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t
,romaUnll< gir.neoto thr-BritisH crow n
IfiitlaiA 44 free ar.d mdepomknt slat*
.« (in can/* deration With h©r sister states)
faff full putter to levy w \r, conclude peart*,
contract alliances, establish commerce, ami
do nil other acts and things iohii-h an indr-
pendent state may of right, do " By the
trratv of 1782, (trout Britain nrkmuvlcdz-
rd the thirteen confederated stnios, Georg in
feeing one. 41 to hufrer, sovereign and inde
pendent slat©*,” 6nd relinquished in express
words “nil chums to tli»: (Soreminent,pio
pritty and territorial rights of the same ”
The neoplc of Georgia hating hern thus
)hvetted with every specie* of sovereignty
as claimed uud exercised by Great Britain
qvit tho soil and territory within her limits,
in the same ample, uncontrolled and unli
ted manner as the same has been possi
od by that power, it is now noecs.-mry to
quire whether she has divested herself of
any portion of her sovereignty, by any net
or compact, bet ween herself and her sister
There are only three of such ft Ms or com
pacts, to which sho was a party, by which
it enn ho contended, she made any such re
linquishment of sovereignty, cither as to
domain or empire. They are 1st. The
articles of confederation. 2d. The Fede
ral constitution, and 3d. The articles of
agreement and cession concluded between
the United States and Georgia on24tli April,
1902. Kach of these will he examined in
their order.
1. The artu lea of confederation. I might
save myself nil tnnihle of examining this
instalment because whatever provisions it
contained have been ahrngati d by the Fed
eral Constitution, which whs adopted in its
stead—But it will he profitable to do it, Ihj-
cau«o many of the provisions in express
word k and many morn in principle, were
transferred to the constitution.
The articles of confederation became
binding on Georgia, on 24tli July, 1779,
before which time she had not accorded to
them.
The 2d article of this instrument fixed tit
rub’ of its construction by doclnriug that
44 endi sttltc retains its sovereignty, frne-
dom and independence, and every power,
jurisdiction and right, which is not by this
confederation expressly deleg ited to the
United States in Con^resi
The sovereignty, right, jurisdiction and
* not expressly" rr.intcd, arc retained by
•acli State. Vet I thiiiK the period ha* not
yet arrived, in which it will not lie admitted
that the federal government, not only do not
posMtsall powers, nor indeed nil power>
not prohibited, hut that it con rxcrriiH only
such power ns is expressly yielded, or such
as are plainly implied in and necessary U
execute the express powers This princi
ple was not only admitted hv thq framers
of the constitution, ns is evident from the
journal of tho convention, and Yates* notes,
tmt is warmly insisted on bv nil the early
friends of the r nictitation •• * o supported
its adoption in tin* Hint© rosr. eiitinns, and nil
the early and approved contemporaneous
expositors of it. To prove this, let tho pub
lished debates of the Etote conventions, and
the letters of Madison. Hamilton and J.iy,
under tho title of the Federalist, bu consul*
led
In perfi-ct accordance with this principle
nnd analogous to the provision quoted from
the 2d article of the confederation, up
on the express requisition of tlm people
of the sc vend States, ns expressed through
their representatives, in the several con
ventions, two 1101**11 Imcnta were propos
ed and adopted, the first declaring, that
“the enumeration in tlio constitution
certain rights, shall not be construed to de
ny or disparage, others tetnined by the peo
ple,“ and the 2d that “ the novveis not de
legated to the United Stat** by the constitu
tion, now prohibited by it to the States, are
reserved to the States respectively, or to the
people.” In conformity with the plain ahd
obvious meaning of these two clauses. I
shall admit no delegation of powor to the
federal government, express or implied,
which in snv manner denies or di spa rag
a right clearly reserved by the people of
Georgia.
Before proceeding further, it should al
ho rcmornbcfcd, tli.it this very subject of
territorial rights and sovereignty, nnd tli.u
of slavery, had well nigh broken up the fed
oral convention and destroyed the hopc9 of
a happy termination of its labors. Sopi
the States who had no vacant lands insisted
upon a participation of those who had—
Nothing Imt the judicious exertions of the
Father of his country was sufficient to
prevent tho dissolution of that assembly.
With these premises nnd facts before us
1 proceed to enquire. 11 In what part of
the constitution tins Georgia surrendered
power of Georgia over her soil and territory ' nn y portion of that sovereignty and right of
of the Indians, wo have Jornnin in and over
in the occupation
endeavored to ascertain up to this period,
Slid shown to have been complete. What
portion of it did sho part with, by this con
federation 9
By the (Jth atticlo, tho state* were pro
hibited to enter into any 11 conference,
agreement, or alliancn, or treaty, with any
king, prince or state " Wo shall soon sec,
that bv the practice and universal acquies
cence of all the states, this was construed not
lobe a prohibition to treat with Indian tribes,
who of course were not considered as
“ Kings, princes, o r stairs* 1
By the mum article*, tho states were pro
hibited to engage in nny war without the
*: lineal of the United states, unless inva
ded, nr had received certain uilvico of a re-
■ lution by smm. nation of Indians to invade
By the 0th article, Congress was vested
with solo and exclusive power and right, to
dctcrmiric on pyaco end war, sending and
T0cciv4h£ Ambassadors, “ entering into
treaties nnd alliances ," and further on in
tha same article, it is vested with tho pow
er of “ regulating tjude, and managing all
i.lTiirs with tho Indians, not members of
any State; provided that the legislative
rignt of nny State within its own limits be
not infringed oi violated,” &c.
It is hulieved that these nro ell tho pro-
visions of that instrument which have n
hearing on the question, nnd so fir are any of
these provisions from depriving the State
</f any portion of its rights of domain or
rmpirv, over the soil nnd territory within its
own limits, there is in tho latter a provision
« \press!v reserving to thu State its right
of legislation within its own limits —
In its practical construction the Indians
wore not deemed “ K ings, Prine.cs or Staton,”
with whom it was forbidden to the States
to make treaties. For in fact Georgia and
mnnv other States, made many treaties
with the Indians, especially iliiwo within its
own limits, intermediate the times of ratify
ing tlm utricles of confederation and the
nd'xption of tho Federal Constitution —
There is in our statute hook no less than
Jour treaties with the Indians providing for
the relinquishment of lands of great extent,
tJmamhcnticii v and validity of which were
ftffYcr doubted.
