[MAY 15, 1830. It is ver ceedings struck me as somewhat novel, and I find that the case before us here. Upon these, it is silent. Senate departed in this instance from its former practice obvious how the court were led to the conclusion to which on the same subject under Mr. Jefferson's administration. they came. No one can read this opinion, and fail to see The treaties between the Senecas and Oliver Phelps, as well that they relied chiefly on the effect of the act of April as the Holland Land Company, for perfecting the same pre- 12th, 1822. The history of this act is well known to every emptive right, were laid before the Senate by Mr. Jeffer- lawyer in that State. Soonongize, a Seneca Indian, had son, and formally ratified like other treaties. There was been indicted for killing an Indian woman within the Sene but one dissenting vote, [Mr. WRIGHT, of Maryland.] Nei- ca lands. She had been put to death under the authority ther Mr. Jefferson nor the Senate appear to have then of the Seneca chiefs and sachems. He pleaded to the ju thought that this was an interference in any matter beyond risdiction of the State tribunal, and the question came be their power. How soon afterwards it has been discovered fore the Supreme Court for their opinion, in 1821. It was to be so, I cannot say. It may, perhaps, be inferred that fully discussed by the Attorney General and the counsel this treaty was considered more in the nature of a private for Soonongize, (Mr. Oakley) and the learning, research, contract, than a political treaty in the sense of the constitu- and ability displayed in that argument will be long re tion; and the conclusion to which the Senate came may ad-membered at the bar, and in the courts of New York. I mit of that explanation. But I think that the proceedings recollect well the general impression at the bar at that time followed too close upon the Georgia resolutions, to autho- on the point. The court held the case under advisement rize us to consider it as a grave precedent in its bearing on until the next winter. They found no principles on which the question of State sovereignty. they could safely affirm, in a judicial opinion, the jurisdic The committee have referred us to an expression found tion of the State court. They reported the case to the Goin an opinion delivered in the supreme court of New York, vernor, and recommended that the question should be subby the Chief Justice, in which they came to the conclu-mitted to the Legislature. The act of 1822 was passed. sion that the Indians were to be considered as citizens of There was, however, no Indian land to acquire. No code the State, and capable of taking by descent. They have of Indian crimes was enacted, nor were Indians disqualifica copied into their report an extract of half a dozen words, to testify in any case. The object and spirit of it is very in which the Chief Justice said that he "knew of no manifest in the recital which precedes it. It states that half-way doctrine on this subject." It would be quite the Senecas had exercised the power of punishing, even enough for New York to say, in answer to this case, that capitally, individuals of their tribe; that the sole and exthis opinion was afterwards reversed in the court of errors clusive cognizance of crimes belongs to the State; and with great unanimity, and this very point was then fully that to protect the Indians, this jurisdiction ought to be asexamined by the chancellor. But it would have been more serted to that extent. Now, sir, what was the case before fair to have furnished us here with a somewhat larger ex- the Legislature? and on what motives did they act? They tract from the opinion of the Chief Justice. The context saw that death was inflicted upon the Senecas under their would have shown us more clearly the views which led the bloody code and summary Indian forms, with no regard to court to the conclusion to which they came. He says that proof or any security for the fair investigation of truth. the court "do not mean to say that the condition of the Crimes, too, were of the most fanciful character. Sorcery Indian tribes, at former and remote periods, has been that and witchcraft were among them. The system was, in it of subjects or citizens of the State. Their condition has self, little less than murder. There was some form or been gradually changing, until they have lost every attri- mockery of inquiry before the chiefs, but nothing like trial. bute of sovereignty, and become entirely dependent upon, The foundation of what we call punishment, had no refer and subject to, our Government. I know of no half-way ence among them to the protection of their society, but doctrine on this subject." Now, sir, I think that the fair was rather the infliction of personal retaliation or private import of this is rather against the position taken by the revenge. I believe that the case of Sconongize partook committee. We all admit that there is no half-way doc- somewhat of that character, but I do not recollect the cir trine on this point. Every candid man will admit, too, that cumstances well enough to say that I may not be mistaken a tribe