On "The Report of the Joint Committee on the state of the Republic," in the Legislature of Georgia, on the subject of the Cherokee Lands; purporting to prove the absolute jurisdictional right of the said state to the same.
From this subject, which the Committee denominate "gloomy" they turn to the second branch of their inquiry and tell us for the first time, that they are able to establish in the state of Georgia, a good, legal, and perfect title to the lands in question, and that they have the right, by any means in their power, to possess themselves of them. How unfortunate it is to the contracting parties, that this right was not thought of in 1802, when Georgia "sold her birth-right for a song." When in the history of civilized diplomacy, she afforded to the world the remarkable spectacle of purchasing her own lands! The Committee are unfortunate in the selection of a position, which is truly "novel", but at war with the nature of trade, as conducted at the present day.
In the next place, they call our attention to the discovery of America, when it was the pratice [sic] of discoverers to take possession of vacant lands for their respective sovereigns, under whose auspices and flags they sailed. "The discoverers," say they," asserted successfully the right of occupying such parts as each discovered, and thereby established their supreme command over it, asserting their claim both to domain and empire." "By domain" say they, "we mean that by 'virtue of which a nation may use the country for the supply of its necessities, may dispose of it as it thinks proper, and derive from it any advantage it is enabled of yielding;'-and by 'Empire, we mean the 'right of sovereign command, by which the nation directs and regulates, at its pleasure, everything that passes in the country.'"
This lucid explanation of "domain and empire" is taken from Vattel's Laws of Nations. It affords me pleasure that the Committee consulted this work, which is open to me also for the same use. In our Courts of justice, when a witness is called to bear testimony in either a civil or criminal case, he is called upon, on oath to tell the whole truth, and nothing but the truth, in the case depending. The witness is not called upon to tell a part of the truth, but the whole truth. As Vottel is the text book, let us ask him a few questions on the subject of our discussion.
1st. You have satisfactorily explained the meaning of domain and empire, tell us in what situation and when can a nation assert these rights to any country?
Answer. "When a nation takes possession of a country that never yet belonged to any other, it is considered as possessing the empire or sovereignty, at the same time with the domain."
2d. Georgia claims the right of empire and domain over the whole of its chartered limits, and over lands in the possession of the Cherokees;-tell us how far a nation have right to arrest their domain and empire, or have they the right to assert to as much space as they please?
Answer. "The whole space over which a Nation extend its Government, is the seat of its Jurisdiction, & called its Territory."
3d. The Cherokee Nation is composed of a number of free families, spread over a district of country which has been held by them from time immemorial; are they in legal possession of it, and how far does their right of command extend?
Answer. "If any free families over an independent country come to unite in order to form a nation, or state, they altogether possess the empire over the whole country they inhabit. For they already possess each for himself the domain; and since they are willing to form together a political society, and establish a public authority, which each should be bound to obey, it is very manifest that their intention is to attribute to that public authority, the right of command over the whole country."
4th. Is there any difference in the portion of rights possessed by different Nations to land in a state of nature?
Answer. "All mankind have an equal right to the things that have not yet fallen into the possession of any one; and these things belong to the first possessor."
4th and last. When therefore can a nation take lawful possession of a country?
Answer. "When a Nation finds a country uninhabited and without a master, it may lawfully take possession of it, and after it has sufficiently made known its will in this respect it cannot be deprived of it by another."
If then the right of the Cherokees to their country, is to depend on the laws of Nations, the premises of the Committee are not supported. In vain will a Nation disposed to assert rights by force, appeal to this law. The Cherokees were settled in towns over this territory, before a white man ever appeared on these shores, and when he did appear and made discovery, he only discovered the Cherokees in peaceable possession of a country,
"There is another question to which the discovery of the new world has given rise. It is asked if a nation may lawfully take possession of a part of a vast country, in which there are none found but erratic nations, incapable by the smallness of their numbers to people the whole?"- (See Vattel p. P58)
Our Author is of the opinion that such wandering tribes were never designed by nature to exclude other nations from a participation of the benefits of a vast extent of country, appropriated by the Creator for the subsistence of the human species. He admires the New England Puritans, who notwithstanding their being furnished with a Charter from their Sovereign, purchased of the Indians, the lands they resolved to cultivate. This laudable example was followed by William Penn who planted a colony of Quakers in Pennsylvania. The judgment of a man disposed to obtain truth, must yield its conviction to the power of such reasoning. The Indians in an erratic or wandering state could have no right to domain and empire, over a vast Territory of country, over which they had seldom chased the bounding stag, or traced the furious bear. The earth was made for the benefit of mankind. If, then wandering Indians were not allowed to monopolize such countries, they yet had a right to their share, which the sword of the Invader could not lawfully take away. But there is a question whether the Cherokees could ever have been properly called an erratic nation. Let us look to history for information.
