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you THE AUOUIT4 CHHOffICLF,
DDK TO THE MEMORY OF LOUD
BYRON
[Written originally in Greek.]
Victorious hymn* no longer court Ihe ear *,
The hosts of Greece, the clouds of grief oppress;
The hardy warrior drops lli* unwonted tear,
And dlslum soc« exult at our distress.
lie mine to succour—but, alas ! how soon
With him the light of all our prospect* fled!
4 »ur sun has sought the darkness of the tomh ;
For Uvron, friend of Liberty, lb dead I
Ji new Tyrt tens gladden’d all our land,
Inspiring ev’ry soul with ancient fire \
But now, aim ! deaih ehillH his friendly hand,
And endless silence sits upon his lyre.
rio some Cur tree, which waved its shady head,
And graced the heights where lamed i'ui nus.ius join’d,
la torn by teinpe ts from its earthly bed,
And yields its beauties, scattered to Hie wind.
Oh, Greece! should England claim her right to lay
His ashes where his valium sires have lain,
Do l iou, qyveet mother of the Muae*, say
That iho!s alone those ashes sliouldsl retain.
Domestic joy he nobly sacrificed;
Toshunthepaih of pleasure was bis doom.
These, for heroic dangers, he despised *,
Then Greece, the land of furoee, be hie tomh!
lit* PUS.
Augusta, March 13th, IKW.
ON
FOR THK AUGl’kl. CHRONICLR.
IMPROMPTU.
Julii ttf, in lliai {unit uml soul i.f lltlnr,
Undying wonli and pcrrlCHS beauties sbiuc.
Lust 1 , Genias, Itmily, Vlrril, nil uiiiir,
In weaving chaplets lor tby (irnvv of mill.
Kiirlli'n Ibirtisl daughter! Virtue's advocate !
’ Tin lliee liii whom I -trike the harp dale.
'l'iii linin', hwt <l girl, to wake the -Miimi’h Jay,
tni'lmni Hie oul, and .-teai Hie heart away.
SHI, I'A.
Tlii. CHCROKEE CAM'..
Opinion of the Supreme Court, delivered hij Mr.
Chief Justice Marshall , Jan. Term, IbIW.
SiMt, A. Worcester, )
rs. >
The State or Georgia. )
A tun cause nit-very point of view in
which it cun ho placed, is of the deepest
interest.
The defendant is a Slate, a member of
the Union, which has exercised the pou
ers of government over a people who
deny its jurisdiction, and are antler the
protection of the United Stales.
The pliiintiir is a citizen of the State of
Vermont, condemned to hard labor for
four years in the penitentiary of Georgia,
tinder color of an act which he alleges
to he repugnant to the constitution, laws,
uml treaties of the United Slates.
The legislative power of a State, the
controlling power of the constitution and
laws of the United States, the rights, if
they have any, the political existence oi
a once iiunieruus uml powerful people,
the personal liberty of a citizen, are all
involved in the subject now to he cunsi
dcretl.
It behoves lids Court, in every case,
more especially in (Ids, to examine into
its jurisdiction with scrutinizing eyes, be
fore it proceeds to the exercise of a pow
er which is controverted.
Tlie first step in the performance of
this duty, is the inquiry whether the re
cord is properly before the Court.
It is cenili <1 by the Clerk of die Court
which pronounced the judgment of eon-,
deiiiniilion under winch the ptainlitf in
error is imprisoned, and is also authenti
cated by the seal of the Court. It is re
turned with, and annexed to a writ of er
ror issued in regular form, the citation lie
ing signed by one of the Associate .his
tiees of the Supreme Court, and served
on die tiovirnor and Attorney General
of die Stale more than thirty days be
fore the commencement of the term to
which the writ id error was returnable.
The Judicial net,* so far as it pro
scribes the mode of proceeding, appears
to have been literally pursued.
In February, 17!)7, a rulcf was made
on Ibis subject,in the following words:
“ It is ordered by the Court that the t 'lerk
of the Court to which any writ of error
shall lie directed, may make relnrii In the
same hy transmitting a true ropy of da
record, and of all proceedings in tin* same
tinder his hand nnd the seal of the (‘onrt.’’
This has been done. Hut the signa
ture of the Judge has not been added to
that of the Clerk. The law does not re
quire it
la the ease of Aim-tin vs. llunter'st I s
see, an exception was laken lo the return
of the refusal of the Male Coin ( lo filler
n prior judgment of reversal by this
Court, because it was not made by the
Judge of the State Court to whii li the
writ was directed; hut im- exception was
overruled, and the return was held sulli
cient. In Bud vs. Van Ness, s also a
writ of error to a S«late Court, the record
was authenticated in the same manner.