of Indians within any of the States may so far on that point. The intention of the Legislature was to dwindle away, or abandon their right to self-government, rescue them from this condition--to extend to them, if it and so far dissolve their original institutions, that they may could possibly be done, some security against the inhuman be considered, on the soundest principles, to have become proceedings of this Indian code--to afford them a fair and merged in our society, and extinct for all political purpo- impartial trial--a trial by testimony--the aid of counsel, and ses as separate communities. It would be very easy to re- the security of a jury. It was felt that the State owed it fer you to cases of that sort in New England. The Chief to humanity--to the unfortunate people cast upon her proJustice said that the time had come when the court, on tection-to her own character, and her responsibility to those principles only, might so consider the Indians in the opinion of mankind, to make that effort to arrest this New York. It was not a question involving strict principles course of violence and waste of human life. If the act can of municipal law merely. The court considered that such be sustained, it is undoubtedly desirable that it should be, was, in fact, their condition. But the case is reversed, and But this is not the first occasion on which I have expressed the law of the State is settled to this day as the court of my own opinion that it left the whole matter exactly where errors left it. The Chief Justice, however, nowhere de- it found it. It has once been my professional duty to exanied the original native right of the Indians to sovereignty. mine that question in its bearing upon another case. That was expressly disclaimed. He asserted no rights of sovereignty of the Senecas is yet unimpeached, if it should be conquest over them or their lands. He said nothing of dis- found that they were not subject to the jurisdiction of the regarding Indian pretensions to their lands; or that any of State when this act was passed. That question yet remains to the colonies or States had ever maintained that they had no be tried. However benevolent the intentions of the Legisla rights of sovereignty or soil. There is nothing of this, or ture may have been, yet, if it should be found that the conany thing that countenances it, in the opinion of the court. sent of the Seneca nation to the exercise of this power Such doctrines as these would have startled the moral sense was necessary, the courts will pause before they assume of the State, and contradicted her whole history. And jurisdiction under it. I am not aware that the act has ever how far, sir, after all, could the committee have pressed been executed. It was shortly after its passage, and in this opinion into their service, if it had never been over-the first case which brought up the question as to the conruled It referred only to the condition of the Indians in dition of the Indians in another form, that the Supreme New York. It neither speaks nor treats of any others, nor Court, relying on the inferences to be drawn from that does it profess to suggest any principles which reach the law, decided that they were citizens, and subject, like all The MAY 15, 1830.] Removal of the Indians. [H. of R. 's others, to the laws of the State. But, since the reversal of winter, to the nearest thicket, for refuge from the tomathis case, the opinion of Chancellor Kent is considered to be hawk?--when they looked back upon the conflagration the law of the State. How much aid, then, to the doctrines which lighted up the pathless forest around them?If of the report of the Committee on Indian Affairs can be when they returned to the burning ruins, and saw the the drawn from the course of judicial decisions in New York, doorposts of their dwellings sprinkled with the blood of even since the passage of the act of 1822, I leave to you their children, and the remnant of their families swept F to determine, and will dismiss this part of the subject with into captivity?--or when they gathered from the scorchthe remark, that, if by the public or conventional law of ing ashes the calcined relics of all they had held dear on st that State, or the Union, whether arising from treaties, or earth? If we cannot justify that extremity of retaliation founded on any political principles of our system, the Se- to which human nature, in such circumstances, could be 1 neca nation held their sovereignty in 1822, that act has not, tempted, let us be just enough to their memory to forand could not rightfully take it away. bear to reproach the errors of their social affections. I shall cheerfully concede that we are to look to the acts Why, sir, do we not go back, and bring up for our exof the colonies, and especially of the States and the Federal ample, at this day, other laws of our own, or other counGovernment, to determine the rights of soil and sovereign-tries, more gravely enacted, and quite as rigorously enty claimed by the Indian nations; but I shall be compelled forced? We might, perhaps, be able to justify the practo detain you longer than I should