JUDGE CLAYTON'S OPINION
THE STATE vs.CUNATOO
A CHEROKEE INDIAN, Committed to jail upon a charge of digging gold in that part of the Cherokee Nation not as yet ceded but attached to the county of Gwinnett, for the purposes of civil and criminal jurisdiction.
The prisoner was brought up by Habeas Corpus, and his discharge moved for upon three grounds. 1st. Defect of commitment. 2d. There was no law making the offence criminal; and 3d. If there was, it was contrary to the Constitution of the United States.
There is no force in the first objection, and consequently it needs no consideration. In the 2d the Court admits there is some room to doubt. And here it will take occasion to say that as this is a very important question, involving rights of the highest character, both in relation to the State and the Indians, and as there should exist the utmost harmony between the Legislative and Judiciary
branches of government, both aiming to discharge, with fidelity, the high obligations committed to their trust, and seeking to accomplish a common object, the welfare of the community, it will be strictly proper and evince a becoming respect for the Legislature, for the Court to refer the act back to that body with its views candidly expressed, on both of the last mentioned points with a hope that such a course may prevent any future collision. And this is considered the more discreet and necessary, as this case, under its present arrangement, is not of such pressing urgency as to require a hasty decision.
Upon the 2d ground then it will be necessary to bring the act of the last Legislature into view. The substance of its caption is 'to take possession of the mines within the Cherokee Nation, and to punish any person or persons who may be found trespassing upon said mines.'
The preamble of the law asserts that the mines 'are of right the property of Georgia' and states that 'great waste has been committed by the trespasses and intrusions of numberless citizens of this and other States, in digging, taking and carrying away large quantities of gold from said mines-for remedy whereof, Be it enacted 'c.' The 1st section authorizes the Governor to take possession of the mines and to employ a force to protect them 'from all further trespass.'
The 2d section appropriates a certain sum of money to carry into effect the foregoing section, and the third section declares that 'for the better securing said mines from trespass, that if any person or persons shall be guilty of digging for gold, silver, or other metal upon said mines, or who shall take from or carry away any gold, silver of other metal from any of the said mines, unless authorized by law, he, she, or they shall be guilty of a misdemeanor, and upon conviction thereof, shall be sentenced to hard labor in the Penitentiary for and during the term of four years.'
The 4th and 5th section inflicts a like punishment upon any person who 'shall employ any white man, Indian, negro or mulatto to dig or carry away any gold,' and provides that the act is not to be so construed as to confine a slave into the Penitentiary.
The 6th section confiscates all slaves and other property employed in trespassing on said mines, and the proceeds of their sale to be paid into the Treasury. The above is an analysis of as much of the law as is necessary for our present purpose. Though the caption is a general one, and applies to all persons, yet it is contended that it refers only to trespassers and that as the word trespass is a legal and technical term, it must be received according to its legal meaning. 'Trespass
(says Blackstone,) as relates to land, signifies no more than an entry on another man's ground without a lawful authority and doing some damage, however inconsiderable, to his real property.' And it matters not whether the person in possession is 'landlord or tenant' whether he has an 'absolute or qualified property' in the premises, either has his right of action against his trespasser, consequently no man can be a trespasser upon land of which he has the use and possession or which belongs to him absolutely or for a limited time. Then applying this doctrine, it is said an Indian cannot be a trespasser upon lands of which it is acknowledged, by treaty he has the full, free and undisturbed possession.
Again, it is contended that in aid of the above principle the preamble of the law is very strong if not conclusive. It states that great waste had been committed by the trespasses and intrusions of whom? Not the Indians but numberless citizens of this and other States. Now Indians are not citizens and never have been so considered. The preamble proceeds to declare, 'for remedy whereof'- What mischief is to be remedied? The trespasses and intrusions of numberless citizens of this and other States upon the mines. Then comes the enacting clause which states 'for the better securing said mines from trespass, all persons guilty of digging gold shall incur the aforesaid penalty,' 'unless authorized by law' to dig. Now here is room to contend again, that it was trespass in its legal sense, the Legislature intended to punish, ' that it was well known no one could by any possibility, according to existing laws, be 'authorized by law' to dig for gold but the Indians, they having the constant and uniform
law of treaties as well as the intercourse law of the United States to protect them in the possession of their unceded lands, the above expression was intended as a saving in their behalf. It has been urged and some facts stated, which occurred at the passage of the law, to explain the reason of the above proviso, but I presume every one knows that Courts of Justice cannot travel out of the law for any explanation of is meaning: it would go to establish the monstrous practice of ascertaining the sense of the Legislature by oral testimony, and thereby placing the laws of the land in the most dubious and fluctuating condition.