It is doubtful at the present day what
construction should ho placed upon the
power to regulate trade and manage all af
fairs with tho Indians, 44 not members of
nny State.” It is a notorious truth that for (i
yearn aftertho confederation was ratified,
almost all the Indians in tho United Slaton
were within tho limits of some State.—
AVithin that period Congress echumly did
Tegulato tra in with them. No part of the
territory of Georgia was ceded to tho Uni*
ted States until 1802 Yet even he furs the
adoption of t ho constitution Congress trou-
i« d with and regulated trade with the Indi
ans within tho limits of thin Stare. Tho
treaties at Hopewell 17e r >, to whi-h Georgia
«♦* an individual State, was not a party, suffi
ciently provo thiii fist. It may bo tli’ou that
the Indians alluded to as “ members of
any St ile” and with whom Congress could
iml regulate trade were such (and there were
enure in Virginia, Now England, and South
CaiiX'ma) as had been adopted into the so-
ciftl family of tho States ami over whom
tho operation of tho municipal laws of the
State was extended. But the decision of
this point iq^if no great importance. My
principal object is answered by shewing,
that although, under thu articles of confc.l-
oration, the States were prohibited to enter
into treaties with any King, Prim e, or
M.rto, or to engage in war. except in panic-
ul.tr quaes huforo mentioned, and the United
States wore vested with solo and exc lusive
power of determining on peace and war,
ponding and receiving Ambassadors; ca
tering into treaties and alliances, at.d lastly
was vested likewise with powor to rugnlate
trade & manage affair* with all Indians, «&c.
it never was conten led that her sovereign-
ty over thu toil witlfn her admitted limits
was impaired. On tlm contrary that slit*
might treat with the Indians and stipulate
for thoir lomoval, or circumscribo their
hunting ground*, fir adopt them as inetubors
of tho social compact, or finally extend its
legislation over i very thing and everybo
dy “ within He own limits,” upon points
Hot inciunpuBhlt with her own comtiiu-
non, nr tho urtio)os of confederation. In
short, it will be found thin Georgia patted
with more of irn sovereignty as th rived
f rom Great Britain hv the revolution, in ru-
lation to its right of domain, or of dispos
ing of the soil and territory within its limits,
and of deriving from it ovory supply of is
necessities, and other ad van lag* a which il
was capable of yielding.
2d. 11 a- Georgia yielded any of her sov-
rotgnty on this point, by the adoption of the
Federal constitution ? * The investigation of
this branch of the subject is sublimely im
portant, ns affecting, deeply affecting, tho
interests, the rights,the powers and remain
ing branches of sovereignty both of tho se
veral States and the people. I fool ns though
I should sink under tho weight of thu task
1 have undertaken Yot will 1 essut to
perform it. There is something like merit
even in failure to sustain such a causu In
t^e ey* s of all good republicans, 1 shall be
loaded with u« *ri grace
It is important at once to fix the prin
ciple* of con*ruction by which I shull
he governed It i» true that there is not
lh» f idera! constitution any such clause
Words as that quoted from tic second art)-
i \r of tho confederation, wz That powers
ur tlm territory and soil
within her limits, which 1 have attempted
to prove she derived from Great Britain.
I shall allude to such clauses of the con
stitution from which the surrender could he
inferred, seperately, nnd without much re
gard to the order in which they stand.
The 2d clause of the 3d section nnd 4th
article, rnay lie said to have some hearing
on the subject. It declares “ Congress
shall have power to dispose of, and make all
needful ruins and regulations respecting the*
territory or other property belonging to
the United States, and nothing in this con
stitution shall he soronstruednstoprejudice
any claims of the United States, or of any
particular State." This clause gives to
Congress no power to regulate or difpos * of
any other than her «/ro#'trrritoi v or other
property But it so happened that there
were those in the convention, who conten
ded that by the treaty of peace with Great
Britain, all flu* states nrquiind a right to the
vacant territory within the limits of tlm
United States defined by that treaty who
tlier within the limits of a particular State*
or not. There was at that moment a shad
ow of n contest between the United States
and.Georgia upon this subject, which was
not finally settled until the arriolcsof agree
ment anti cession were signed between them
in H02—yet at tho time of adopting the
constitution, the United Stapes h id acquired
considerable territory by cession ftntn Vir
ginia, New York, and other State.*. There
fore) it was necessary to give to Congress n
power to regulate nnd dispose of it. But
over that which did not belong to tho Uni
ted States, and had never been ceded, nnd
which dourly belonged to a State, Cougn
was vested with no power of regulation or
disposition If previous to 1902, she had
any chiims to territory within thu limits
claimed by Georgia, the United Staton did
not dorivo them from tlm constitution, hut
from the treaty of peace, or some difficul
ties pretended (and Bury wore only preten
ded) concerning boundary. But since
1802, th' *o difficulties have vanished. By
tin* articles of agreement and cession, sign
ed in that year, the claims of Georgia to all
lands referred to herself by that compact,
arc distinctly admitted and recognised.—
To tlm territory thus reserved, then, the Uni
ted .States have no claim, and of course Inure
no power of regulation or disposition —
Nay the claim of Georgia thereto being
thus admitted, there is nothing in any part
of the constitution which can or is permit
ted to ho construed to prejudice” it.—
Now what is that claim * \\ hat wits the
extent of it iu those fiom whom Georgia
derived it: It Was one of complete sove
reignty, of da main and empire, as wo lnvc
attempted to shov. Ilow wus it derived'
By the revolutionary war which terminated
in tho admission \>y Great Britain that
Georgia, as well ns each of her c.mfodora-
toil sistori*, within thoir every liiu.t, was a
44 free sovereign and independent State,”
to whom was relimj.ii.dicd “ all claims to
tho government, propriety uud territorial
rights of thu jiainu."* And thus, as wo
have seen, nothing of these claims have boon
yielded
The next clause I shall examine is that
giving to Congress the power “ to regulate
com me i co with tho Indian tribes' (3 clause
8 soc. I art.) To a candid nnird, the words
used in this giant of power, have nothin,
ilia
in t
nothing hidden, nohing doubt
ful, ffhdcr which an implied renunciation of
the right of domain whi- h the Suite had t»»
the soil vviilrn her limits can he inferred
Thu term “Indian tr.bos” sufficiently des
cribes them asa wandering people, vet in
tho butitor state, or certainly as not having
risen above that of herdsint n. But even
those could acquire things f u.»e or conven
ience, lor obtaining which it was .desirable
to have with them "commerce" or trad-',
that is, a mutual exchange of commodities.