have done, had the Com- tice of making slaves of the Indians; or, if we should be mittee on Indian Affairs claimed with less confidence, and inclined to go back still further, we could justify the putgiven us better proof that the fundamental principle that ting of prisoners of war to death. It is not half a century the Indians had no right to either, had never been abandon- since the African slave trade was generally condemned by ed, either expressly or by implication. Whatever may the laws of christian Governments. I should be very sorry have been the public law before the revolution, it would to believe that the Government was driven to justify the 3be quite sufficient to settle this question conclusively in passage of this bill under any examples like these, or favor of the Indian nations, by showing what the acts of that we should be forced to confess that we and all the the old Congress, the States, and the Federal Government world have made no advance, for two centuries, in polihave been, from the declaration of independence to the tical science, or the morality of the code of public law by represent time. But, as we find upon our tables a collection which enlightened nations are willing to be governed. I of colonial laws, some of which were passed nearly two hope that, during that time, our society has gone forward centuries ago, I will trouble you with some reflections that and not backward. We boast much of our improvement have occurred to me on this mode of disposing of the diffi- in other things, and why should we not be willing to adculties thrown in the way of gentlemen by the history of mit it in this? I protest, at least, against going back to later times. I cannot agree that we are to go back quite the time when the fires of Smithfield were lighted up, so far to ascertain the public or conventional law of the and I cannot consent to take the expulsion of the French Federal Government, or to look beyond the revolution for from Acadia as a fit model to illustrate our duties to the the political law of the States. This collection of laws Cherokees. We had better come down to later times-certainly contains some, chiefly of an early date, which may after christianity had shed its pure light more clearly now appear to be somewhat whimsical; and there is no upon the world--after the colonial Governments had bedoubt that many could be found, which would show less come better established--the code of public law better regard to Indian rights, and perhaps to the common claims considered, and the duties of nations better understood of humanity, than some of these. There may be much to and defined. It will be quite as well for us to see what disapprove, and much to lament, in our early history. our own Governments have done in the last fifty years, and cannot say that I have found much instruction from the ex- ask ourselves if we can honorably repudiate this portion tracts laid before us of these early laws of the colonists, of our history. We may, perhaps, find ourselves so hemand I certainly feel no gratification that they have been med in on all sides, that this question is not to be debated rescued from oblivion, and placed among the documents at this day. If it should turn out to be so, it will profit of this House. I am sorry to see them here. It would us very little to know that, in a winter's search among the not, however, be difficult to account for the origin of archives of one of our historical societies, we have been them, without attributing them to a spirit so unfavorable able to find a single treatise, written a century ago, to to the claims of the native inhabitants of this continent, prove that the Indians never had any rights at all on this as the Committee on Indian Affairs seem to have assumed. continent. I have looked into that work of the Rev. It would be rather remarkable if we could show that In- John Bulkley, from which the gentleman from Tennessee dian rights were always held in high respect, or that In-read us an extract; and it is very true that it makes out dian treaties were always strictly observed. We must the whole case. The learned author zealously maintains make great allowances for the early colonists. They were that the Indians were in a state of nature; that they had settled here at a great distance from Europe. They were no homes, and no Governments, and, consequently, no little regarded, and altogether unprotected, by the mo- more right to the soil or sovereignty, than the anima's ther country. Their vicinity to these fierce and warlike which they followed in the chase. This is the substance nations often produced dangerous collisions with them. of his argument; and he undoubtedly convinced himself A state of exasperation sprung up, which led to merciless of the truth of his hypothesis. But to prove that against wars and bitter and implacable resentments. The French our treaties, is to prove nothing, unless it be shown that were on the other side of the Indians, and sometimes ex- we are in a state of nature, too; and that men in a state of cited them even to the extirpation of the English colo- nature are released from the