Again it is asked, if the above section was intended to embrace every person who should dig gold, where was the necessity of the 4th section which imposes the same penalty upon any person who should employ a white man, Indian, negro, or mulatto to dig gold? If it is contended that these four descriptions of persons were excepted from the penalty of the third section because the white man alluded to was one who should not be a citizen of this or any other State, but who claimed the rights of an Indian as a descendant, and therefore for greater particularity common to the law, was described as a white man. That to employ him or the Indian should be a crime in the employer, for it was criminal in them to dig gold no one can or will believe they would suffer themselves to be employed in a business that would send them to the Penitentiary. And this idea is much strengthened by the fact there is an after provision which exempted slaves from Penitentiary confinement and subjects them to confiscation, as an additional punishment to the employer.
These are the doubts thrown around this law, and the Court is called upon to remember the rule of construction to be found in the English law, which is our law, and which if it ever existed in any country, ought to exist in this boasted land of liberty, viz. 'It was one of the laws of the twelve tables of Rome, that whenever there was a question between liberty and slavery, the presumption should be on the side of liberty. This excellent principle our law has adopted in the construction of penal statutes, for whenever any ambiguity arises in a statute introducing a new penalty or punishment, the decision shall be on the side of lenity and mercy: or in favor of right and liberty; or, in other words, the decision shall be according to the strict letter in favor of right and liberty: or, in other words, the decision shall be according to the strict letter in favor of the subject. And though the Judges in such cases may frequently raise and solve difficulties contrary to the intention of the Legislature, yet no further inconvenience can result, than that the law remains as it was before the statute. And it is more consonant to the principles of liberty, that the Judge would acquit whom the Legislator intended to punish, then that he should condemn whom the Legislator intended to discharge with impunity.' I do believe it was the intention of the Legislature to bring the Indians within the penalty of the law, but I candidly own I arrive at this belief more from my knowledge of the history of its passages then from the law itself, and that to one entirely unacquainted with that history there would be much ambiguity in its true object.
Believing then as I do, and that the Legislature has perhaps not given the subject that full and deliberate investigation which belongs to Courts of justice, and this their supposed knowledge of the Constitution, laws and treaties of the land, and the constant and familiar use of legal principles in expounding the same enables them to bestow on such questions, I will proceed to present my opinion on the 3d ground for the future consideration of the Legislature.
In the beginning of this investigation I lay down the following principle, that there never have been, but two ways of acquiring Indian lands,--by force and by purchase. I add history does not furnish a single instance where one foot of Indian lands has ever been takes by force, by the United States, especially by Georgia, and this redounds greatly to the credit of the settlers of America, for Vattel, the best writer on natural law observes, 'that the cultivation of the soil was an obligation imposed by nature upon mankind, and the human race could not well subsist, or greatly multiply, if rude tribes, which had not advanced from the hunter state, were entitled to claim and retain all the boundless forest through which they may wander. If such people will usurp more territory than they can subdue and cultivate, they have no right to complain if a nation of cultivators puts in a claim for a part.--3 Kent's Com. 312 and Vat. 1, b. sec. 81.
Vattel further adds, 'people have not then deviated from the views of nature in confining the Indians within narrow limits,' but praises the moderation of the American settlers for purchasing from the Indians what they had a right to take by force. All that the first discoverers ever claimed was the right of empire, and the ultimate right of dominion over the Territory which they took the possession of in right of their sovereign, and as against all other nations this right was rigidly enforced.
This right of empire or of government has been fairly deduced into the State of Georgia, and I consider that question as at rest. The right of domain or soil is also in Georgia, but subject to a claim or title of the Indians which must be extinguished in some way or other before Georgia's absolute right will accrue.--The question is, how is this to be extinguished? Is it to be by force or by purchase? If by force, is the Court to understand that the State renounces the policy pursued by herself, her sister States and the United States, for the last three centuries, and throws herself upon the original right which Vattel admits she had at the discovery of America, and that too, where the reason for that right has almost, if not entirely ceased? Will the State urge, after greatly advancing in science and civilization, and what is still better, in the knowledge of just and equal laws, that by reason of its crowded population, it is unable to 'subsist and multiply' without this land-that these 'rude tribes have not advanced from the hunter state' and usurp more territory than is necessary for their subsistence, or are not sufficiently confined within 'narrow limits?'