Sunn of these were situated without, and
some within the United States. Were the
power of regulating this trade with them re
tained by tho several Slates, by rent riel ions,
imposts, and other inouus, an equal parti
cipution iu the benefits of tins trade, could,
by some States w hoso local situation ad
mitted it, ho denied to the citizens of tho
l uitod Slates in general. It was proper
therefore, that tho power should be confi
de.I to the Union, who could best “regulate
or establish general and uniform rules, by
which it could he conducted,so imthut its be
nefits shoiftd be equal to all alike, and grea
ter harmony ho preserved with the tribes
thoiuseUcji. Bui is it distinguishing too
nicely to say that in calling them “tribes,”
(v iiilo others, with whom the constitution
confers power to ** regulate commerce,” arc
called “ nations'*) tho framers of that in
strument intended to deny them a right of
domain to the country over which they
w underod or hunted ? It seems to me, it is
not There must have been some reason for
calling them “tribe*,” ondothvrs “nations,
and no other can he conceived. But he
that us it may, it is perfectly inconceivable,
that in assenting to this power, any £taie in
the Union intended to relinquish any pur
tiou of her sovereignty tailing under th
denomination of “ right of domain," other
wise they would never have insetted the pro
visions we haveqgoted, \iz: “ That notion:
in the constitution should be construed to
prejudice the claims of any 29tate," loth
unappropriated territory within her limits.
*1 he Kami.* remark * *
gards the only other
i*ee Trcitv oT Ponce
lion from which a renunciation ».f a right
of domain can h* 1 inferred, viz . tho power,
'• by and with the advice and consent of the
Senate, to make treaties, provided two
thirds of the Senators present concur.”—
This is a grant of power, which evidenth
looked to foreign affairs. In the articles of
confederation, n similar power had been gran
ted, with the addition of the words. “ w ith
any King. Prince, or State.” We have al
ready attempted to shew that by actual
practice, none of the States, conceived that
thin power in tho confederation, took from
them any portion of sovereignty involved
in the right of domain, because many of
them proceeded to remove from their unap
propriated lands, the Indians who occupied
them, smno by war and Violence, as did the
Stale of Virginia with respect toiler lands
on the Ohio and Kentucky river-*, mid «ome
by treaties and contracts, did New Yo*k,
Georgia, and perhaps aomo others N»»w it
is inconceivable that the omission of the
words “ King. Prince,or .Slate,” enu Imcon
strued po to enlarge the power, ns to infringe
any right of domain, before possessed by the
States. Thcro is however very strong
proof that some of the States d* I not thus
construe the grant. Tho federal constitu
tion had been ratified hv a competent num
ber of State* on 13lh September, 1788,(1
vol. Laws U S. p. Ik)) nnd went into full
operation on 4th March, 17eff, yot on the
22d Sept. 17S9,on2 r »thFeh. 17Kb nay nslat
iisIOthnnd 221 June, 17B0, contracts,called
treaties, wore made bet ween the Stnteof N
York and the Indians within her limits con
taining relinquishm* n’* of land for a stipu
kited price, and concluded by the Indians
with the authorities of the ytatc of Ncv
York alone, (see pages 319.20, Q] .22, of
1 vol. Laws U. S.) The validity of the
contracts 1 have never heard questioned,
and why ? Because these Indians being
upon land-* over which Now York possessed
a right of domain, and clearly within tl
jurisdictional limits of the State, it was con
ceived that there was nothing in the fed
al constitution which prevented New York
from entering into ariangetnentsorfua/Tarts,
with such Indians ptoporatory to snttl
I lie country, “ disposingof it as she thought
proper, ami deriving from it every advan
tage it vims capable of yielding/'
Better to elucidate my ideas upon this
subject, I must he pardoned fi>r what I four
may be deemed a digression from the point
immediately under dismission. I have said
tb it tiie sovereignty of u nation over flic
soil and territory of the country it has tak
into possession, consists of two rights
“1st Tlm domain, by virtue of which the
nation alone, mav use this country for the
wupplyof its neces3iti- s. may dispose of ii
is it thinks proper and derive from it every
idvantngo it is capable of yielding, and 2.
Flic empire., or the right of sovereign coni-
nand, by which the. mli >n directs and reg
ulates at its pleasure every thing that posses
the country.” 1 have attempted to show
that such sovereignty was possessed, claim
ed and exercised by Groat Britain before
the involution, and by the revolution was
transferred and acknowledged to he in th
people of Georgia Now, 1 do not contend
that no portion of the sovereignty thus ac
quired, has not been yielded ; hut 1 insist
that upon the minutest examination I cannot
discover (nor do I believe.) that any portion
of that sovereignty, as comprehending tlm
right of domain has boon yield' d until
hut that what has been yielded, fills
under the second branch of sovereignty,
comprehending tho right of empire. In
other words that although Georgia cannot,
since the lulnptinn of the Federal Constitu
tion, direct and regulate at its pleasure eve
ry thing th it passes in tlm country, because
hv the constitution she has vested in the
departments of the f-dorul govern neat pow
er to direct and rrgulato many things, yet
♦even now she possesses the power to use
the country for the supply of tho necessi
ties of tho people of tlm state, may dispose of
it as she thinks proper, and derive from il
every advantage it is capable of yielding.
This remark however is applicable only to
sucli parts of tlic territory acquired by the
revolution, as she reserved to herself by the
articles of agreement nnd cession of 1902,
with tho United .States, for by tlioso articles
she ceded and renounced all individual claim
to both domain and empire t* the country
thcreih ceded.