moral law of nature. It nists. If we consider what the state of society was, and would be much easier to get rid of our treaty obligations, how strongly the principle of self-preservation is implant- by assuming, at once, that christian nations were not ed in the human heart, we should rather wonder that the bound to keep their faith with infidels; and plentiful casuistCommittee on Indian Affairs had not been able to find ry can be found for that, too. This matter is not to be dismuch more in our early history to sustain their positions. posed of in that way; nor will it be hereafter. It is too Was it to be expected that our fathers were to be more late for us to deny our claims to be considered a civilized than men in the critical and afflicting situations in which people; that we are willing to acknowledge the public we know, from history, they were often placed? Would and social law of the human family, and to be bound by you look for calm philosophy in men whose familics were that code of universal morality which is confessed by awakened from their pillows, at midnight, by the yell of every Government which feels it to be honorable to stand the war-whoop--when they fled naked, in the depth of within the pale of christian nations. It is not a trifling H. of R.] Removal of the Indians. [MAY 15, 1830. thing for us to start any principles, at this day, on which ever faith or place they are educated, might yield obewe may claim to absolve ourselves from the obligation of dience unto him. He hath subjected the whole world to that faith which we have pledged in all our Indian treaties. his jurisdiction, and commanded him to establish his resi The question is too solemnly settled. If it was now an original question, and a mere speculative inquiry, we might treat it as a theme for the exercitation of ingenuity with a better grace, and shelter ourselves from the imputations which may follow, under some more plausible apology. But we cannot approach our Indian treaties on any side, without finding them secured by sanctions which cannot safely be despised. dence at Rome, as the most proper place for the govern ment of the world. He likewise promised and gave him power to establish his authority in every other part of the world, and to judge and govern all christians, Moors, jews, gentiles, and all other people, of whatever sect or faith they may be. To him is given the name of Pope, which signifies admirable, great father, and guardian, because he is the father and governor of all men," &c. I fully admit, that, shortly after the discovery of America, "One of these pontiffs, as lord of the world, hath made the principle became established, by European nations, a grant of these islands and of the terra firma of the occan that they held their dominions here, as among themselves, sea to the Catholic King of Castile, Don Ferdinand and by the right of discovery; and that this doctrine must be Donna Isabella, of glorious memory, and their successors, considered as settled at this day, let its origin have been our sovereigns, with all they contain, as is more fully exwhat it may. We should hold a maxim of such long standing pressed in certain deeds passed upon that occasion, which in the greatest respect. Some inconveniencies may have you may see, if you desire it," &c. He then requires followed from uncertainties in the history of the early dis- them to acknowledge the Pope and the King as the lord coverers, and the difficulty of its application to the claims of "these islands;" to embrace their religion, and submit of nations, as the population advanced into the interior. to his Government, and concludes thus: "But if you will But, from the very nature of the subject, any rule would not comply, or maliciously refuse to obey my injunctions, probably have led to some collisions. This may have then, with the help of God, I will enter your country by been considered the best; and almost any rule was pre- force. I will carry on war against you with the utmost vio ferable to none. It was clearly better for England, and, lence. I will subject you to the yoke of obedience to the probably, for France, too, to establish this rule, than to church and the King. I will take your wives and chil submit the question of title to the decision of the Pope, dren, and will make them slaves, and sell and dispose of who claimed all undiscovered lands as his spiritual patri- them according to his Majesty's pleasure. mony, and parcelled out his unknown dominions on maps your goods, and do you all the mischief in my power, as which furnished him nothing but degrees of longitude to rebellious subjects who will not acknowledge or submit define the extent of his earthly donations. We must con- to their lawful sovereign. And I protest that all the bloodsider, therefore, that this question of priority in right is shed and calamities which shall follow are to be imputed to be settled by priority of discovery. Occupation does to you, and not to his Majesty, or to me, or to the gentlenot seem to have been, at first, considered as strictly essen- men who serve under me. And as I have now made this tial, though it was