No exception was taken lo it. These
were civil cases. Bui it has been truly
said at the bar, dial In regard lotliis pro
cess, the law makes no distinction be
tween a ciTiiiund and civil case. The
same return is required in both. If the
sanction of the Court could be necessary
for the establishment of this position, it
has been silently given.
AleCulloek vs the fdlate of .Maryland.||
Was qui lam action, brought to recover
a penally, ami the record was authenti
cated by the seal of the Court and the
signature of the < jerk, without llnil ol a
Judge Brown et. nl. vs. the Slate of
Alary land, was an indictment fora line
ami forfeiture. The record in ibis ease,
100, was authenticated by die seal of the
C ourt, uiid die eerliiieute of the Clerk.
Tin- practice is both ways.
The record, then, according to the Ju
diciary act, and the rule mid practice of
the Court, is regularly before us.
The mure important inquiry is, does it
cx'iibil a case cognizable by this tribu
nal !
The indictment charges the plaintUfin
error ami others, being white persons,
with the offence ol " residing within the
imiis of tne Cherokee n.iti >n without a
license," and without having t iken the
oatli l > support nnd defend the Ci-ftstitu
tion and laws of the .State of Georgia,”
Tne defendant in the State Court ap
peared m proper person, and tiled die fol
lowing plea:
“A ndtlie said Samuel A. Worcester.
own proper person, comes and
iKfct*'™? 1 ’*<• ”•«-V.S p.M. Hi. 1 oVVh.Rules.
•*- w li. 912. kHh Wh. 316.
says, that this court ought not to take far
th*-r cognizance of the action and prose
cution aforesaid, because, he says, that
on the 15th day of July, in the year IKB,
he was, and still is, a resident in the Cher
okee nation; and that the Said supposed
crime or crimes, and eacli of them, were
committed, if committed at all, at the
town of New Echota, in the said Chero
kee nation, out of the jurisdiction oi - this
court, and not in the county Gwinnett,
or elsewhere within the jurisdiction of
this court; And this defendant suilii, that
he is a citizen of the State of Vermont,
one of the United States of America, and
that he eat red the aforesaid Cherokee
nation, in the capacity of a duly autho
i ized missionary of the American Board
of Commissioners for Foreign Missions,
under the authority of the Fresidenl of
the United States, uml has not since been
required hy him to leave it; that he was,
at the time of ids arrest, engaged in
preaching the Gospel lo the Cherokee In
dians,and in translating the sacred Scrip
tures into their language, with the per
mission nnd approval of the said < 'liero
kee nation, nnd in accordance with the
human;- policy of the Government of the
United Slates for the civilization and im
provoment of the Indians ; and that his
residence there, for this purpose, is the
residence charged in the aforesaid in
dictment; and this defendant further
saith, that this prosecution of the Stale
of Georgia ought not to have or main
tain, because, he saith. that several trea
ties have from time to time, been entered
into between flu; United Stales and the
) In-rokce nation of Indians, to wit: at
Hopewell, on the Wh day of Novem
ber. at llatstoa, on the Sd day of
July, !7fM ; at f'hiludelphin, on the SJfflh
day id June, 17!)I , ul Tellico, on the 2d
day of October. ; at Tellico, on the
■Jllh day (-(’October, |SOJ; at Tellico. on
[ the sJOlh day of October, l s ()5; at Telli
<v, on the ~7ili day of October, IS’5 : nl
Washington iity, on the 7th day of Jan.
iS(S: at Washington city day
of .March. I •'III; at the C 'hick a.saw t 'oillicil
Home, on the I till day of September,
IMtf, at the Cherokee Agency, on the Sih
day of July, Isl7; and at Washington
city on the livid day of February. ISl!>
all of which treaties have been duly rati
i lied by Ihe Senate ol the I nited Slates ol
I \mi-rica ; and by which treaties, the
United Slates of America, acknowledge
C ihe said Cherokee Nation to he a Sove
reign Nalion, authorized to govern them
selves, nnd all persons who him settled
■ within thdir territ ry, free from any tight
■ f legislative intei 11-reuce hy the several
Stales composing the United Stales of
\mcrica, in reference to acts clone with
in their own territory; and, hy which
treaties, the whole ol Ihe territory now
occupied hy the I hcrokce Nation, on the
east of the Mississippi, has been solemn
ly guaranteed lotliem, all of which trea
ties are existing treaties at this day. and
' in full force. By these treaties, and par
ticulnrly hy the treaties of Hopewell and
Holston, Ihe aforesaid territory is ae
knowledged l» lie without the jurisdic
tion of the several States composing the
( r nion of the United Slates; and it is
thereby specially stipul ted, that theciti
zciis of the United Slates shall not enter
the aforesaid territory, even on a visit,
without a passport from the Governor of
a Slate, or from some one duly aulhoriz
ed thereto, hy the President of (he United
Slates: all of which will more fully uml
«t large appear, hy reference to the afore
said treaties And this defendant saith.
