and Indians' Advocate
Wednesday, November 18, 1829
Vol. II, no. 32
Page 4, col. 1a-3b
From the National Intelligencer.
The next inquiry will relate to the tile 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 a 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 Pacific 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 origin al 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 very idea that they could divest strangers of their rights is utterly preposterous.
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 continent. But 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 natives by treaty, the privilege of the commencing their settlements.- Whenever they afterwards got in 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 implied in them, could not direct the Indians of their rights.
The charters of Georgia are cited in the famous case of Fletcher vs. Peck, (6 Cranch, p. 87) & 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 1-2 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 anything 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 natives between the Atlantic and 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 was also 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 lands 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 settlement 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 previously exercised. It is to be understood, however, that any modifications of her power, which Georgia 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 it is 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 most 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; & 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?
As to the power of Georgia within her own limits, some remarks will be made in a future number.