generally taken symbolically. It is declaration and requisition unto you, I require the notary probable, too, that this rule had no reference originally to here present to grant me a certificate of this, subscribed in any question growing out of the title of the natives. The proper form." So much for the Spanish title. morality of such an application of it would have more seriously merited the sarcasm of one of our poets, who has said, "The time once was here, to the world be it known, I will seize The state of feeling in England, too, was favorable to the same code of public law for America. Rymer has given us at large the commission of Henry VII to the Cabots, from which I have taken an extract. This king was a near family connexion of Ferdinand of Spain. The As the spirit of discovery advanced, the claims of the na- tenor of this commission is to sail with the King's ves tive occupants, who might be found here, presented an- sels, "ad inveniendum, discooperiendum, et investigandum other question. The voyages of Columbus had shown it quascunque insulas patrias, regiones sive provincias gentilito be probable that every part of the new world was peo- um et infidelium, in quacunque parte mundi positas qua pled. It was necessary to find some semblance of prin- christianis omnibus ante hæc tempore fuerunt incognita." ciple to dispose of their title. In an age which was over- They are then commanded to take possession of their disshadowed with superstition, and when the human mind coveries. The Latin is as barbarous as the doctrine. No was darkened by bigotry, it was not found difficult to translation could do it full justice. It is not improbable that silence conscience, end even enlist the religious feeling this paper was the work of Empson and Dudley, who of mankind in favor of the schemes of avarice and ambi- were the confidential advisers of Henry VII. Their chation. They were, therefore, cloaked under the garb of racters are well known to all who have looked into any religion. Ojeda's proclamation will show us the nature of history of that period. The kingdom is said to have never the claims of Spain to the soil and sovereignty of South been in a more disreputable condition than it was at that America against the natives. time. No man was safe; and this reign is said to have "I. Alonzo de Ojeda, servant of the most high and pow-been chiefly distinguished by its rapacity and meanness. erful kings of Castile and Leon, the conquerors of barba- The successor of this king rewarded the crimes of Enprous nations, their messenger and captain, notify to you, son and Dudley by a bill of attainder. and declare in as ample form as I am capable, that God James I made some improvements upon these examples our Lord, who is one and eternal, created the heaven and of his predecessors. A king who held his notions of prethe earth, and one man and one woman, of whom you rogative at home, was not apt to respect the rights of those and we, and all the men who have been, or shall be, in the abroad very highly. He commissioned Richard Penkevel world, are descended. But, as it has come to pass, through to sail on a voyage of discovery, and took care to make the number of generations, during more than four thousand "assurance doubly sure" to the lands of the natives of years, that they have been dispersed into different parts of America. He prescribed in Penkevel's commission the the world, and are divided into various kingdoms and pro- tenure by which the lands were to be held, before the vinces, because one country was not able to contain them, voyage was even commenced, declaring that they should nor could they have found in one the means of subsistence be held "of Us, as parcel of our manor of East Greenand preservation; therefore, God our Lord gave the wich in Kent, in soccage and not in capite." It was on a charge of all those people to one man, named St. Peter, notion derived from some commission or charter of that whom he constituted lord and head of the human race, sort, that the right of Parliament to tax America was mainthat all men, in whatever place they are born, or in what-tained about the time of our revolution, on the ground MAY 15, 1830.] for that we were represented in the House of Commons as has since so highly improved the moral law of nations. parcel of the county of Kent. Now, sir, it is useless for The spirit of avarice was excited, and the thirst of domigentlemen to puzzle themselves with learned theses and nion was tempted, by the developments of the resources ingenious disquisitions, to show that the European nations of the new world. Grants and charters followed, and would have been justified in expelling the natives from were often dispensed as rewards to favorites. But, sir, their lands, on the ground that they were in a state of na- whatever may have been the theories on which the Goture, and that man in a state of nature has no right to any vernment at home asserted its supremacy, I deny that our thing which he holds--not even to his life. King Henry, English ancestors, who first colonized these States, ever James, Ferdinand, and the Pope, set up no such doctrines