This Court does not consider this law to be an act of force, but is founded, no doubt, in what the Legislature honestly believed to be a right acquired, somewhere between the first discovery of the country and the passage of the act, either in the force and effect of the laws of Great Britain, over that people from whom we obtained the country, or in our own laws, treaties and compacts since its acquisition. It is then under this view we narrow down the consideration of the question.
And first, if the Indians have a title to extinguish, what is that title? I shall consider the question under a two fold aspect. 1st What part or portion of the land have they a right to enjoy under their title? 2d. What is the nature and duration of their title?
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Now what is land? 'In its legal signification, says (Coke and Blackstone) land hath an indefinite extent upwards and downwards. Upwards, to 'the sky' is the maxim of the law, and therefore no man may erect any building, or the like, to overhang another's land; and downwards, whatever is in a direct line, between the surface of any land and the centre of the earth belongs to the owner of the surface, as is every day's experience in the mining countries. So that the word 'land' included not only the face of the earth, but everything under or over it. And therefore, if a man grants all his lands, he grants thereby, all his mines of metal and other fossils, his woods, his waters, and his houses as well as his fields and meadows.' 2 Black's 16.
By the foregoing doctrine it will appear that the State as the 'original proprietor' of all lands, held not only as the mines and minerals, but everything else that is _________ the term land. Originally they have never been separated any more than the woods and waters have been separated from the soil, and I defy the production of any authority to prove the contrary. But whenever the Crown granted its lands, if it chose to make a reservation of the mines and minerals upon the face of the grant, it had a right to do so, and from that time they became separate and distinct, and never before. And all the mines and minerals now held by the King of Great Britain, separated from the lands, is by virtue of such reservation at the time of granting his land. This is the case with regard to some of the lead mines in the United States, and this was attempted by an act of Congress in 1825, but meeting the decided disapprobation of the people it was shortly repealed. I have no hesitation in saying that the State holds just as good a title to the Indian lands as it does to the mines and minerals, that it is by virtue of the former it has any right at all to the latter; they are inseparable. If they were distinct rights while the land is in the possession of the Indians they would remain so after the State acquires the land from the Indians, for there is nothing in that act that unites them, and a consequence would be, when she granted out her lands to her citizens, the mines and minerals would not pass, even though she made no reservation in the grant, and this we know is not the case.
I have looked in vain for any historical fact, in relation to the discovery and settlement of America, for any reservation of the mines and minerals to the sovereign, separate and apart from the territory itself; indeed there could be no reason for such a distinction, for as before observed, the whole empire and domain belongs to the discoverer. No Charter, proclamation, law or public document, contains any mention of such reservation. I therefore conclude that whatever right the Indians hold to their land; they hold the same right to everything which falls within its legal definition, and this brings us to consider, secondly, the nature and duration of their title.
In considering this head, I shall present three views of the subject.
1st. In what manner their title was respected by Great Britain, the discovering nation and from whom Georgia obtained the country.
2d. In what manner Georgia has respected it since its acquisition.
And 3d. How it has been respected by the Courts of Justice.
1st. We have already shewn that the discovering nation had a right to take by force a part of the country, such as would strictly answer the exigency making such
force necessary, but that nothing would justify the taking the whole of the country and leaving its inhabitants to perish.- That though they might be confined in 'narrower limits,' yet there were some limits to which they would have a right under the laws of nature, free from the right of force. Whether they are now within those limits, it is not my intention to enquire, though it is well worthy of humane consideration especially as they are receding from the 'hunter life' which originally justified the seizure of their lands, and approaching the agricultural condition; which brings them within the 'curse' of their creator and entitles them in common with the rest of mankind, to a portion of the earth, for their support.