(hat the several acts charged in the lull
of indictment, were done, or omitted to
he done, if nt all, within the said lerrilo
ry so recognized ns belonging to the said
Nation, and so. as aforesaid, held by
them, under die guaranty of the United
Stales; iliat, for those acts. Ihe delen
dant. is not amenable to the laws ol
Georgia, nor to the jurisdiction of Ihe
courts of the said Male; nnd that the
laws of Ihe Slate of Georgia, which pro
less to add the said territory lo theseve
nil adjacent comities of the said State,
and to extend the law s of Georgia over
Ihe said territory, and persons inhabiting
the same: nnd, in particular, the acton
which this indictment vs. this defendant
is grounded, to wit: ‘’An act entitled an
act to prevent the exercise of assumed
and arlairary power, by all persons, un
der pretext of authority from the • hero
kee Indians, and their laws, and lo pre
vent while persons from residing within
that part ol the eharlered limits ol Geor
gia. oi copied by the Cherokee Indians,
anil to provide u gnat d for the protec
tion of the gold mims and to enforce the
i lawsofthe State w ith.in Ihe aforesaid ter
ritory," are repugnant to the aforesaid
treaiii s which, according to the Const!
union of ihe United Slates, compose a
part of ihesnpreine law of the land ; and
that th. -c laws of Georgia nre. therefore,
unconstitutional, void, and of no cll’cc-t:
that the said laws of Georgia are also
unconstitutional and void, because they
impair the obligation of the various con
tracts formed by and between the afore
said Cherokee Nation and the said Unit
ed Stales of America, as above recited :
also, that the said laws of Georgia are
unconstitutional and void, because they
interfere with, and attempt to regulate
and control the intercourse with Ihe said
( bet (dice Nation, which, by the said
Constitution, bt longs exclusively to the
Congress id'the United States; and be
cause the said laws are repugnant to Ihe
statute oflhe United St tes, passed on the
day of March, ISt'i. entitled "An act
to regulate trade and intercourse with
the Indian tribes, ami to preserve peace
on the frontiers:’’ and that, therefore,
tl-isetiiiii has in- jurisdiction to cansclhis
defendant to make further or other an
swer to the said bill of indictment, or
further to try nnd punish this defendant
for the said supposed otfer.ee or alienees
alleged in the bill of indictment, or any of
them: And, therefore, this defendant
prays judgment whether he shall be held
hound to answer further to said indict
ment.'’
This plea vvns overruled by the Court.
And the prisoner, being arraigned, plead
ed n- i guilty. The jury found a verdict
azm. him, and the Court sentenced
him to har I labor, in the penitentiary, for
the term of four years.
By verruling this plea, the Court de
cided that the matter it contained was
not a bar to the action. The plea, there
fore, must be examined for the purpose
of determining whether it makes a case
which bring-the party within the provi
sions of the Sot > section of the "Act to
establish the judicial courts of the United
JsUatea.''
t
The plea overs that the residence, liir j ner
gcd in the indictment, was under thaujwh
thoriiy of the President of the ute«. we
relates, and with the permission unji|)' in I
proval of the Cherokee nation, ’ha] tic
the treaties subsist in# l»et ween theniti me
ed States nnd the Chernkees, ackwvj ha
1 ledged their right as a sovcrfcign nioq tlii
to govern themselves nnd all peons tei
i who have settled within their ternry tut
, free from any right of legislative er
f ference by the several States comping vvl
t the United States of America, hat th
, the act under which the proseculiotvas tn
I instituted is repugnant to the said _*a ce
s ties, and is, therefore, unconstitutial sti
• and'void. That the said act is,alsQn-lor
I j constitutional; because it interferes th, lei
, j and attempts to regulate and eontrolie pr
I intercourse with the Cherokee na.ii,
i which belongs, exclusively, to Congis; di
, and, because, also, it is repugnant toie di
i statute of the United States, entitled ‘n T
j act to regulate trade and intercourse »h o(
the Indian tribes, and to preserve pee cl
• ! on the frontiers.” th
■ Let the averments of this plea be co- si
> ! pared with the Sloth section of the Ju- hi
• cial Act. di
That section enumerates the easesi tli
t which the final judgment or decree n pi
} State Court may be revised in the S ai
- j preme Court of the United States. The ri
• are, “where is drawn in question the v p
» 1 lidityof a treaty, or statute of, or an ui tl
- I thority exercised under the U. States, an <
• I the decision is against their validity; o.U
I | where is drawn in question the vitidily ii
« of a statute of. or an authority exo cased ti
I under, any State, on the ground of their s
being repugnant to the Constitution trea-
I ties, or laws of the United States, aid the
i decision is in favor of such their validity ; ,
I or where is drawn in question the con
• structian of any clause of the Cciislitu
i lion, or of a treaty, or statute of. tv com
- mission held under, the United States,
I and the decision is against the tith, right,
. privilege, or exemption, special!! set up
j or claimed by either party, tinier such
I clause of the said Constitution treaty,
. statute or commission.”