countenanced that disregard of Indian rights, or carried themselves. They doubtless asserted the best which they into practice that system of injustice to the native inhabitcould find, and ought to have the privilege of being heard ants, which has been asserted in the report of the Comfor themselves, and justifying themselves upon their own mittee on Indian Affairs. On the settlement of the counprinciples. We may search as closely as we may into the try, one of two courses was to be pursued--to deny altohistory of the claims they set up, and shall find at last that gether the claims of the Indian occupants for any purpose, they were defended solely on the ground that these were and to dispossess them by violence, under any plausible or heretic and infidel countries, and that the claims of here- convenient pretext, or to treat them as holding a qualified tics and infidels to the earth were entitled to no regard in right in the soil, and extinguish their title honestly by purpreference to Catholic dominion. But as the age of su- chase. We have already seen, in the proclamation of Ojeperstition and bigotry passed away--as prerogative be- da, the system pursued by Spain. The natives were treatcame weakened, and popish supremacy fell into disrepute ed as fit for spoil only. The history of Spanish America -as the minds of men became enlarged, and the public is the most disgraceful tissue of injustice, cruelty, and perlaw improved, better principles were established. Before fidious villany, which stains the annals of christendom; the beginning of the last century, moral and political sci- and Spain has suffered for her crimes the retributive jusence had become too far emancipated from the supersti- tice of Providence. But, to the honor of our ancestors, tion and intolerance of the times of Alexander VI, as well history has given us no North American annals like these. as the Tudors and Stuarts, to sanctify any longer the vio- They held the doctrine of discovery so far as to protect lences which had been committed in the name of religion the chartered rights of the colonies against the encroachand prerogative. Grotius had long before given the true ments of others, but they never sanctioned any system foundation of all original title. "Primus acquirendi mo- which left the Indian nations unprotected against themdus est occupatio eorum qui nullius sunt." We have the selves, and fit subjects for lawless plunder. They were right to take that which others have not already appropri- men who acted up to their profession before the world. ated to themselves, but we have no right to take away our The honorable gentleman from Tennessee, in asking where neighbor's property. This was the rule laid down by that we should look for the monuments of William Penn, digreat civilian and christian moralist. Then it came to be rected us to the noble institutions and enviable prosperity held by some that Indian occupation was no occupation of Pennsylvania. This is all very just to the name of any purpose-that it was the state of nature, without Penn, but it falls short of full justice to his memory. I the security of natural law. Some were so very liberal as can tell him where he can find another monument to the to admit that the Indians were men, but held that they fame of that excellent man. Vattel has perpetuated his roved, over the earth as vagrants and outcasts of the human name to all ages, and in all nations, in that work in which family, with no more title even to what they actually culti-he has commended to all mankind the invariable respect rated, than the brutes that fled before them, or the winds in which William Penn and the puritans of New England which passed over the forest, and that they were fair sub-held the right of the native inhabitants of America to their ects for force or fraud for all who might find it to be their native country. It is very true that, in the colonies, the interest to ensnare or hunt them down. There were John Crown was considered as the only legitimate source of title Bulkleys before 1734, who held to this doctrine as stoutly for its own subjects, and in most of them the lands were as John Bulkley of Colchester. But I doubt if any other generally held under patents from the Crown, or the colotreatise like this can be found in the whole history of New nial Governments. This was early established, and conEngland. Why these people were, above all others, to tinues to be maintained to this day. The discoveries had be excluded from the social law of mankind, was not as been made under commissions from the Crown, and pos closely inquired into as it might have been. It was true session was taken in its name. As between the King and that their kings and sachems had few or no prerogatives. his subjects, the lands were treated as the domain of the They were generally governed by councils assembled Crown, and Indian purchases were not admitted against from their whole nation. But if the head men and war-the grants of the King or his title. He was considered, in riors proved to be sometimes refractory, the kings had no theory, in the light of an original fœdal proprietor