This opinion is supported by many de
clarations nnd principles insisted on by the
s ■ondcst expositors of the constitution.—
Mr. Madison in one of the numbers of the
Federalist, declares that *' tho powers dele
gated by the constitution in tlm federal gov
eminent nro/rrr and defined. Those w Inch
remain to the states arc numerous and inde
finite. The former will be exercised prin
cipally on external objects, as war, peace,
ncgocintion, and foreign commerce ; with
which la^t the power of taxation will for
the most part be connected.” (These are
all acts of sovereignly belonging to the right
of empire ) 44 The powers reserved to the
sever d states w ill extend to nil objocts,
which in tho ordinary coiii'ac ofnlfiirs, con
cern tho lives, liberties ami properties ol
the people ; and the internal order, improce-
meat nnd prosperity of tlm state" some of
these belong to the branch of empire, while
those connected with the “ improvement
nnd prosperity” of the state, if th y do nut
necessarily grow ont of the right of domain,
arc so intimately oonneeted with it, as not
easily to be < xercisod without it. There is
certainly no “ defined poirrr" in the consti
tution giving to the federal government the
sovereign right of domain claimed hv Geor
gia over her vacant territory, and that the
federal go vein incut was not intended to
exorcise it by nice construction is evident
not only from the amendments of tho can-
b.itiiU.ni before quoted, but is nim li more
so from the repealed declarations of tuany
of the states contained in their rustications,
in which limy emphatically say “ that ev
ery power, jurisdiction and right not clearly
delegated to the Congress of the United
Skates, or tlm departments of the govern
ment thereof, remains to the people of the
several states, or their respective state gov
ernment* to w hom they may have granted
tho samo.”* This, then, was llio sense in
which the parties to tint instrunm’it confirm
ed the grant of pow ers and it would he
treachery to tin* rights of the people anil the
States, to say that it was to lie Construed
any other sense thgn that which the
to it entertained of its provisions
doptrd.
There is upon this point one otlw
thority, with which I shall coin hide this
branch of tho discussion, proving beyond
doubt th» Row-roigli right ol domain in the
State ofGooigia, to the territory in question.
II is tho opinion of the Supreme court *n
the east) «.f Klelchsr & IV* k, 6 Crunch.
Hep p c?7. Thai court confirms tlm opin
ion 1 have advanced in relation to (lie sov
ereignty of the British crow u, und adverting
to the pioc hnn.ition of 1703. wherein ♦ er-
Uiiu laud; are resernd for the use of the In
dians, it says, “ the reservation for the use
of die Indians appear* to he a It mparary ur-
rnugemeut, Fiixptmdiug for a trim, the set-
tit mint of the country rescind, and the
povvcis of the royal governor, within the
territory reserved," Ate. llero is at once
an admission of the right of domain. The
royal Govcrtnom might or might not, sus
pend the settlement of the country. It was
in i*.s discretion to repeal the a<u of suspen
sion. Tho same power was transferred to
Georgia, who did for.n lung time
a ted lands
manner as
is a proposition •»«»» .u u« • •— r ...
And (in page, 142-3) in thC’name case it 'if children foil
within its own fiiii*.a, i;. «u.h fl ucsa arc l him
its own judgment shall dictate, jorder, and arc i
lion not to he controverted.”—^ participating in
lecided that tho nature of the Indian title
was nut ssrh as to be absolutely ropugnnni
a seizin in fee on the part of the stat*^
These principles, if correct,leave no doubt
of the sovereign right of Georgia—The de
cision hist adverted to has been made upon
a circumstance which took place long s non
the adoption of the constitution, and in no
part of it, is it even hinted, that cither the
power to regulate commerce with the Indi
ans Or the power to make treaties, in the
slightest degree impaired tho rights of the
State.
It may not he amiss in discussing this head
of our subjort, to ♦ nquird into the nature of
the relation in which the Indians stand to
the United States, nnd to the State of Geor
gia. Aro they an independent people, dis
tinct from the people of the United States,
not subject to its government or laws, and
consequent\y foreigners having tho right of
self government ? Or nro they a subordi
nate people, subjects of the United States,
owing it allegiance, and enti led to its pro
tection ? In w hat relation do they (or such
of them ns live within her defined limits)
stand to the Elate of Georgia ? Are they
citizens, denizens or aliens, or inhabitants
resident on her soil under the operation of
her laws ? Or are they subjects of an in
dependent foreign government over whom
Georgia.rnn lake no legal or political con
trol, and consequently to whom the opera
tion of her laws can never be extended ?—
No doubt enn exist, blit that their relation to
one or the other government is anomalous ;
bo much so that it is at present utterly im
possible to give to it a name. Were we to
ud of eiiizens of an inferior
united to society, without
al! its advantage*. Their
the condition of their fu-
judge of the relationship from the manner
in which the United States have treated
ic nniticii
wlicu a-
Georgia, who did torn lung time, cxfcrci»ej
the sa.nu powor of suspension, and man
repeal it w hen she pleases. In another pan
of the decision, p. 129, the right of domain
them, in the exercise of tho treaty making
power, thev are to nil intents and purposes,
ns to that Government, u foreign nation,
because iu treaties, they uro thus viewed,
and on the part of the United States, the
treaties thus made with them undergo all the
constitutional forms. Whereas the treaties
or compacts withthc States undergo no such
ferins, inasmuch as the constitution of the
United Elates, knows of uo six h thi
1:6 itv with those who owe it allcgianee—
Thus all the treaties with the Indians arc
ratified by the Senate and arc deemed void,
until ratified. On the other hand the treaty
or compact nijule with Georgia in 1802, bv
which a Inigo territory was ceded, under-
went no su h ratification, nor was it deem
ed necessary—Yet the Indians resident with
in the limits of .the United States, are not
deemed vested with the right or power of
filming treaties with other nations than
the United States, and in case they should
make such, they are deemed to he utterly
void. Nay this strong .language of the go
vernment lids repeatedly told them that they
were a subordinate and dependent people,
and that their own ideas of their indepen
denre were fallacious & must bo yielded 1
have before me a letter fVnm the late Secretary
at'War , to Gov. McMinn, agent of the Chero-
kees, in which he says, “ it is iiyvain for the
Cle rokr.es to hold the high tone which they
do, as to their independence as a nation”
Thcro are many other public documents
from the same department (nono of which
I have, hut l well rocnlloctto have read,) in
rwhicli the principle is asserted, that they are
and ought tob ; treated as a dependent nnd
subordinate people. These documents
pAsily obtained in ease of contradiction
If then they nro dependent and subordi
nate, to what government ami laws are they
so 9 Those of the United States, within the
States, extend only to Federal concerns, ha
ving but few municipal characteristics. To
subject them to the operation of these alone
would ho doing notlung, except as respects
such Indians as may live within the limit
of a territory of tho United States. Are
they subject to the laws and municipal r<\
illations of the States within whoso limits
they are ? Heretofore (since tho adoption
of the Constitution,) tin* States have not ox
tended the operation of their laws to them ?