i The indictment and plea,in |iis ense,
i draw in question, we think, thevvalidity i
-of the treaties made by the Lniteil States ■
with the Cherokee Indians It not so,
I (heir construction is cerlaiily drawn in
■ question; and the decision has been if (
i not against their validity—“against the i
right, privilege, or exernptim. specially i
set up and claimed under Item.’. They
also draw into question (hit validity of u i
statute of the state of Getrgia, “on the i
ground of its lieingjrepugnml to the Con
stitution, treaties, and lawjof the United
States, and the decision is n favor of its
validity ”
It is, then, we think, too dear for con
troversy, that the act of Congress, by
vv Inch this t 'ourt is constituted, has given
it the power, and, of course, imposed on
it the duty of exercising .jurisdiction in
this case. This duty, however unplea
sunt, cannot heavoided. 'fhose who fill
the Judicial deparlineiit lave no discre
tion in selecting tho subjects to he hro’t
before them. We must examine the tie
fence set up in this plea We must in
quire and decide whetlnv the act of the
Legislature oi* Ui orfjia. under which the
plaintiff in error lias been prosecuted
condemned, lie consistent w ith. or repug
nar.l to, the Constitution, laws, and trea- j
ties; of the United States.
It has been saitl at the bar, that the
acts of the Legislature of Georgia seize
on the whole « herokee eou|try, parcel
it out among the neighboringcounties of
the Stale, extend her code over the whole
country, abolish its institutions ami its
laws, and annihilate its political exis
tence.
If this be the general effect of the sys
tem, let us inquire into the effect of the
particular statute and section on which
the indictment is founded.
It enacts, that “ All white persons re
siding within the limits of the Cherokee
nation on the first day of March next, or
at any time thereafter, without a license
or permit from his Excellency tlie Gov
ernor. or from surh agent ns his Excel
lency the Governor shall authorize to
grant such permit or license, and who
shall not have taken the oath hereinafter
required, shall be guilty of a high misde
meanor, and, upon conviction thereof,
shall he punished by confinement to the
penitentiary, at hard labor, for a term not
less than four years.”
The 11th section authorizes the Gov
ernor, “should he deem it necessary for
the protection of the mines, or the en
forcement of the laws in force w ilhin the
Cherokee nation, to raise and organize a
guard.'' Ac.
The 13th section enacts, “ that the said
guard, or any member of them, shall bo,
I and they are hereby authorized and em
• powered to arrest any person legally
charged with or detected in a violation
’ of the laws of this state, and to convey,
as soon as practical, the person so arrest
ed. before a justice of the peye. judge
' of the superior, or justice of the inferior
court of this slate, to be dealt with uc
; cording to law.”
The extra territorial power of every
Legislature being limited in its action, to
. its own citizens or subjects, the very pas
. sago of this act is an assertion of juris
diction over the Cherokee nation, ami ol
the rights and powers consequent on ju
risdiction.
The first step, then, in the inquiry which
the constitution and laws impose on this
( court, is an examination of the riglilful
\ ness ol this claim.
America, separated Irani Europe by a
. w ide ocean, was inhabited by a distinct
' people, divided intonephr.de nations, in
. j dependent of each otherand oftherestof
; the world, having institutions of their
, own. and governing themselves by their
l own laws. It is dittieult to comprehend
, the proposition, that the inhabitants ol
I either quarter of the globe could have
rightful oi iginnl claims of dominion over
the inhabitants of the other, or over the
lands they occupied ; or that the disco
’ very of either by the other should give
, the discoverer rights in the country'dis
! covered which annul the pre-existing
r rights of its ancient possessore.
After lying concealed (hr a series of
ages, the enterprise of Europe. guid< d
' j by nautical science, conducted some of
her adventurous sons into this Western
j world. They found it in p. ssession of a
, people who bnd made small progress in
agriculture or manufactures, and whose
general employment was war, hunting,
j and fishing.
Did these adventurers, by sailing along
the coast, ami occasionally landing on it,
n ,lire for the several Governments to
Zg*. conferred their rights over bun
and fishermen, or agriculturists a..d
tfpower. war. conquest, give rights
hieh, after possession, are conceded by
',5 world, and which c«n never be con
•'overfed by those on whom they des
cnd. We proceed, then, to the actua
of things, having glanced at their
tSn. because holding it m our recoi
led on might shed some light on existing
'The great maritime powers of Europe ,
iscovered and visited different parts of
continent at nearly the same time.