of the power to send them to Tower-hill or Tyburn. They light-country. It was, therefore, said, that what otherwise ed up no fires for heretics, and never sent their own pro-might have been called at the bar of the courts the seisin phets to the stake-they roasted their enemies only. They of the Indian nations, was nothing more against the Crown were ferocious and merciless in war, but they had no St. than a naked occupancy. By the original title of the coloBartholomew days. They held large tracts of uncultivat-nists, under their charters, they held in fact under the ed country, but they had no laws of the forests--it was King, as the lord paramount of the realm. We hold this neither death nor transportation for a starving man to take doctrine ourselves, so far as it applies to our Governments; a deer; and it is probable they never heard a discussion on but we claim no supremacy over the Indian right, even in the morality of spring-guns. They believed in witchcraft, theory, because they are to be treated as in a state of naas well as some others of their fellow-men--and in that ture, and without governments of their own, which we they came somewhat nearer to a certain king, who sat in his closet with his treatise on demonology open before him, and conveyed away their country by parchment and green wax, before he knew where it was to be found. We cannot deny that the European Governments originally held the rights of the Indian nations in very little regard. There were great temptations to treat them lightly, and they were not looked upon with that deference to the Sounder principles of justice, and that humanity which have never acknowledged; or as heretics and infidels. Instances may doubtless be found in our history, (and the committee have been able to collect a few,) in which there was occasionally collision between some of the colonists and the Indian nations on the point of title. It is probable that, in some few cases, injustice was done; but the practice of the colonists settled down at last in favor of the sanctity of the Indian title to their lands. The committee have suggested that we should not give H. of R.] Removal of the Indians. [MAY 15, 1830. much weight to "the stately forms which Indian treaties chase from the Indian nations. This system, sir, was have assumed, nor to the terms often employed in them," conscientious in itself, and founded in good morals. We but that we should rather consider them as "mere names" may here stand up boldly, like honest men, before all and "forms of intercourse." If treating these Indian na- mankind. I am not willing to blot out these fairest pages tions as proprietors of a qualified interest in the soil-as of our history. I will not consent that these proud monucompetent to enter into treaties-to contract alliances--to ments of our country's honor shall be defaced. I would make war and peace--to stipulate on points involving not darken the living light of that glory which these il and often qualifying the sovereignty of both parties, and lustrations.of the justice of our ancestors have spread over possessed generally of political attributes unknown to in- every page of their history, for all the Indian lands that dividuals, and altogether absurd in their application to avarice ever dreamt of, and all the empire which ambisubjects, is nothing more than "mere names" and "state- tion ever coveted. ly forms," then this long practice of the Crown, the Colo- The administration appears to have conceded to Geor nies, the States, and the Federal Government, indeed, gia the right of sovereignty and soil which she claims, in proves nothing. Words no longer mean what words im- the report of 1827, over the Cherokees and their lands, port, and things are not what they are. But these treaties under the impression that such was the operation of the have been looked upon as something quite substantial, in treaty of 1783. The Secretary of War has placed it on the time of them. Things as firmly settled as these, are that ground, and assumed, in that respect, the principles not to be easily moved. This most honorable portion of of the Georgia report. We have never considered the our history is not to be obliterated by a dash of the pen. treaty as any thing more than the acknowledgment of our From a period not long anterior to the revolution in Eng-independence, and we took the rights of the Crown by land, there are numerous Indian treaties made by the accession. The King admitted that he treated with us as agents of the Crown, as well as the Colonies. These were a power already independent. He granted us nothing of doubtless made with the full approbation, and in many in- our sovereignty. He merely relinquished, for himself and stances under instructions or advice from the Crown offi- his successors, his claim to the government, propriety, cers. They have been acted upon and acknowledged, in and territorial rights over the country. We do not claim a way that puts all question as to their obligation at rest. these from his gift. The treaty took no such form. We The Crown and the Colonies found it to be their interest became independent, in