Are they restrained from doing it and by
what ? By the constitution of the United
Elates, and in what part of it ? Bui sup
pose a State to do so in what character would
tho Indians come into tho social compact ?
As citizens? Heretofore they were not
deemed such, and if they were not, a state
has no power to make them so ? The work
of naturalization, or converting foreigners
into citizens is exclusively Confided to the
United States, through the instrumentality
of unifurm lairs or the subject. But has
Congress power to force upon n State any
porsons they think fit as citizens ? Sup
pose that body pass laws converting the In
dians into citizens ol the several States with
in which thev are found. Would the
State he hound to receive them as such no
lens rolcns, and of courso extend to then
all the privileges belonging to her other cit
izons ? To concede this power to the fede
ral government would be of dangerous ten-
deify Are the negroes of tho Southern
States,/, cc or bond, Ml«Ci>* ? The people of
the Southern States fifty no—Ktbcn Congress
ran convert ono portion of the inhabitants
of a state, called Indians into citiZt&A, then
by the exercise of a like p >wor she can Con*
vertanothor portion of tho inhabitants of
the same state,'called negroes into citizens.
If they make a citizen of an Indian, what
hinders them flroni making a citizen of a
fnc ntgro, nnd if they can nuke a citizen
of a free negro, wh.it hinders them from
naturalizing slave negroes ? I forbear i
urge this enquiry further at this time. Yet
tlm period is not distant, probably, when
the question must be discussed. Efforts of
a most energetic character are making for
tin* civilization of.the Indians, eporiallv
those within the limits of Georgia. W«* arc
told of their advancement in the work —
With some it is declared to he near the
point of its accomplishment. Tlm Chero*
kees have been so flattered as to their |i
gresi, that they have at one time declared
independence The United Elates have
forced them by threats to retract this decla
ration, as .Mr. Calhoun would have us be
lieve in his correspondence with Governor
McMinn, before alluded to. But the avow
ed object of civilizing them is to introduce
them into the American family. liy whom,
hoie. and where is this to be done ? And if
hv Congress, bv laics, to he passed under
the power confided in the constitution to
“establish a uniform rule of naturaliza
tion,” and the Indians in (ieorgia aie bro’t
within their operation, is the state ofGeor-
gia bound by the constitution to receive
them as such ? And if they refuse, cannot
the l niti d St.iti s direct Gen. Gaines (n fit
agent, who would delight in the put
sad philanthropic work) to “ employ the
military force under bis command," to com
pel us to obedience ? Oil, how glorious are
the benefits drived to a free people from
military chieftains,” and a standing “
tary force” under “ their command”
People of Georgia ! these things demand
and should obtain your serious considera
tion !
Thcro is, however, another point of view
in which, if the relation of the Indians to
the United States, and the State of t
gia, be considered, some of the difficulties
we have presented may ho obviated. Vat-
tel (book l,c|». 19,) describes a kind of in-
llmhitants of a country differing from the ci
ftizons of it, in the following words : “ Th*
inhabitants, ns distinguished from the citi
zc ns, are foreigners, who ure permitted to
settle and stay in tho country—Bound to
the society by their nuodonce, they are sub
licorgu, i/inoru Ilt-nimh J;- ‘ »'* 0»o ).,««.,f the State, whilMhp re-
!■ That tl
’ retrain.''
tho Lvgi.hilurc uf lic.t^id, uni
il In' ilttt UlTt'VIVII. iiiuhmt . . - .
it try witain uer limit*. v f dupon*£ of thu uii.p.iropri- **partictpaU m all the right s „j
■ks may be made us rv I 4 wizens. They enjoy only the advantage-'
sr clause in tho Const it u-' • See B it.ftcstian of N York.p 427, Jour- whuh tho law, or custom gives them. Tin
SCSI
side iu it ; and thev are obliged to defend
it, because it grants th*m protection, though
I C.nvemiou—I lie Itaiihciuion of six perpetual inhabitants, are those who liav<
uilier • lutes contains a.uilar cluuvca. received the right of perpetual residence.—
thers ; and ns the Elate has given lo these
the rights of perpetual residence, their right
passes to thoir posterity .*'
In this point of view the Jews were, nnd
by sonic yet uro, considered by many civil
ized nations. In tho sumo situation at dif-
feffcpt periods, were many religious schis
matics considered. The Gipseys, or Egyp
tians, were somewhat of tho same order.—
i he slaves and free negroes of the United
States, certainly-full under this description,
and so in iny humble opinion, do the Indi
ans within tlu limits of Georgia That
we have taken from them the absolute fee
implc property of the soil,there is no doubt,
ind so the Supreme Court of the United
Etui oh have said iu their decision of the case
>f Fletcher A Peck, already quoted. Whe
ther this was done justly by the British go*
veminent, from whom irc the people, of
Georgia derived it, is not now the question.
It teas done:—and none but the enemies of
Georgia, or some hair-brained philanthro
pists will deny it. In fact the government
of the United .States dare’not deny it, for it
holds all of iis public domain and territory,
by exactly the same kind vf title. But I
have used certain exptessionn which require
explanation—I have said “ icc the people of
Georgia." By these words 1 mean the
“ white people of Georgia " Some may pre
tend to state at this explanation. Let them
do so until they are laughed at for their fol
ly 1 choose to call things by their proper
names ; uud as citizens of Georgia, 1 know
no others than while people, and wish to
know no others. The truth is, the continent
f America was discovered, conquered and
ccupied by the white people of Europe.