"It may be remarked that the Cherokees differ in many respects from other Indian nations, that have wandered from place to place, and fixed their habitations on separate Districts. From time immemorial they have had possession of the same territory which at present they occupy. They affirm that their forefathers sprung from the ground, or descended from the clouds upon those hills. These lands of their ancestors they value above all things in the world. They venerate the places where their bones lie interred, and esteem it disgraceful in the highest degree to relinquish their depositories. The man that would refuse to take the field in defence of these hereditary possessions, is regarded by them as a coward, & treated as an outcast from their nation." (See History of South Carolina and Georgia.)
Such was the character and situation of the Cherokees at the settlements of S. Carolina & Georgia. We need not say anything of their present condition, and character, more than this, that they are here yet on the same ground, and on the same hills, excepting that portion of it which they have relinquished to the U. States by treaty.
But it is stated by the Committee that as the earth was made equally for the benefit of the human species, "Great Britain no doubt on these principles occupied and colonized the Province of Georgia, the limits of which, anterior to the Revolutionary war [sic], were defined, and made to extend from the Atlantic Coast to the Mississippi, and from the 31st to the 35th degrees of North Latitude. The whole of this territory was made to form a provincial Government thus exercising the highest and most unequivocal act of sovereignty?"
I have proved that a nation cannot exercise or lawfully assert the right of sovereignty over a country which it has not settled. And we are yet to learn from the Committee in what manner and at what time Georgia ever exercised its unequivocal act of sovereignty over the limits first mentioned. The jurisdiction of a state has terminated and most terminate precisely where the settlements or habitations of its subjects extend. Anterior to the Revolutionary War, the limits of Georgia were scarcely half as large as they are now, notwithstanding the extensiveness of the Royal Charter, capable only of witnessing the folly that characterized the administration of Great Britain, which at length effected the separation of its transatlantic provinces from their political connexion [sic] with the Mother Country.
"In the exercise" say the committee, both of domain and empire on the part of Great Britain, certain portions of territory were reserved to the use of the Indians, and the Indians themselves were declared to be under the protection of Great Britain, and the lands reserved were declared to be under the sovereignty, protection and domain of that Government."
The early history of Georgia will enable us to understand the true state of the subject in regard to the Indians and Georgia. A certain corporation in England, from motives of humanity, attempted to colonize Georgia by sending over, at their expense, a certain population, who were selected as fit objects of charity. In 1732 they arrived at Savannah, under the direction of General Oglethorpe of worthy memory. After building huts to shelter his little colony, his first care was to secure their safety by a treaty of peace and friendship with the Creek Indians, who lived in the country, and purchased lands from them. He found an Indian woman, the wife of a trader, who spoke English and Creek, & employed her with a handsome salary as an interpreter.--"By her assistance, says history, he summoned a general meeting of the Chiefs, to hold a Congress with him at Savannah, in order to procure their consent to the peaceable settlement of his colony-fifty Chiefs were present. After Oglethorpe represented the power and wealth of Great Britain and the benefits that would arise to the Indians from a connection and friendship with them, he went on to say,--"as they had plenty of Lands, he hoped they would freely resign a share of them to his people who were come among them for their benefit, and instruction. After having distributed some presents, which must always attend a proposal of friendship and peace, and agreement was made."--This cannot be misunderstood.