fact, in 1776, and our national cato take that course; the motives which led to it were va-pacity came into existence at that time. We were then rious, and are quite obvious, even to a careless reader of at liberty, as an independent power, to adopt any policy or our history. As long ago as 1684, we find a "definitive assume any principles we believed to be just in regard to treaty" made at Albany, between Lord Effingham, then the Indian nations It is too late to inquire whether we Governor of Virginia, and Colonel Dongan, of New York, might not have began differently. We must be bound with the Five Nations. One of the chiefs said to them on now by the system which we in fact adopted, and our inthat occasion, that "this treaty had spread so far in the quiry should be to know to what principles of public law earth, that its roots would reach through the whole land; we are pledged before the world, and in good faith, to and if the French should tread upon the soil anywhere, abide by in our conduct towards the Indian nations. What the Indian nations would immediately feel it." They doctrines, then, have been assumed-acknowledged-afkept this treaty faithfully, and the Colonies owed their se-firmed-established, and acted upon for almost half a cen curity, for many years, to it. Shortly before our revolu-tury on our part, and trusted to by those we have dealt tion, the principle may be considered to have been so far with? Before you made the treaty of 1783, you had acsettled, that these nations might well claim to be invested knowledged the qualified sovereignty of some of these nawith the capacity to contract in that way, as qualified so- tions. In 1776, we guarantied to the Delaware nation vereignties. The doctrines held in the time of Henry "all their territorial rights, in the fullest and most ample VII and the Stuarts, were completely changed before manner, as it had been bounded by former treaties." The the declaration of independence. On the 8th of April, treaty states that the article was inserted to obviate the 1772, General Gage issued at New York, "by order of false suggestion which our enemies had, by every artifice the King," a proclamation, fully recognising the obliga- in their power, inculcated upon all the Indians, that the tions of the Crown under its treaties with the Indian na- United States intended to extirpate them, and take possestions. I do not mean, sir, to be understood to say that sion of their country. In the treaty of 1804 they were acthis acknowledgment of qualified sovereignty would have knowledged to be the "original proprietors," and you been admitted by the British Government to the full ex- then admitted them to be the "rightful owners" of the tent that we have carried it since. We found it so far lands there referred to. An arrangement was provided, settled at the period of our independence, that we open-in some of your treaties, for allowing the Delawares and ly adopted it as the public law for ourselves. We have Cherokees deputies to the old Congress. I could refer ever since placed our relations with the Indians on that you to numerous treaties, before and since the treaty of footing, and they are not to be disturbed now on any fan- 1783, which conclusively repel the notion that the Indians ciful hypothesis. As to their right to the soil, however, were transferred to us as serfs of the Crown. It would that was long before solemnly settled in practice, and be an unpardonable waste of time to examine them, or a has remained so for a period too long to be now ques- fiftieth part of them. They include almost every Indian tioned. New England is held under fair and honest pur-nation within the States. The old Congress acted through chase from the natives. A very small part of it was ever out on the principles which I have stated. The constituclaimed by actual conquest. Pennsylvania and New York tion has put to rest a question which arose out of the power were acquired in the same way. Mr. Jefferson says, in of Congress under the confederation, and shows how his Notes, speaking for Virginia, That the lands of this largely it was intended to vest the management of the Incountry were taken from them by conquest, is not so dian affairs in the new government. The articles of congeneral a truth as is supposed. I find in our historians federation had narrowed the power of "regulating trade and records, repeated proofs of purchase, which cover and managing all affairs with the Indians," by confining it a considerable part of the lower country, and many more to such as were not members of any of the States, and prowould doubtless be found on further search. The upper viding that the legislative right of any State within its own country we know has been acquired altogether by pur- limits should not be infringed or violated. The constitu chases, made in the most unexceptionable form." There tion omitted these restrictions. Mr. Madison, in the is not a foot of land now held by Georgia, for which we Federalist, speaking on this point, says: cannot produce, from authentic history, her title by pur- "The regulation of commerce with the Indian tribes is |