died on the island. From the account of this law-suit, which is given in McCall's History of Georgia, it would seem as though the English tribunals not only admitted the validity of Indian title, but of Indian grants to individuals. Some time afterwards, the King of England prohibited his subjects from making purchases of land from the natives.

TREATY OF AUGUSTA; OR FOURTH TREATY WITH THE INDIANS, IN WHICH GEORGIA WAS A PARTY.

A great meeting of chiefs of the Catawba, Cherokee, Choctaw, Chickasaw, and Creek nations, was convened at Augusta, by invitation of the colonists, at which were present Gov. Wright, of Georgia, Gov. Boone, of South Carolina, Gov. Dobbs, of North Carolina, Lieut. Gov. Fauquier, of Virginia, and Capt. Steuart, Superintendent of Indian affairs in the southern department. A treaty was concluded, Nov. 10, 1763, by which a cession of lands was made in satisfaction of debts, which the Indians had contracted with the English. The Cherokees and Creeks united in this grant, which, with what had been previously granted, embraced all the sea-coast of Georgia, and so far back as to make about one-eighth part of the State, as it now appears on the map, or one-twentieth part within the limits, which were fixed by the king of England, for his colony of Georgia, after the peace with Spain of the same year, and which include Alabama and Mississippi.

Having given an account of this treaty, the historian adds, "I believe it may be said of Georgia, that there has been no instance in which lands have been forced from the aborigines by conquest; and that, in all cases, the Indians have expressed their entire satisfaction at the compensations which have been given them for acquisitions of territory." The history was published in 1811.

I most sincerely desire that the historian, who shall write a hundred years hence, may be enabled to say the same thing. It can never be truly said, however, that Georgia has not repeatedly, within a few years past, threatened to take the lands of Indians by force, and thus been chargeable with oppressing them, by creating the most serious alarm among them.

The Creek Indians, not being very skilful casuists in distinguishing between rights to real and personal property, interpreted the treaty in such a sense as to give them a right to cattle and horses, which they found straggling in the woods on their lands. They fairly remonstrated with Gov. Wright, however, against the whites permitting their stock to stray over the boundaries. Having occasion to use some horses, which were found there, the Indians took several. A party of the whites, irritated by the loss of their horses, made an irruption into the Creek country, re-took the property, remunerated themselves to their own satisfaction for other losses, and burned all the houses in the towns. The chiefs came to Savannah and complained of this harsh treatment; the governor made them compensation, and peace was restored. Let the reader decide, which party gave the most evidence of savage manners in this transaction.

In 1773, a convention of Creeks and Cherokees was held at Augusta, when another tract of land was ceded to the colonists, in payment of debts.

When the revolutionary war broke out, the Indians took the side of the mother country. A peace was concluded with the Cherokees by the commissioners of Georgia, at Duet's Corner, South Carolina, May 20, 1777.

Hostilities were afterwards renewed. In May, 1783, the Cherokee

chiefs were invited to Augusta, and six distinguished men were appointed by Georgia to negotiate with them. A treaty was concluded on the 30th of that month, establishing the boundary of the Chatahoochy, which remained the line of demarkation between Georgia and the Cherokees till long after the treaty-making power had been given to the general government. It is still the boundary in part.

This treaty was declared to be made between the State of Georgia (then, as averred by that instrument, in the seventh year of its independence) and "the head men, warriors, and chiefs of the hordes or tribes of Cherokee Indians, in behalf of the said nation."

The two objects of the treaty were peace and a definite boundary, both of which were obtained on the undisputed basis of the Cherokees being a "nation," and having territorial rights. Why is not Georgia bound by this treaty, made by herself, in the plenitude of her independence, signed by her governor, and by the late Col. Few, who was one of her delegates to form the federal constitution, and by four others of her most valued citizens? Here can be no pretence of encroachment on the rights of Georgia by the national authorities of the United States. The act is exclusively the act of Georgia, performed by her own agents, and for her own benefit.

This treaty, being made on the same principles as the preceding ones, is an implicit attestation to the validity of them all, and should secure to the Cherokees the peaceable possession of their country.

P. S. It will be some weeks, Messrs. Editors, before I shall offer another communication to your columns. With your permission, I propose, then, to examine the following questions :

How far Georgia is bound by the acts of the general government, in pursuance of the treaty-making power?

How far the Cherokees are implicated in the compact of 1802 between Georgia and the United States?

How far Georgia has assented to treaties actually made between the United States and the Cherokees?

And, in conclusion, having considered the demands of justice, I shall briefly inquire, whether a benevolent and upright man, with a full knowledge of the case, would advise the Cherokees to sell their country, and remove beyond the Mississippi?

Nat. Intell. Oct. 14, 1829.]

No. XIX.