The white people governed it until the Uo*
volutionarv war. The white people of the
the United States declared independence,
and tliis declaration enured, and was in
tended to enure to their own exclusive be
nefit, however incongruous it may seem
with certain expressions in that declaration,
wherein it is laid down as a self-evident
truth, “ that all men are created equal,” (Ac
At that very moment none of the declare is
admitted the negro or the Indian to be his
tqisnl. With this declaration neither ne
grocs or Indians had any thing to do li
was the white people who fought and ac
complished their independence. It u as the
white people alone of the several provinces,
who afterwards formed themselves into bo
dies politic, and assumed the character and
name of a free, sovereign and independent
state. It wus with the white people, that
the treaty of peace was inude, and the white
people alone, constituting tho members of
the social body in each state, were ackrn
lodged by that treaty to be free, seven
and independent. It was the white people
of the Elates who entered into the articles
of confederation. It was the white people
who framed and adopted tho Federal < on-
siitution “ in order to form a more perfe
Union, establish justice, insure domestic
tranquility, provide for the common defence,
promote tin* general welfare, and secure the
blessings of liberty” to themselves and their
posterity. With all these important trans
actions, I repeat, the negroes and Indians
had nothing to do. All honest men will
acknowledge what I have said. Some moon
struck moralists may whine about »bc in
justice that the high pretending white lo
vers of liberty arc. doing to their sable fel
low creatures of their own species. Let
them whine; but let us be white people still.
But returning to the consideration of the
condition of the Indians. I have said that
the British government, whether By dis
covery, conquest, violence, or usurpation,or
by whatever other moans is immaterial,
sted and possessed themselves of the ab
solute fee simple interest, the absolute
right of domain over the soil within tho li
mits of Georgia, and that from that period
whatover tuvors were done to the Indians by
permitting their local residence upon tho
soil was of grace, favor and kindness, uud
not of right, under the principles of national
law, and in the rightfulness of this title tints
acquired, all the civilized nations of the
earth acquiesced. From that very moment,
the Indians became, ns to Gicat Britain
mere inhabitants of tho territory. Thev
agreed to place themselves, and the BritiJi
government agreed lo receive them unde
its protection, (see the proclamation of
1703.) Their residence on the soil was per
missive as has been said. By tho procla
(nation referred to, hunting grounds were
allotted, or reserved to them. This proc
lamation however, as wo have scon from
the decision of the supreme court, was a
“ temporary arrangement,” (and of course
could be repealed at pleasure) “ su»pe.ndi
for u time” (not permanently) “ the settle
ment of the country reserved,” but winch
settlement, by virtue of its sovereign rights
f domain and empire, tho British Govern-
•ubordinate tc her l»w» whenever she dlmo*
nes to extend their operation to them ; it
they so far as thev are within the limits of
Georgia arc members of that Statt,and have
been (according to their own agreement and
acknowledgement in the tioaty ot Gulphin*
ton,) has the United State* or any other
power, aright to make treaties with them
separately and distinctly from the constituted
authorities of Georgia ? It would seem
they hud not Hat not Georgia now, when
she shall choose so to do, not only a riifht
lo appropriate the lands on which the Indi
ans ure resident, nnd now use ns hunting
grounds, but t<s extend the operation of the
laws to them ns persons, inhabitants, and
members of tho body politic of that Stntc .
Ihi cartaiftly boa. Could not tho .State of
Georgia now enter into contracts or agree
nu nts with the Indians within her limits, a:
inhabitants or members of the State, os
she could with others, citizens and inhabit
ants, subject to her jurisdiction and lyws,
about their hunting grounds or any other
matter not forbidden by some permanent
authority ? If they arc her inhabitants,
she certainly* could. Would such contracts
or agreements, be in violation of the treaty-
making power confided to tho General Go
vernment ? It would not ; no more than a
contract between tho .State and oneol her
citizens in which an estate was bought. But
to putthisquestionatontetosleep. Suppose
the artielcHof agreement nnd cession of 1802,
had never been entered into. Could any
other State or sovereignty on earth, without
the assseut of Georgia, acquffe by treuly
with the Indians in her limits, nny earthly
right to nnv portion of the lands now on
joyed by them ns hunting grounds? Tlu
joyed by them as hunting grounds? The
most thorough advocate uf federal power on
earth, if ho be not insane, would not suy
they could
an/portion of her sovereignty by the aiti
oIoh of agreement and cession concluded
her continental possessions, these rather to
acquire the lands and settle them as their
wants and progressive prosperity required ;
nnd thcrcfoie preferred pun-haring there-
linquishment of possession hy the Indians
for trifling considerations, than to extermin
ate them. Tins, ns being more conformable
to the principles of humanity bag grown in-
ustom sanctioned in many instances by
laws, but which laws ure ail ^object to
hange oi repeat. By custo.tr tnen, tho
Indian-* are permitted to enjoy the advan
tage of hunting on the lands, an was their a
mode of procuring subsistence, until wej
wanted it, at which time those who had dis
covered and occupied it, and whose inten
tion it is to make it more extensively fcone-»L
a it.Y
ficial to mankind, have a right to take
It is better to get it from their permitted 1
possession without bin .d shed, if wo can. 1
But if we can not, our right to take it by \
v I
force, and circumscribe them to such narrow
limits as will force them to cultivate the }
earth as we do, for the comfort and advan
tage of the greatest number, is undoubted
upon every principle of national law. 44 \Ve
do not therefore deviate from the views of
nature,” says Vattel b. l.c. 19, in speaking
on tics right, “ in confining the Indians
within narrower limits.” Again, says he,
“ those nations who inhabit fertile countries
Ipit disdain to cultivnto the lands, am!
choose rather tolivo hy plunder, are wanting
’to themselves, are injurious to all theif
neighbors,& deserve to he extirpated as sova-
gesand pernicious boasts.” This description
conics Imt little short of our Indians. There
are others who to avoid labor, live by hunting
and their flocks—This might doubtless ho
allowed in lira first ages of tho world, when
tho earth without cultivation, produced
more than was sufficient to feed its small
number of inhabitants. But at present,
3d. Did the State of Georgia relinquish (when tho human race is so greatly multi
K dieil, it could not subsist if all njlons were
lisposed to live in that manner—Those who
with the United Elates in 1802? Elie did,' ^till pursue this idle mode of life, usurp
the territory therein ceded, but to the ter- ^morc extensive territories, than, with a rca
ritory reserved to herself, not an iota, that
Ind not been yielded by the federal consti
tution. No argument is necessary to prove
this
But there arc a few tilings glowing out
of these articles of 1802, that deserve no
tice.