'he object was too immense lor any one
p them to grasp the whole; and tl.t
laimants were too powerful to submit to
ho exclusive or unreasonable pi etc n
ions of any single potentate. 1o av oid
doody conflicts, which might terminate
lisaslrously to all. it was necessary or
he nations of Europe to establish some
.rinciple which all should acknowledge,
i,id which should decide their respective
•jirhts as between themselves. I Ins prince
ile. suggested by the actual state ol
hings, was “that discovery gave title
0 the government by whose subjects or I
W whose authority it was made, against
41l other European Governments, which
title might be consummated by posses-
This principle, acknowledged by all
Europeans, because it was the interest ol
,|f to acknowledge it, gave to the nation
4 ,iking the discovery, as its inevitable
onscciiicnco, the sole right of acquiring
tb soil, and making settlements on it.
1 tvvas an exclusive principle, which shut
ou the right of competition among those
wio had agreed to it; not one which
oodd annul the previous rights of those
vvlo had not agreed to it. It regulated
the right given by discovery among the
European discoverers; but could not af
fect the rights of those already in pos
session, either as original occupants, or
as occupants by virtue ol a discovery
made before the memory of man. If
gave the exclusive right to purchase,
hut did not found that right on a denial of
the right of the possessor to sell.
The relation between the Europeans
and the natives was determined in ea< li
case by the particular government which
asserted and could maintain this pro
emptive privilege in the particular place
The United States succeeded to ail the
claims of Great Britain, both territorial
and political; but no attempt, so fur as is
known, lias been made to enlarge them.
fSo far us they existed merely hi theory,
or where in their nature only exclusive of
the claims of other European nations,
they still retain their original character,
and remain dormant. So far as they ]
have been practically exerted, they exist
in liicl, are understood by both parties,
are asserted by the one uad admitted by
the other.
.**-ooii after Great Britain determined
nn nhiniin'r colonies in America, the
king granted charters to companies ol
his subjects, who associated lor the pur
pose of carrying the views of the crown
into edict, and of enriching themselves.
The first of these charters was made be
fore possession was taken ol any part of
the country. They purport generally to
convey the soil, tram the Atlantic to the
South Kca. The soil was occupied by
numerous and warlike nations, equally
wiiling and able to defend their posses
sions. The extravagant and absurd idea,
thut the feeble settlements made on the
sea coast, or the companies under whom
they were made, acquired legitimate
power by them to govern the people, or
occupy the lands from sea to sea, did not
• nterthe minds of any man. They were
well understood to convey the title which
according to tne common law of Euro
pean Sovereigns respecting America,
they might rightfully convey, and no
more. This was the exclusive right of
purchasing such lands as the natives
were willing to sell. The crown could
not he understood to grant what the
crown did not affect to claim, nor was it
1 so understood.
The power of making war is confer
red by these characters on the colonies,
hut defensive waralone seems to have been
contemplated. In the first charter to the
first and second colonies, they are em
powered, •* for their several defences to en
counter, expulse," repel, and resist, all
persons who shall, without license,” at
tempt to inhabit •‘within the said pre
cincts and limits of (lie said several colo
nies or plantations.”
The charter to Connecticut concludes
n general power to make defensive war
with these terms : “ Amt upon just causes
to invade and destroy the natives, or o
ther enemies of the said colony.”
The same power, in the sumo words,
is conferred on the Government of Rhode
Island.
This power to repel invasion, and. up
on just cause, to invade and destiny the
natives, authorizes otiensive as well as
defensive war, hut only “ on just cause."
The very terms imply the existence of a
country to be invaded, and of an enemy
who has given jmt cause of war.
The charter to William Fean contains
the following recital: “ And because, in
sp remote a country, near so many bar
barons nations, the incursions, as well ol
the savages themselves as other ene
mies. pirates and robbers, may probably
be feared, therefore we have given,” &c.
The instrument then confers the power
of war.
These barbarous nations whose Incur
sions were feared, and to repel whose in
cursions the power to make war was gi
ven. were surely not considered as the
subjects of I’cnii, or occupying bis lands
during his pleasure.
The same clause is introduced into the
charter to Lord Baltimore.
The charter to Georgia pi ofesscs to lie
granted for the charitable purpose of en
abling poor subjects to gain a com
fortable subsistence by cultivating lands
in the American provinces, ‘‘at pre
sent waste anil desolate.’ - It recites:
And whereas oar provinces in North
America have been frequently ravaged
by Indian enemies, more especially that
of South I‘aroliiui, which, in the late war,
by the neighboring savages, was laid
waste by tire and sword, and great num
bers of the English inhabitants miserably
WUernon- 3*3,
nassaercd; and our loving subjects who hoi
,ow inhabit there. by reason oi tin Iji
madness of their numbers, will, in case oi
)l any new war, he exposed to the like
•aiainities, inasmuch as their whole c »
Southern frontier continued! unsettled, ahj
, m | lieth open to the said savages. jet
'l'hese motives for planting the new
colony, are incompatible with the lofty m ,
ideas of granting the soil, and all its in- tic
habitants, from sea to sea. They demon- lis
stratethe truth, that these grants asseit
ed a title against Europeans only, and P°
were considered as blank paper, so tar
as the rights of the natives were concern- (h
ed. The power of war is given on! y for
defence, not for conquest.