But Great Britain never took one foot of their land by force. She chose the rather to adopt a more enlarged and liberal policy, and waving the right as admitted by Vattel, resulting, as he said, from a 'celebrated question to which the discovery of the new world had principally given rise,' and was therefore a new doctrine in the law of nations, she reposed herself upon the law as it stood previous to this new principle, and took the country subject to the right of conquest. This right as every one knows confers upon the conqueror only the empire and the
unappropriated domain, but private property is sacred. It is true the Indians did not hold their lands in private right, that they enjoyed them in common; but Great Britain, greatly to the praise of her justice and humanity, chose to respect them in that light, and consequently we find in statement of the Province of Georgia, in 1740, sent home to the trade office in London, that not an Englishman was settled within this district when the first Colony of Georgia arrived. Mr Oglethorpe agreed with the Indians, PURCHASED of them the limits mentioned in the treaty. Except the charters which granted all Georgia to Oglethorpe and his company, this is the first instrument or compact between the whites and the Georgia Indians, and what does it imply? Does it not incontestibly shew some kind of right in the Indians. If Savannah and the surrounding country was bought, is it not proof that the seller had title and if he had title to that which was sold did he not retain a title to that which he did not sell?
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Oglethorpe, within his ceded territory, and with his company under his King's charter, was much the government of Georgia, as Georgia now is under its present constitution, and if he could not divest the Indians of their right to dig gold in their lands not ceded to him, how can Georgia do it now with no higher right, indeed with precisely a similar right? We have only to carry Georgia's present government back to that time and leave out the treaties we have had with the Indians since, and we have precisely the question above stated. Deriving our right from Great Britain, we do not pretend to claim any better title than she had, unless indeed the genius of Republics to be more grasping than Monarchies, a principle I trust, that will never be admitted. The above reasoning then shows the time when the Indians had a right to the gold found on their land; if they have lost that right, it is certainly incumbent upon the party who says he has acquired it, to shew the deed by which it has passed. I confess I have looked for it in vain.
The next distinct and public evidence of respect for the Indian title on the part of Great Britain is to be found in the King's proclamation of 1769- It is as follows: 'Whereas it is just and reasonable and essential to our interest, that the several nations or tribes of Indians with whom we are connected, and who live under our protection, should not be molested or disturbed in the possession of such part of our dominions and territories as not having been ceded, or purchased by us, are reserved to them, or any of them for their hunting grounds; we do therefore declare it to be our royal will and pleasure, that no Governor of any of our colonies do presume for the present, and until our pleasure be known, to
grant warrant of survey or pass patents for any lands beyond the heads or sources of rivers which fall into the Atlantic Ocean, or upon any lands whatever, which not having been ceded to, or purchased by us, as aforesaid, are reserved to the said Indians or any of them.'
The next clause of this proclamation further defined the reserved lands to the Indians, and forbid all persons from either purchasing or selling within the same, and further required all persons who had inadvertently 'seated themselves upon lands which had not been ceded or purchased, forthwith to remove themselves from such settlements.' And then it concludes in the following just and emphatic language; 'to the end that the Indians may be convinced of our justice and determined resolution to remove all reasonable cause of discontent, we do, with the advice of our privy council, strictly enjoin and require that no private person do presume to make any purchase from the said Indians, but that if any of the said Indians should be inclined to dispose of the said lands the same shall be purchased only FOR US, in our name at some public meeting or assembly of the said Indians, to be held for that purpose by the Governor of our Colony, within which they shall lie.'
Here then we do most clearly perceive that Great Britain forever relinquished the idea, whether founded in right or not, of taking Indian lands by force, and that she as clearly substituted in its place the right, and no other, of PRE-EMPTION. In this proclamation the pre-emption right, most obviously originated, was the only one claimed by Great Britain while the country remained hers, and was continued, as we shall hereafter see, by Georgia down to a very late period.
In all the treaties made with the Indians, on the part of Great Britain, that government evinced a studious care to make it appear to the world that all its purchases were fair and just. In the last treaty made in 1773 with the Cherokee and Creek Indians, there is a remarkable instance of this anxiety. After stating in the preamble, that the Indians in a full and voluntarily manner desire to cede the land therein mentioned, for the purpose of paying their debts to the traders, and that it will be a great favor rendered them to purchase the same, the Indians say, 'we do hereby solemnly declare that we do fully and clearly understand every part of this treaty and cession, it having been fully explained and interpreted to us, and the same is made at our won requests and for own benefit and advantage.' This treaty was for all that fine country above Little River, up to the Cherokee Corner.
This closes the first view proposed which was to shew the manner Great Britain respected the Indian title, and creditable as it may and does appear to that Kingly government, it is not more so than that of the Republics of America after the Indians fell to our charge. I proceed to shew how Georgia has respected their title since her acquisition of the territory.