The first is that all the things engaged to
he done by the United States ure to bo per
formed as conditions to tho cession made
by Gcargiu. Every body can understand
that whero conditions are annexed to a
grant, either the grants become void, or
the grantors heemno entitled to remu
neration bv action nt law for the breach of
the condition. But in contracts between
nations and communities, there is no way
of coercing remuneration but by force, for
there is no court to whom an appeal can be
made Consequent I v he can only contend
that the grant is void, and by force renos*
st'ss himself of the tiling granted, or ir lie
cannot do that, content himself with the
loss, aficr taxing the other party with n
want of good f.iitli This is exactly the
case with Georgia about these articles of
agreement and cession'. The United States
received a -cession of land from Georgia
upon several condition)), one of which was
that the United States should at llrair own
expeuso extinguish for the use of Georgia,
as early us the same could he peaceably ob
tained on reasonable terms, the Indiup title to
all tin 1 land within the reserved limitsof Geor
gia. Tho occasions upon which this could
have boon done have h* en frequent. Since
these articles were entered into, the Indians
have hern entirely removed from Ohio, Ken
tucky, North and South Carolina, Tenney
sec, Missouri, and almost all tho Arkansaw
territory, with nono of whom was there
any such contract. Five times as much
land as remained in possession of thu Indi
ans in Georgia, have been obtained in Ala
bnma, and much has been obtained in Mis
sissippi, (two Status formed out of the ter
ritory ended hy Georgia,) large Positions have
been made in Indiana, Illinois, Michigan,
and even Florida tho latest formed Territo
ry, will soon be a state in <
tho removal of tho Indians. A quarter of
.1 century has expired. Tho Indians li.-i
been literally driven within the roserved
limits of Georgia, and vot vve arc told the
United Elates could not fulfil this condition
A more gross, wanton, unjust nnd insulting
violation of good faith never disgraced the
nnnnlsof any nation !! Tlm contract
all intents and purposes void. But what
ran the Elate of Georgia do? By becom
ing a party to tho federal constitution, shef
gave up theswor
sword, and that purse aro at this moment,
employed against her to intimidate her from
inent could have prosecuted at its pleasure
Tin
ind discretion. Thus permitted to reside
on the soil, un^cr the protection of the Brit
ish government, they wero not received
in the character of citizens, they had
few rights of citizenship given to them.—
They were permitted to adopt their own
municipal regulations—To dispose of the
country they hid no right—To appropriate
;Ler manner than as permitted,
it lit any otL
they hiul no right, Their use of it was to
bo in common and Ofttip,severalty, the Brit
ish Government retpiou^; to itself the power
of disposing of il in sucTl manner ns to pro
mote its interest and prosperity at its own
discretion, as to time and manner. Under
this view of tho subject, the Indians were
os to the British government, mere inhabit
ants upon the territory over which it was
sovereign, and.on the transfer of the terri-
h. What can she do? Nothingbu
liumhlo and curio herself lor her folly.—
Oh my native State! a century of humi
liation and despair will not sufficicntl
atone f n tho error of having made that dii
astrous and wretched contract!! ,
But desperate ns your hopos arc from
this contract.it will ho well to enquire into
the nature and extent of your rights. Eup-
dosc you had never entered into this bar
gain, which has been ruinous to you and to
you only. Do you really never think or
did you think when you ratified lira consti
tution that you had given up your right
tory to the white people of Georgia, by domain to fur hy that instrument as that
n^e treaty of Gal-
7?o, it will be found
tho treaty acknowledging them to ho free
)V< reignand independent & relinquishing
to them all claims ofgovernment,property, &,
territorial rights of the same, the people of
Georgia received it with all the rights of
sovereignty that Great Britain held it, and of
courso as to them, tho Indians became mere
inhabitants. If then the British govern
ment could have settled the country, at its
pleasure, so could Georgia. If the Indians
wore under its protection, so wore they
thereafter under that of tho State of Geor
gia, nnd hy reti re
phinton, concluded in 17!
that the Indians renewed to Georgia the same
relation and subjection they had acknowl
edged to Great Britain, by admitting for
“ themselves nnd all the tribes or towns
within their respective nations, within the
limits of tho State of Georgia, hnee been.
and now are membets of the same,
since the day and date of tho constitution
of the said State of Georgia.” It the Brit
ish government could suspend and rc< o.u-
meucptiie settlementofthucountry, so could
Georgia. If that could assign or allot, or
reserve hunting grounds for the Indians,
and forbid for a time the suiveying and ap
propriation of the lands thus reserved, so
could, and so did Georgia. Could it repeal or
annul the uct of suspension ? So could
Georgia. There hoiug no law to forbid the
survey, (in case of repeal) little doubt enn
bo entertained that the grants and surveys
of the laud to individuals by Great Britain,
woulj have born valid under the British
government. E«> hy repealing the laws
heretofore passed forbidding the surveying
nd granting the lauds reserved to the hull
ing grounds of the Iiiduius hy Georgia
is little doubt can be entertained ofthcvnhdi-
y of the grants of Georgia. Iu fact when
Yazoo grants were issued, wus not the
.•hole country occupied hy the Indians, and
a» not tho Supreme court of the U. States
flared those grams to be valid and irre-
octible ?
If this view of the question he correct,
(nod it is submitted for the consideration of
tho neon!j of Georgia,) if the Indians with
in tne limits of Georgia are inhabitants.
[sonablo share of labor, they would havo
Joe casino fur, and have therefore no reason
to complain if other nations more industri
ous, and too closely confined come to tdko
possession of part of these lands” (see b. 1.
c. 7 ) In these principles Mr. Monroe con
curred in his first message to Congress,
however much disposed he was to tetract
in that wc have last quoted. If acting upi?
on these principles we proceeded to settlu
the lands allotted to the Indian^ for hunting
grounds, what is the most that national law
would tequire of us? To ascertain the
number of“ Indians within our limits—ap
propriate for them as much of the land, as
by the exercise of reasonable industry would ^
ho abuudnntlv sufficient to supply their \
wants and comforts. * The residue may /
justly apply to our own use. Would I
it lead to contention and blood shed?)