The charters contai s passages, show- s |
in< r one of their objects to be thcciviliza- w
tion of llie Indians, and their conversion
to Christianity—objects to he accom- in
•dished by conciliating conduct, and good
example; not by extermination. e '
The actual slate of things, and the
practice of European nations, on so much
of the American continent us lies between 0
the Mississippi and the Atlantic, explain ,|
their claims and the r.lmrtcrs they grant
ed. Their pretensions unavoidably in- r
terfered with each other; though the dis
covery of one was admitted by all to s
exclude the claim of any other, the es- t
tent of that discovery was the subject of :l
unceasing contest, liloody conflicts 1
arose between thorn, which gave impor-
lance and security to the neighboring a
nations. Fierce and warlike in tbeii g
character, they might be formidable ene
mies, or effective friends. Instead of ,
rousing their resentments, by asserting i
claims to their land, or to dominion over t
their persons, their alliance was sought i
by flattering professions, and purchased
by rich presents. 'I he English, the j
French and the Spaniards, were equal- |
ly conipetitors lor their friendship and
their aid. IVot well acquainted with (he '
. exact meaning of words, nor supposing
, it to be material whether they were call
, ed the subjects, or the children of their
I father in Europe : lavish in professions
. of duty, and affection, in return for the
rich presents they received; so long as
their actual independence was untouch
ed, and their right to self (government ac
knowledged, they were willing to place
dependence on the power which furnish
cd supplies of which they were in abso
lute need, and restrained dangerous
intruders from entering their country :
and this was probably the sense in which
the term was understood by them.
Certain it is, that our history furnishes
no example, front the first settlement ol
our country, of any attempt, on the part
of the crown, to interfere with the inter
nal affairs of the Indians, further than
keep out the agents of foreign powers,
who, as traders or otherwise, might se
duce them into foreign alliances. The
King purchased their lands when they
were vvillingto sell, at a price they were
willing to lake; but never coerced a
surrender of them, lie also purchased
their alliance and dependence by subsi
dies ; but never intruded into the interior
of their nllhirs, or interfered w ith their
self-government,so far us respected them
selves only.
The general views of great Britain,
Willi tu tliv 2ni)ic«n-~, nciC tlclllii
ed by Air. Stuart, superinlendunt of In
dian affairs, in a speech delivered nt .Mo
bile, in the presence of several persons
of distinction, soon after the peace of
1763. Towards the conclusion, ho says,
‘‘lastly. I inform you that it is (he king's
order to all his Governors and subjects
to treat the Indians with justice ami hu
manity, and to forbear all encroachments
on (he territories clotted to them; au
! cordingly ail individuals are prohibited
I from purchasing any of your lands; but
as you know, that your white brethren
cannot Iced you when you vie it them, un
less you give them grounds to plant, it is
expected that you will cede lands to the
king for that purpose. But, whenever
you shall be pleased to surrender uny of
your territorities to his majesty, it must
be done, for the future, at a public meet
ing of your nation, when the governors
of the piovinces, or the superintendent
shall be present, and obtain the consent
of all your people. The boundaries of
your hunting grounds will be accurately
fixed, and no settlement permitted to be
made upon them. As you may be assu
red that all treaties with you will be faith
fully kept, so it is expected that you, n!se,
will be careful strictly to observe them/’
The proclamation issued by the King
of Great Britain, in 17(33, soon after the
ratification of the articles of peace, lor
bids the governors of any of the colonies
to grant warrants of survey: or pass pa
tents upon any lands whatever, which
not having been ceiled to, or purchased
by us, (the King) us aforesaid, are reserv
ed to the said Indians, or any of them.
The proclamation proceeds “ and we
do further declare it to he our royal will
anil pleasure, for the present, as afore
said, to reserve, under our sovereignty, protec
tion and dominion, for the use of the said Indi
ans, all the lands and territories” “ lying to (lie
westward of the sources of the rivers which full
into the sea, from the west and northwest as
aforesaid : and we do lieieby strictly forbid, on
pain of our displeasure, all our loving subjects
from making any purchases or settlements what
ever, or taking possession of any of the lands
above reserved, without our special leave or li
uence for that pur; *.se first obtained.”