She commenced precisely as Great Britain left off, which was to purchase by treaty a scope of country extending from the upper line of the cession last named to the Currehee Mountain. This treaty was made in 1783, and by authorities of Georgia alone with the Indians. Two years after another Treaty was made by Georgia Commissioners with the Creeks, in which is found this clause, 'if any citizen of this State or other person shall attempt to settle or run any of the lands reserved to the Indians for their hunting grounds, such person or persons may be detained until the Governor shall demand him or them,' and then he was to be punished in the presence of the Indians. In 1787 the Federal Constitution was formed, the 10th section of the 1st Article of which declared that 'no state shall enter into any Treaty,' and by the 2d. Section of the 2d. Article it is also declared, that the 'President, and the Senate (two thirds concurring) shall make all Treaties.' Under this constitution, Georgia believed that she had no longer the right to treat with the Indians for their lands; she always asserted and maintained her right to the jurisdiction and ultimate soil of the country, through many difficulties she had with the general government, but yielded the right to that government to purchase off by treaty, for her use, the Indian title to said lands, always conceding that the Indians had a title of which they could not be divested but by fair purchase and that Georgia had the pre-emption right to the same. The first public document where this right of purchase is considered a pre-emption right, is in the Convention of Beaufort, between Georgia and South-Carolina, in which both parties designate it by that name, to wit: 'Georgia cedes to South-Carolina, (the lands between Tugaloo and Kiowee) all the right, title and claim, which she hath to the government, sovereignty and jurisdiction, in and over the same, and also the right of pre-emption of the soil from the native Indians.'
In numerous acts of the State, whenever Indians or Indian lands occur, a title of some sort is always acknowledged in the Indians, and that the same must be extinguished by purchase, and that by the United States, since the adoption of the Federal Constitution. It is wonderful to observe the mass of evidence spread through the public records to this effect. For instance, in the act of '93, appropriating lands for the payment of the State troops, it is required that our Senators and Representatives apply without loss of time for a treaty to be held with such tribes who may claim the right of soil to such lands. 'In an act amendatory of this act, commonly called the Yazoo Act,' where, if all sense of justice to Indian rights could have been forgotten, it would be the very place to find it; yet even here there title was respected, and the Yazoo purchasers were bound to extinguish it, through the agency of the General Government by fair purchase; and what is remarkable, in four places of that act, the right of Georgia is expressly called a pre-emption right.- But this way may be considered as not the best authority, and I am so disposed to consider it. I only mention it to shew that men of all descriptions have been disposed to respect the title of the Indians, and that surely less ought not to be expected from an honest community. There is however, an authority that I am sure everybody will regard, and it is the memorable act which repealed the Yazoo Act, commonly called the Rescinding Act. This act was drawn up by the late Governor James Jackson one among the ablest statesmen and patriots that Georgia ever had. The preamble, which is an able view of Georgia's rights over the Indian territory, and which boldly claims the right of jurisdiction and soil, justly recognizes a title in the Indians, the right to extinguish which is only pre-emptive on the part of the State. Then in the first enacting clause, it declares that the Yazoo Act and the grants issued under it are null and void, 'and the territory therein mentioned is also hereby declared to be the sole property of the State, subject only to the right of treaty of the United States to enable the State to purchase under its pre-emption right the Indian title to the same.'