Statement of important positions on this subject-Other treaties with Georgia-Treatymaking power of the general government-Are the Indians capable of making a treaty ?-Are engagements with them to be called agreements?—The Supreme Court cannot pronounce a treaty void-Supposed case of Mr. Girard-Whether the national government can cede the territory of a State.

In the postscript to my last number, I proposed to suspend my communications for some weeks, announcing, at the same time, several topics, which remained to be discussed. This annunciation seems not

to have been sufficiently explicit. I must be permitted, therefore, to state, in the use of different phraseology, the points, which ought still to be examined, before the strength of the Cherokee cause can be justly and fully estimated.

Unless I am mistaken, it can be clearly shown,

That the original right of the Cherokees, confirmed and guaranteed by so many treaties, was not, and could not be, affected by the compact of 1802, between Georgia and the United States :

That Georgia so understood the matter, for a quarter of a century after the year 1802, as appears by numerous acts of her legislature : That the proposed plan for removing the Indians is visionary, and derives no support from experience:

That the proposed guaranty of a new country would not be entitled to confidence; and that the offer of a guaranty, in present circumstances, would be esteemed by the Cherokees a cruel insult :

That the actual removal of the southwestern tribes, would, in all probability, be followed by great evils to them, without any corresponding benefit to them, or to others and

That a conscientious man will be very cautious how he advises the Indians to yield their unquestionable rights, and to commit all their interests to the issue of a mere theoretical experiment, which, to say the least, is very likely to fail, and for the failure of which there can be neither remedy nor indemnity.

It has appeared, that the colony of Georgia, (with the cognizance of the British government,) and the State of Georgia, in the days of her youthful independence, negotiated with the Creeks and Cherokees on the undisputed basis, that these Indians were nations; that they had territorial and personal rights; that their territory was to remain in their possession, till they should voluntarily surrender it; and that treaties with them are as truly binding, as treaties are between any communities whatever. Such is the aspect of all the transactions, in relation to this subject; and no candid reader of history can avoid these conclusions. Seven formal treaties, all possessing these general characteristics, have been already mentioned. The last of them was dated in the year 1783, just fifty years from the first settlement of the colony. It is probable, that, within this period, many subordinate negotiations were held.

The treaty of Galphinton was formed in the year 1785, and is not unfrequently referred to. The next year, a treaty of peace was made

between Georgia and the Creeks. I have not been able to find these two documents, nor to ascertain the provisions which they contain. Quotations made from them on the floor of Congress, by a representative of Georgia, leave no room to doubt, that they are of the same general character, as the treaties which preceded them.

In 1787 the federal constitution was formed, by which the power of making treaties was conferred on the President and Senate of the United States. As this was a subject of great importance, the framers of the constitution not only took care (Art. II. section 2) to assign the treaty-making power to the general government, but to inhibit (Art. I. section 10) the several States from entering into " any treaty, alliance, or confederation." Since the constitution was adopted, no State has negotiated with Indians. All public measures respecting them have fallen within the scope of the powers vested in the general gov

ernment.

Georgia, in her character of a sovereign and independent State, adopted the constitution, and thus became a member of the Union. She must be bound, therefore, by all acts of the President and Senate, which are performed by virtue of powers conferred in the constitution. Very recently, some of her public men have asserted, that the United States have neither the power to make treaties with Indians, nor to cede any part of the territory of a State.

The power to make treaties with Indians is denied on the ground, that treaties can be made with nations only; and that communities of Indians are not nations. Unfortunately for this theory, it was notoriously invented to answer a particular purpose. It is not, and cannot be, entitled to the least degree of credit. Communities of Indians have been called nations, in every book of travels, geography, and history, in which they have been mentioned at all, from the discovery of America to the present day. Treaties have been made with them, (uniformly under the name of treaties,) during this whole period. The monarchs of Europe, and the colonies of Europeans, were perpetually making treaties with Indians, in the course of the 17th and 18th centuries. The colony of Georgia always spoke of the Creek and Cherokee nations; and the compacts, which she made with them, she called treaties. The framers of the constitution must be supposed to have used language in its ordinary acceptation. When the constitution speaks of a treaty, it certainly embraces every sort of compact, which the universal voice of mankind had designated by that

name.

It would seem, according to the present doctrine of Georgia politicians, that civilized people may be called nations and can make treaties; but uncivilized people are to be called savages, and public engagements with them are to be denominated-what such engage

There

ments are to be denominated, we are not as yet informed. must be a new code of national law, and a new set of writers upon it, in order to help Georgia out of her present imagined difficulties:-Í say imagined, because there is no real difficulty; not the slightest. What are the distinctive marks of a civilized people, and who is to decide whether these marks are found in a given case, are matters unexplained. Nor are we told in what respects treaties between