11 And wo do further strictly enjoin and re
quire all persons whatever, who have, either
wilfully or inadvertently, seated themselves tip
on any lands within the countries above desorib
, cd, or upon any oilier lands which, not having
been ceded to, or purchased by us, are still re
served to the said Indians, as aforesaid, forth
with to remove themselves ftom sucli settle
ments.
A proclamation issued by Gov. Cage in 1772,
contains the following passage : ‘‘U liereas ma
ny persons, contrary to the positive orders of the
King, upon this subject, have unde, taken to
make settlements beyond the boundaries fixed
by the treaties made with the Indian nations,
which boundaries ought to serve as a barrier be
tween the whites and the said nations;” parti
cularly on the Ouabache, the proclamation or
ders such persons to quit these countries without
delay.
Such was the policy of Great Britain towards
the Indian nations inhabiting the toiritory from
which she excluded all other Europeans) such
hei claims, and such her practical exposition of
the charters she had granted; she considers
them as nations capable of maintaining the rela
tions of peace and war; of governing them
selves, under her protection; and she made trea
ties with them, the obligation of which she ac
knowledged.
This was the settled state of things when the
warof our Revolution commenced, The influ
ence of our enemy was established; her re
sources enabled her to keep up that influence;
and the colonists had mucli cause for the appre
hension that the Indian nations would, as the al
rs of Great Britain, add their arms to burs „
his, as was to be expected, became >-n HHg
great solicitude to Congress. Far from J a j. Him
incing a claim to their lauds, or asserting any I
ght of dominion over them. Congress rosolv It I
I “that the securing and preserving the fiend. H I
lip of the Indian nations, appears to boa sub" I ‘f.
ict of tlie utmost moment to these colonies.” H 1
Tlte early journals of Congress exhibit the , 'IBH
tost anxious desire tu conciliate the Indian na. |H
ons. Three Indian departments were estab. I
sited, and commissioners appointed in each • I M
1 to treat with tire Indians in tiieir respective de'. M* *
artnreiits, in the name and on behalf of tb e VH
nited colonies, in order to preserve peace and E34,
riendship with the said Indians, and to prevent 1 \
heir taking any part in the present commotions.” I »
Tlte most strenuous exertions were made to
irocure tlrose supplied un which Indian friend- ( 1
hip was supposed to depend, and every thing I f
vliioh might excite hostility was avoided. 6 I ®
The fust treaty was made with the Delawares I.®
n September, 1733.
The language of equality in which it isdrawn ■ '
jvinces the tomjier with which the negotiation JH
was undertaken, and tlte opinion which then pre
vailed in the Foiled Slates.
Ist. That all offences or actsof hostility,hv
one or either of tire contracting parties against
the other, be mutually forgiven, and buried in
the depth of oblivion, never more to be had in j
remembrance.
“2d. That a perpetual peace and friendship
shall, from lioncefortlr lake place, and subsist hr- |.®j
tween the contracting parties aforesaid, through <®l
all succeeding generations : and if either of the
parties aio engaged in a just and necessary war, j®
will) any other nation or nations, tliat then each HH
shall assist tlie other, in due proportion to their EM
abilities, till their enemies are brought lores- BH
Bonablo terms of accommodation, Ac. I %
3d. The third article stipulates, among other I ®
things, a free passage for tlte American tioupi I a
through the Delaware nation, and engages that I A
they siiall bo furnished with provisions and other I |
necessaries at their value. 1 *
“4th. For tlie better security of the peace ■
and friendship now entered into by the cun- ■ \
Uacting parties against all infractions of the ■ j
same by the citizens of either party, to die pi». I f
judico of the other, neither party shall proceed
to the infliction of punishments on the citizens of I !
tlte oilier, olliorwise tiun by securing the often, I ’
der or offenders, by imprisonment, or any other I
competent means, till a fair and impartial trial I
can bo hud by judges or juries of botli parties, I
as near as can he to the laws, customs, and usa- I
ges of the contracting parlies, and natural jus- ■,
ticG ** t&C* 2
stii. Tlie fifth article regulates tlie trade lie. H
tween tlie contracting pailies, in a manner en- j
tirely equal. ® >
6th. The sixth article is entitled to peculiai ■
attention, as it contains a disclaimer of designs ■
which were, at tliat time, asctilied to the Fnited
Stales, by their enemies, and from tlie impnla- I
I lion of which Congress was then peculiarly mis- B 9
ions to free tlie Government. It is in these H
words: “Whereas llie enemies of the United I
ytates have endeavored by every article in tiieir I
power, to possess the Indians in general with an ■
opinion that it is tlie design ot tlie fetates albie- I
said to extirpate tlie Indians, and take posses- H
sion of their country: To obviate sui li IVsc ■
suggestion, llie United fetates do engage to gu it- I
anlv to llie aforesaid nation ot Delawaies, and
tiieir hciis, all tiieir territorial riglils in the fid- ■
lest and most am; le manner, us it hatli been I
bounded by former treaties, as long as the said I
Delaware nation shall abide by, and bold fas,, I
the chain of friendship now entered into.”