The fifth section of that act declares the right to extinguish the Indian title, or to apply to the General Government for that purpose is vested in the people and government of this State, and concludes in these explicit terms, 'to whom the right of pre-emption to the same belongs, subject only to the controlling power of the United States, to authorize any treaty or treaties for, and to superintend the same.' This act passed in '96. The next public document in which we find the subject mentioned, is in the Constitution of the State, adopted in the year '98. The 23d section of the 1st art. describes the boundaries of the State, asserts the right of soil and jurisdiction, and concludes by declaring that 'no sale of territory of this State, or any part thereof shall take place to individuals or private companies, unless a county or counties shall have been first laid off including such territory, and the Indian rights shall have been extinguished thereto.' Words cannot be plainer and the obligations they impose cannot be higher; for this Court, as well as all officers are sworn to support it. But this is not all; keeping up and acting entirely in conformity with previous acknowledgments as contained in treaties, acts and the Constitution, the highest evidence of right, we find in a compact with the General Government, called the Articles of Cession, made in 1802, Georgia stipulating 'that the United States shall at their own expense, extinguish for the use of Georgia, as early as the same can be peaceably obtained on reasonable terms, the Indian title' to the lands left within the State and not sold to the General Government. What title? Surely the title we have been all along tracing down from the earliest settlement of the country, and which we have just seen was called a preemption right on the part of the State. I know Georgia has a right to complain that this title has not been extinguished; that it could have been done long ago upon reasonable and peaceable terms. But her complaint is against the General Government.--The Indians are no party to this contract. They have not bound themselves by this instrument. They cannot be answerable for the bad faith of one of the contracting parties.- Will it be contended, that if the Indians will not sell their lands to the General Government; we will take them by force? Would such a doctrine be countenanced among ourselves. If one citizen were to oblige himself to purchase a tract of land of another citizen, for the benefit of a third, will it be said that this third person may seize the land if its owner do not choose to part with it? If this is answered in the affirmative, and it is insisted upon seriously that a court of justice ought to enforce such an usurped right, then I confess I have nothing more to say. But suppose the General Government never had undertaken to extinguish this right. What then would have been our situation with the Indians? They must live somewhere. I presume no one is yet prepared to say their throats should be cut to make way for Christianized man. Recollect, we would have had no territory beyond the Mississippi to which we could transport them. Recollect too, they are incapable of being incorporated with white man. Will any one maintain, in the face of the strong current of evidence flowing through so many inviolable public documents, which I have just adduced in favor of their right, and which so accurately marks our own, that it would be just and right, before Heaven to take their property away without consideration, or to pen them up in such limits as to perish? I cannot believe it. So much for the Articles of Cession. The next confession of Georgia (and confessions are considered in courts the very best evidence) is to be found in an able report made in 1810 to the Legislature, in the shape of a petition to the President of the United States complaining of the Treaty of Fort Jackson, and also Calhoun's treaty which had annulled the only treaty that was likely to effect a removal of the Indians, viz. the Treaty of 1817, made by Jackson and Meriwether. In this memorial is the following distinct acknowledgment- 'The State of Georgia claims a right to the jurisdiction and soil of the territory within her limits. She admits however, that the right is inchoate, remaining to be perfected by the United States in the extinction of the Indian title; the United States, pro hac vice, acting as our agents.'
This finishes the views in which the Indian title has been respected by the State of Georgia, ' bring us to the consideration of the last thing proposed, how it has been settled by the Courts of justice, and this branches again into two views.
1st. As settled by the Supreme Court of the United States and the separate States of the Union- and 2d. as decided by our own Courts.
And 1st. As to the Supreme Court, Justice Kent, the ablest American commentator that has appeared, in collecting the decisions of that Court and consolidating the doctrine on this subject observes, that 'the nature of the Indian title to lands lying within the jurisdiction of a State, though entitled to be respected by all Courts until it is legitimately extinguished, is not such as to be absolutely repugnant to seisin in fee on the part of the Government within whose jurisdiction the lands are situated.' - 6 Cran. Rep. 87. Judge Johnson in this same case, went farther than the rest of the Court-he enquires, 'If the interest in Georgia was nothing more than a power to acquire a fee simple by purchase, when the proprietors should be please to sell? And if this ever was anything more than a mere possibility, it certainly was reduced to that state when the State of Georgia ceded to the United States, both the power of pre-emption and of conquest, retaining for itself only a resulting right, dependent on a purchase to be made by the United States.'