The Cherokees living contiguous to South Carolina, their intercourse of treaty and trade was pretty much confined to it, and through its official functionaries to Great Britain. These treaties particularly designated boundaries and regulation for a rule of intercourse between the Cherokees and England. The Cherokees were bound to hold friendly intercourse with the subjects of England, and to fight her enemies, and trade only with her; in consideration of which England obligated herself to protect them from all enemies, and to trade with them on the most reasonable terms.--When therefore, the United States declared themselves Independent, and Cherokees, in alliance with King George, & under his protection, raised the warwhoop and hatchet to reclaim his rebellious children to his power. The children after a severe struggle prostrated the power of the mother, England, in America.--Always perfidious to its Indian Allies, Great Britain secured to herself a cessation of hostilities by a treaty of peace, regardless of her red children. Thus did she relinquish her protection to the Indians, in the day of adversity, in time of both trials and peril, when the woods bore marks of blood shed in her cause by these children of the forest. The states had surrendered their rights of regulating trade, making treaties or declaring war to the United States in the adoption of a constitution. The Indians secured an honorable peace with the United States, in General Washington's administration, by treaty which guarantied to them their lands, and adopted measures to promote their civilization. Great Britain, whatever rights she may have had to the Indians, had forfeited them forever, and as the colonies had destroyed their connection with the Mother Country, the Indians were thrown in their original condition, unencumbered by treaties, capable of fighting and perishing on their lands, or of making treaties with those who alone had the power, the U.S.
If the Indians were naturally or constitutionally incapable of making treaties, or contracts, as some would have it, why was the incompetency not mentioned before, and their treaties resisted, and rejected. If any time could be proper, the proper time would have been in their savage state, to experience the misfortune rather than now, after being tantalized with the hypocritical language of friendship and offers of Civilization and Religion to have their rights and liberties crushed in the cold embrace of Iron power. If we consult the history of the different states, their lands for the most part were obtained by peaceable purchase, unless obtained afterwards by conquest, but never then, unless the Indians had given occasion by acts of hostility. I speak of North America. Banished far from memory, be the Spanish blood hounds, Cortes [sic] and Pizzaro, as unfit for any human reference.
When the Olive Branch of peace and good will to men is seen at every door; when a new era has commenced, and the world is making the sublime effort of relieving nations yet in darkness, to behold the splendor of the rising happiness of nations in the enjoyment of liberty and religion, we may well be astonished to hear an inglorious doctrine, that "force is right" sent abroad from a quarter, that we have been taught to believe, would esteem the doctrine in the greatest abhorrence. Is it possible, that any citizens of the United States, have so fallen from the exalted virtue of their ancestors, as to be in reality capable of believing in 1828 "that force is right!" I have heard of a man, that is noted for talking and nothing more, who represents in Congress a certain District adjoining this nation, that recommends the removal of Indians to the paradise country at the setting sun & to remove them without their consent, as he says they are in the act of destroying themselves by drinking poison, and he wishes to save them from extermination. What is sugar to Indians is gall to his palate, and why? because the Cherokees happen to be in possession of a fine Country, and he happens to violate the 10th Commandment.
The Report of the Joint Committee closes with a string of Resolutions, the substance of which is that they, Georgia, will make the last solemn and awful appeal to the United States, for the fulfilment [sic] of their promise, instructing them to offer to certain Indians, if nothing else will succeed, reservations of lands, for life, for a time, or even in fee simple, for the attainment of the object; and if all this will not do, and if the Cherokees will shut their ears to the voice of wisdom, justice and friendship &c. then they recommend to the next Legislature to make preparation to take the land by any means in their power.
In the black catalogue of Infamy, where characters have been destroyed by avaricious inducements, the Traitor Arnold and Judas Iscariot, possess a horrid distinction. Perhaps a third may be added in consequence of the said reservations. But if there is a Cherokee, so lost to patriotism and virtue as to fall before such a bribe, he has yet to be thought of and to be found.
All Nations have their seasons of prosperity and adversity. Mighty empires, that figure with amazing lustre on the page of history, are now silent in awful oblivion. And the men that wielded the sceptres [sic], where are they? "Dust thou art, and unto dust shalt thou return." and shall I quake with fear at threatening politicians? Shall sweet sleep escape my eyelids at prospect of annihilation, when it is my fate to die? No! Let me in civil peace resign my fate to him who rules the world, and who has the Government of the strong and the feeble.
"A time may come, when summer's sun
And winter's blast may beat uncheck'd
On my defenceless [sic] head, and none
Be with me when my fortune's wreck'd?
But while I bear and unsold heart,
And self reproach remaineth [sic] dumb,
Let wealth and all her train depart;
That time's not fearful:-let it come."