For the New York Observer
HISTORY OF THE INDIAN BILL.- No. III
When Mr. Frelinghuysen closed his argument in behalf of the Indians, which was on Friday, April 9th, he was immediately succeeded by Mr. M'Kinley of Alabama, who occupied about an hour before the Senate adjourned. The principal topic on which he spoke was the case of Johnson and M'Intosh, where, as he supposed, the Supreme Court of the United States decided against the rights of Indians. His reasoning was not very clear, and it was evident that he totally misapprehended the opinion of the court. It was decided, indeed, in that case, that Indian chiefs, according to the laws of Great Britain and the United States, cannot convey their lands to individual white men; but there is not a word in the opinion or reasoning of the court, which limits the occupancy of the Indians as to time; nor a word which authorizes any encroachment upon their boundaries, or any extension of our laws over them. On the contrary, their legal and just claim to occupy their own lands according to their own discretion, is distinctly asserted. So far is is (sic) the case from bearing hard upon the Cherokees, that they rely upon it as announcing principles, which would defend their present possession and their territorial rights, even if there were no treaties in existence.
The debate on this subject was not resumed till half past one o'clock on Tuesday, April 13th, when Mr. M'Kinley concluded his remarks, in a speech of about an hour and a half. The particular object which he had in view, was to show, that the new states are not bound by the engagements, into which they entered as the condition of their being admitted into the Union. His argument was highly metaphysical; and it was rare to find a man who understood it. I studied upon it a good deal; and unless I am mistaken it was substantially as follows: the United States prescribed to Alabama when a territory, that, before the territory could be erected into a state, the people should agree in a coavention (sic) to certain conditions on which a lone they could be admitted into the Union. They do thus agree; and are afterwards admitted into the Union by an act of Congress, which is expressly founded upon the fact, that the prescribed conditions have been solemnly assented to by the people of the new state.
Yet these conditions are not binding upon the state after it is admitted. The reasons are three. 1. An engagement made by the people of a territory cannot be binding upon the same people when formed into a state, because they are incapable of binding themselves in this manner when existing under a territorial organization. The state is not formed, and how can a state be bound by an act done by itself before it is formed? The state cannot act before it has an existence; then how can a state be bound by an act imputed to it as its own, which act nevertheless, was done before the state had an existence?
This is the metaphysical argument; and I presume it is the principal one. If it is not clear to the reader, I cannot help it. I have honestly done all in my power to state it fairly. This is the same argument on which Mr. M'Kinley relied in a previous session, to prove that the new states have a right to all the lands of the United States within the limits of the new states. All these states were admitted into the Union on the condition that they would not interfere with the title of the United States to lands unsold, that they would not tax the public lands till five years after they were sold; and that they would not tax the land of non-residents at a higher rate than other lands. Yet Mr. M'Kinley and some other Senators contend that the new states may rightfully appropriate to their own use the public lands of the United States, thus secured by the most solemn stipulations.
2. The new states are not bound bound (sic) by their engagements, made on entering into the Union because these engagements were extorted, and obtained by a moral power equal to a duress. The new states could not be admitted unless they entered into these engagements. Therefore they made these engagements by constraint; and therefore they are not bound by them.
3. These engagements are not binding upon the new states, because all the states must be perfectly equal. Non can be subordinate to others. All are equally sovereign; therefore these conditions, being derogatory to the sovereignty of the new states, cannot be binding upon them.
As a general conclusion, it follows that Alabama and Mississippi are not bound by their solemn covenant, adopted, approved, and ratified as the ground of their admission into the Union: in which covenant they declared that they would 'never disturb nor invade the Indians in their property rights, and liberty;' nor are these states bound by their engagement not to tax or seize the public lands within their chartered limits. As it happens, however, they have not proceeded to tax and confiscate the public lands; though they have proceeded to disturb and invade the rights of the Indians.
Mr. Forsyth, one of the senators from Georgia, succeeded Mr. M'Kinley. He spoke only twenty minutes that day.
On Wednesday and Thursday, April 14th and 15th, Mr. Forsyth pursued his argument about two hours each day. This gentleman is rather an agreeable speaker. His voice is pleasant, and his countenance prepossessing, except occasionally, when he assumes an angry or a haughty air. He does not speak with a continual flow of eloquence; or has he any highly finished or very forcible passages. His whole discourse is not a regular performance, but rather a collection of little speeches or disjointed topics. Due allowance should be made however, for the nature of cause, which he had to advocate.