Justice Kent continues, 'In the case of Johnson
vs, McIntosh, (8 Wheat, 543) it was stated as an historical fact, that on the discovery of this continent by the nations of Europe, the discovery was considered to have given to the government by whose subjects or authority it was made, the sole right of acquiring the soil from the natives, (the right of pre-emption) as against all other European powers. Each nation claimed the right to regulate for itself, in exclusion of all others, the relation which was to subsist between the discoverer and the Indians.' After stating that all the European nations who had made discoveries in American, assumed the ultimate dominion and claimed the right to grant the soil 'subject to the Indian right of occupancy,' he adds, 'The United States adopted the same principle, and their exclusive right to extinguish the Indian title by purchase or conquest, and to grant the soil and exercise such a degree of sovereignty as circumstances required, has never been judicially questioned.' He then affirms what I have already stated, that the States within which any of the Indian nations fell; claimed and exercised the right to govern them, and that they 'could transfer their title to no one but the power claiming the jurisdiction of their territory.' 'The peculiar habits and character (says our author) of the Indian nations, rendered them incapable of sustaining any other relation with the whites than that of dependence and pupilage. There was no other way of dealing with them than that of keeping them separate, subordinate and dependent, with a guardian care thrown around them for their protection'. After mentioning that the rule established to keep the Indians subordinate, to govern and protect them, to prevent them from selling their lands to others, was the best that could be adopted with safety, he states, 'this was founded on the pretension of converting the discovery of the country into a conquest, and it is now too late to draw into discussion the validity of that pretention, or the restrictions which it imposes. It is established by numerous compacts, treaties, laws, and ordinances, and founded on immemorial usage. The country is colonized and settled, and is now held by that title. It is the law of the land, and no court of justice can permit the right to be disturbed by speculative reasonings on abstract rights.' This, he continues, is the doctrine of the Supreme Court, ' the United States 'have never insisted upon any other claim to the Indian lands than that right of pre-emption upon fair terms.' It is the view taken by New York in the case of Goodall and Jackson, (20 John Rep. 693) where the State claimed the right of pre-emption to the Indian lands within her limits and held all other purchases void. The Legislature of Virginia in 1799 asserted the same exclusive right or pre-emption, and the colonial and State authorities throughout the Union, always negotiated with the Indians within their respective territories. And then, in summing up the whole doctrine, he observes, 'but while the ultimate right of our American governments to all the lands within their jurisdictional limits and the exclusive right of extinguishing the Indian title by possession, is not to be shaken; it is equally true, that the Indian possession is not to be taken from them, or DISTURBED without their free consent by fair purchase except it be by force of arms in the event of a just and necessary war.'
So much for the decisions of the Federal and other State courts, after adding, that at the last term of the Supreme Court, when it virtually decided the jurisdiction in favor of Georgia, it incidentally remarked, that the right of property in the Indians, as to the possession of their lands, would be protected by that court. I come now to the decisions of our own courts. I presume the celebrated Reserve question is well recollected by most persons. There were certain reserves made in favor of a number of the Indians in the treaty made by Meriwether and Jackson in 1817, and also in the one by Calhoun in 1819. The Legislature received these treaties, but determined to reject the reserves. To that end they ordered a survey of the cession without any respect to the Reserves, and subjected them to a lottery with the other lands. The fortunate drawers of these Reserves commenced their actions against the Indians residing thereon, and the question presented was, which title should prevail, the treaty title or the Georgia grant? The question is so plain, that I apprehend there is not one mind in one thousand at this day, that would entertain a doubt. The decision was of course, in favor of the treaty and it was universally approved (out of the immediate interest of the question) by the good people of Georgia, and indeed everywhere else.- The view taken of that case was this, and it continues to be the deliberate opinion of this Court. That the treaty making power is parted with by the States and resides in the General Government according to the limitations and powers granted to that Government in the Federal Constitution, but that all treaties, as well as all laws, must be made, in the language of that instrument, 'In pursuance thereof.' That the treaty making powers can no more exceed the powers of the General Government than the law making power; indeed, it would be absurd in the extreme, to contend that the President and Senate can bind the States 'in all cases whatever' and thereby remove all limits from the Federal Government, when Congress composed of the representatives of the people, cannot do it. Then according to this view, it became necessary to ascertain whether the treaties above mentioned were made 'in pursuance of the Constitution.' In order to do this, another view became important, and it was this-- By the Articles of Cession already mentioned, made in 1802, the State of Georgia, in addition to the constitutional right of the General Government to make treaties, had actually agreed with that government that it should purchase the lands-making it, in the language of the memorial before referred to, 'our agent pro hac vice.' So far and no farther as the purchase of the Indian title was concerned, powers could not be more ample. In the first place the government possessed the right to treat under the Constitution, and buy the lands, but with Georgia's own money, as it was in the habit of doing for Georgia (and the other States) whenever they wished to acquire Indian lands within their respective limits. In the second place, it had Georgia's special consent, by positive contract, to treat and pay for the lands out of its money; now when the treaty was made and accepted, the whole treaty as to the purchase of the lands being the extent of the government's agency, must be taken, or none. To say that it would take a part of the contract, such as suited Georgia, and reject the balance, was so repugnant to every principle of justice, that it could not be tolerated for one moment. Then, as Georgia had received the treaty, if the General Government had transcended its powers, the court could not possibly view the matter in any other right than as a waiver of all objections and that Georgia had made the treaty her own as though she had the right originally to have entered into it.
[To be concluded.]