Tlte pailies further agree, tliat oilier tribes. I
friendly to tlie interest of the United Sinks I
' may be invited to form a Stale, \\ ho oi llie ltd- H
awai e nation shall be the head, and have amp Hj
' resentation in Congress.
This treaty, in its language, and m ns provi- Rfl
, sions, is formed, as near as may be, on the iimiu. H
■ ~l* ticatics bclwwsoi tile crowned lieuds ot - J
. Europe. \
Tlie sixth article shows how Congress tiled M
. treated the injuiions calumny of cherishing de ®
'. signs unfriendly to llie poliiical and ciul iiglik .Jj
of llie Indians.
1 Dining the war of tlie Revolution, the Citato
* kees took part with tlie British. After its ten
1 initiation, the United Stales, though desirous n.
peace, did not fee) its necessity so st.oi gly as
i wliile tho war continued. Their political situ
. ation being changed, lliey might very well ih'tik
| it advisable to assume a higher tone, and to tin
[ press on tlie Clierukees the same respect ki
Congress which was befoie full for tlie Kmgc.
Great Britain. This may account for the lan
guage of llie treaty of Hopewell. There is llie
’ more reason for supposing that llie C 1 erukeit
' chiefs were not very critical judges of the h‘ n ’
guage, from the fact that every one makes Ins
i‘ mark; no chief was capable of signing his name,
t It is probable tiro treaty was interpreted k I
them, I
s Tlie treaty is introduced with the dcclaratmn,
. that “The commissioners Plenipotentiary ot tin
. United Stales give peace to all tlie (. herokew, |
. and receive them into tho favor and prolccttun j
of the United States of America, on tlie (olluw- ’J
r ’ ing conditions.” x
J Whop the United States gave peace, din tlmy
- not also receive it ? Were not both parlies de
sirous of it 1 If we consult llie history ot in |
, day, does it not inform us that tlie United Sink* ||
’ were at least as anxious to obtain it nathc- t nc- B
r rokocsi Wo may ask, further: Did the Clioio- I
j kees come to (lie seal of tho Ameiieau Govern- ■
, monl to solicit peace; or, did the American com- |
misioners go to them to obtain it I Iho be- 11 .’ I
' was made at Hopewell, not at Newk. D
word “give” llien, lias no real importance at- i
1 tached to it. ,
I Tiie first and second articles stipulate for ma
- mutual restoration of prisoners, and ul course j
squill.
. I'he third article acknowledges the Cherokee* j
J to be under the protect ion ot the United States
of America and of no oilier power.
Tlris stipulation is found in the Indian treat i s .
with Great B.iluin ; and may probably bo loun;
, with those in other European Powers. Its on '
j gin may be traced to tire nature ot their cun
s nexion with those Powers; and its true incaniUo
, is disceined in their relative situation.
The general law of European sovereigns, re--
peeling tiieir claims in America limited the in
-3 torcou so of Indians, in a groat degree m tin
pa ticular potentate, whose ultimate right o
domain was acknowledged hy tlie others.— t
Tlris was tlie general state of tilings in 0 !
~ peace. It was somotitnes changed in war.-
. The consoqtience was, tiiat their supplies were
. derived chiefly from that nation, and their t.ai
y confined to it. Goods, indispensable to tic
’ comfort, in the slrape of presents, wore rceeiu 1 -
. from tlie same hand. What was ot sti.t mu '
. importance, tlie strong hand of Government"
interposed to restrain the licentious and d!r0 _
deily from intruding into tiieir country, koine
’ croachmentson tiieir hands, and from those ac -
of violence which are often attended hy t ?cl i
3 cal murder. The Indians perceived in tins pm
? tcction, only what was beneficial to ihcinscv c
an engagement to punish aggrossois on ! hc ,n
> It involved practically no claim to tiieir lant ,
no dominion over tiieir persons. It
bound llie nation to the 3 itisli crown, as a ( \
pendent ally, claiming tho protection of a po"
1 erful friend and neighbor, and receiving n
vantages of that protection, without invoke
5 a surrender of their national character.
1 ( To be Concluded in our
s n—pWEarc author!zed to ttnuoun"
- LL_f GEO. W. WALKED. Esq. a
• a CumlitltAe for the uppuintmerit o
Juclgre of tlie Inferior (lourt of
tnond County, at the ensuing Election
B mnreit 21 1
r> NORTH CAROLINA BA> h
. jj_ j NOTES will be reeeived al 1,1
! all payments due at „ .
ALLENS & PADLOCK S Ofa