I have before an abstract or abridgement of Mr. Forsyth's argument doubtless prepared for the press himself.
He began by declaring that Georgia had formed her plan and would not fail to execute it. He was not apprehensive of any collision with the general government: for the President had decided in favor of Georgia. He contended that Georgia had, in fact, obtained all the Indian country within her chartered limits by treaties made before the adoption of the Federal Constitution. By the treaty of Galphinton, in 1785, the Creeks admitted themselves to be members of the state of Georgia. As to the Cherokees, by the Treaty of DeWitt's Corner, 1777, they admitted that all the country eastward of the Unicaye Mountains had been conquered by South Carolina, and they ceded these lands to that state. The conquest went for the benefit of Georgia; and these lands are the very lands now occupied by the Cherokees in Georgia.
It will be convenient for the reader to learn here, that this treaty was quoted incorrectly by Mr. Forsyth, and was totally misunderstood by him. The lands ceded to South Carolina as having been conquered previously to 1777, are more than a hundred miles from the Cherokee lands now inhabited by that tribe. Not an acre ceded at DeWitt's Corner has ever been claimed by the Cherokees since. So little pain did Mr. Forsyth take to examine the foundation of his arguments. It is quite remarkable, that, after Mr. Sprague had exposed this mistake, the same statement should appear in a speech published five weeks from the time of its being delivered.
Mr. Forsyth proceeded to say, that, by the Treaty of Hopewell the Cherokees had agreed that Congress should have the power of legislating for them and of managing all their affairs. Of course, Congress could remove them by force, if it pleased. It might be said that this legislation over the Indians was unjust and a violation of faith. That was a matter for the United States and the Cherokees. Georgia had nothing to do with it; at least she had only her portion. The United States had ceded all her right to Georgia, and that state would have her bond. She would have the pound of flesh
Mr. Forsyth then described the efforts which had been made to excite prejudice against Georgia, such as the writing of essays, sending circulars from ladies, holding meetings, and getting up memorials. But he thought all these measures had failed. The good sense of the country would see that Georgia was claiming no more than her rights. He said, that he was opposed to Mr. Monroe's project of removal, as visionary and impracticable; and that he then formed a project himself, from which he was deterred by finding a want of constitutional power to execute it. He did not expect that the condition of the Indians would be improved by a removal, but the states would be relieved from a useless and burdensome part of their population, and the Indians would be no worse off that they are at present.
He was not about to vindicate Georgia, as that state needed no vindication. She was on the vantage ground. The President had decided for her; and all the constituted authorities have decided for her. The President leans, indeed, too much in favor of the Indians; for he says their lands are guaranteed to them. In this he is mistaken. Georgia has a right to the lands, as well as to the sovereignty. And it will be so determined by the federal tribunals and the state tribunals, if the question should be agitated. He trusted and believed, that the question will never be agitated. It will not, unless the Senator from New Jersey should fill the Cherokees with vain hopes.
Georgia is the theme of the evening chant and matin song of all the calumniators in the Union, who have taken the Cherokees into their holy keeping. No epithet is too strong, no reproach too foul to cast upon her, for having followed the example of ten states in the exercise of jurisdiction over the Indians in their territory.
The causes of this distinction between the treatment which Georgia receives and that which the other states received, are the following. There are many white man, missionaries and others who have comfortable settlements among the Indians. The Cherokee government is in the hands of a few half breeds and white men who control all the funds of the tribe. A press is supported by these funds. The money, which ought to be applied to feed and clothe the common Indians who are represented as half starved and naked wretches is applied to the support of a printing press. The Cherokee government has a delegation at Washington, and as the leaders understand the value of money, they have authorized the delegation to pay for any advice they may obtain. Of these printed circulars, memorials, pamphlets, and essays, which have been laid upon the tables, how many have been fabricated under the hope or promise of present reward?
He added, that reproach and censure, ungrateful as they are, have been long experienced by Georgia. The dispute about her western lands began early. Though Georgia has been always abused, she has always obtained her rights. Mr. Forsyth closed his speech by a history of the injuries which in his estimation, had been inflicted on Georgia by the general government.
As he was about concluding his remarks, he said he had a paper in his hands, describing the present condition of the Cherokees, which however was too bad to be read. Mr. Benton cried out, `Read it' No, said Mr. Forsyth, it is too bad to be read; but I will send it to the Senator from New Jersey, and if his vision is not obscured by prejudice, he cannot fail to see the degraded condition of the Cherokees.
The Messenger took the paper, and carried it toward Mr. Frelinghuysen's seat, who declined receiving it, by saying that he did not want it, and directing it to be laid upon upon (sic) the clerk's table. It was afterwards read by several Senators and others. The principal part was a description of a ball-play witnessed among the Cherokees by the writer not long ago.- These plays were universally practiced till missionaries exerted an influence which has prevented three quarters of the people from engaging in them. They were praised by all advocates of preserving the customs of the Indians, and declared to be fine athletic sports by all opposers of missions; but now the mere remnants of these sports are to be charged upon the whole Cherokee people, as conclusive proof of their degradation.
In Mr. Forsyth's printed account of his speech, he totally omitted one topic, upon which he spoke more than an hour. It was a history of the injuries which the natives of America had always experienced from Europeans. He began with the outrages which the Spaniards committed. He contended that the Puritans had encroached upon Indian rights worse than Georgia had ever done. He alleged that William Penn cheated the Indians, and claimed jurisdiction over them. He said that the law of conquest, or the rights of the strongest, had always been respected and always would be. He wished to know why Georgia had not as good a right to legislate for the Indians, as other states had. The whole moral of this part of the discourse appeared to be, (it was certainly so understood by Senators and others) that it was vain and foolish to enquire what was right and just in itself. The Indians had so long been ill treated and abused, that they had no other treatment to expect. Other states had treated them ill so long, that it was very unreasonable to demand that any state should regard their rights.
Mr. Frelinghuysen had complained of the laws of Georgia, by which the Cherokees had been subjected to her jurisdiction, and which he pronounced a cruel and outrageous usurpation; particularly the provisions that the Cherokees could not be witnesses and that they were to be imprisoned four years in the penitentiary if they endeavored to prevent the sale of their country.
Mr. Forsyth, in reply, spent much time in vindicating these laws of Georgia. He said, it was no hardship to exclude Indians from testifying, as they had not sufficient knowledge to be competent witnesses at common law. He thought the laws of Georgia milder than those of other states. None of this is published. I refer to the speech as it appeared in the Telegraph of the 24th. If there is any other report of it, I have not seen it.
In preparing his speech for the press, Mr. Forsyth omitted the phrase poor devils, which he applied to the Cherokees four times: viz three times on Wednesday and once on Thursday. It is well that the criticisms of the newspapers infused into him some sense of propriety, if not a sense of shame. A man does very little to recommend himself to the approbation of the virtuous and honorable when he speaks contemptuously, of the weak and defenseless, and the miserable. No temper can be more unamiable than one which is indicated by such a habit of speaking. No character is so frequently represented in Scripture as odious and abominable as the character of one who disregards the rights of the poor, and who tramples upon the poor because they are poor. It is much to be regretted that any member of the American Senate should appear for a moment to possess this character; and that if his feelings were really kind toward the Indians, he should exhibit them so unfortunately. - Before he uttered such expressions, he should have remembered , that there were Cherokees within the hearing of his voice; some of whom Mr. White had described as worthy of a seat on that floor; that these men have exquisite sensibility to reproaches and contempt; that the use of railing and abusive language is a vice and a vulgarity from which the Cherokees ' many other tribes of Indians are free; that it is quite hard egong(sic) to be deprived of lands and country, laws and government, in violation of the plain meaning of engagements, which they had always considered as binding; that to be called poor devils by one of the Senators, to whom they had applied as the guardians of the nation's honor, was a salutation which they had little reason to expect: and that as his vote given in circumstances not the most favorable to impartiality, might decide their destiny, it became him to pronounce that decision with some regard to tenderness and decorum.
The manner of Mr. Forsyth, in alluding to the Senator from New Jersey, though more respectful in the Senate, then it appears to have been to one who reads the speech in the Telegraph, was not altogether such as the occasion required.