We must punish them. Would it force \
them to join theii brother savQgea be- I
yond the Mississippi? Eo much "the bet- '
ter. Sunli then is the Indian title in the i
most extensive signification which even a l
canting pretender to philanthropy can re- /
quire. Were this course to be pursued, it id
hulieved that the country now occupied brt
iho Crocks and Cherokee* in Georgia, (in-1
eluding that acquired by the late treaty))
amounts to little lessfthan 10,900,000 acres.
Fnr the support of all tho Indians within
the limits oi Georgia, 2,000,000, would be
more than sufficient. It is believed that the
country between the Ewtora and the Ten
nessee line, would moro than supply that
quantity. The residue might be appropria
ted and SP-ilod. and thus cm rease our
strength, o,r riches, our resources, our hap
piness ns a people, and our respectability us
a member of the Union,
i But for what end is all this discussion in
tended? Fellow citizens, I Lr.ftOton ma
king an attempt to demonstrate what I con*
qidor as a portion of your ovt-reign tights,
Reserved fur your own bene fit when the coiv
stitutiou was adopted and never yielded by
that instrume t, nnd never intended to be
yielded— Coul I we have rncoiv. d the lund
quern o of hpnder the late treaty, there had biuu no no-
~ r foessitv for this discu tiou. But it is proble
maticnl whether that tr. nty *v II over no ei*
termed. It is to ho s ihmittod to Congress
for repeal, as is distiivt'.y nvoved. Al
though made exclusively by tho agents of
the federal government, it is said to have
been the work of intrigue and treachery, by
one dopartinent of that government, and all
the machinery of tins federal colossus has
been and will be employed to annul it, and
tlirovv the odium of its formation upon the
constituted authorities of Georgia. Ehoulr}
this ho the issue of the present attempts I
shall have lost nil hopes ot acquiring any
thing more under our compact with the
United Statu*. That government is now
the enjoyment of her rights. She rnnnoi
retake the country ceded to tho U. States, 1 _
fortwo States havo been formed out of \\A too great and powcrful'to care about being
aim »st equal to herself in stiength, whose, [charged with bad faith. In refusing to ful-*
hatred has he.cn excited against her, arn
from whoso fertile lands the Umtecf State-
treasury has been enriched with millions
She is not permitted to contract for there
moval of tlio Indians, nor to remove them
by force. She lias remonstrated, and her
\ m C!
d fyi
yon never could by any exercise of pow
er in yourself, settle and appropriate tlm
vacant lands which became yours by the
treaty with Great Britain? Did you sup
pose that because you had vested in the
federal government iho power to 4 * regulate”
the manner in which blankets, guns, atnutii
,tion and trinkets, should bu exchanged for
[venison hums, deer skins and furs, (and this
♦iswhut 1 understand by Indian tr;iUc») vr
the power of making treaties with powers
entirely foreign to the United State?, that
yon were relinquishing any portion oi* your
rights to soil, cxpeoially when in the
instrument you provided that nothing there
in should he construed to prejudice your
claims to thu territory within your limits
Never! never!
B it it is in these articles that wc find the
words “ Indian title” arc used. The use
of these words iu this compact, Mr Mon
roe in one of his messages to Congress
(30th March, 1824,) says “ is a full prooi
that it was the clear and distinct undeistnn
ding of both parties to it, that the Indian
hgd a right to the territory, in the disposal
of which they wore to be regarded us free
agents.” Tho Supreme coutt too in the
case of Fletcher & Feck, say that the In
dian title is to he respected by nil courts un
til it is legitimately extinguished, (by the
bye that court did not icsprctit at all,) al
though it is not such as to be absolutely- re
pugnant toa seizin in lee on the pnrtofGcor-
gia. It is therefore necessary to enqtlii
somewhat moro closely into the nature c
this Indian title. The reader no doubt has
distinctly understood what my opinion of it
is. It is permissive; and it is upon thi.
principle that the Supreme court say theii
possession of it is not repugnant to a seizit
m fee simple in Georgia. If so, those wh<
give permission may withdraw it. Tin
truth is that their possession of, or title to it
is deriveable from mere custom, ut first per
mitted, nnd afterwards protected by law
made by those who hold the absolute or fi*<
simple interest. The colonizers of Nort*
America, disliking the exterminating spin
which actuated the Spaniards on the di-icov
ery of Hispaniola and Cuba, and same ol
refusing <
I its engagements and annulling as it will
“ * ‘ 1 '
( attempt to do, the lata treaty, its punitive/
/determination to injure this State is lufltc-
jiently manifested. So for from having em-
alloyed agents who would pave tho way to a
■ 'ill and final fullilinent of this compact, it
remonstrances like those of the colonies, 'has sent n me but Crowell’s, & Andrew* and
havo elicited nothing hut insult and re< Gaines, whoso unromitted exertions havo
>uti| been used to multiply obstacles, and who
— /Have * ’ •• •
o been permitted with impunity, nay
H with reward, to insult onr government and
vilify our public functionaries Thus fur re
monstrance ar.ii cou.plaint and request have
been equally disregarded. Whut then aro wc
to do ? Shall wo cease exertion ? Have we
indeed been dragooned by Gen. Gaines,
and 41 the forces under his command,” to
this state of slavish submission, worse than
a state of provincialism ? No, felfew citi
zens. This opposition will oply d^jyp us to
reinvestigate our rights. I have beofl ma
king this attempt, by enquiring into your
rights unconnected with tlm late treati, You
have been reverted, if 1 enn use such a word
to your situation before you entered into the
compact of 1802, and my object has been
to show what were your rights in that situc.--
tion. I have therefore attempted to prove.
1st That the sovereignty both ns to do
main nnd empire of Great Britain, over tho
territory and soil within the limits of Geor
gia, was complete, and that in settling and
appropriating the whole country, this gov
ernment could
J exercise a discretion control
led only by her own view* of policy and
propriety.
2nd. That this complete sovereignty, Lf
the revolution, passed to tho people of
Georgia.
3d. That ^ the Federal constitution she
lenouncod only a portion of sovereignty ap
pertaining to the branch of empire, but yiel
ded none appertaining to the right of do
main.
4th. That previous to tho compact of
1802, the people of (ieorgia were restrained
only by their own laws from exorcising the
full right of domain over all their unappro
priated lands.
5th. That by the compact of 1802, they
relinquished all sovereignty over the lands
therein ceded to tho United States, but re
tained all that they had over the portion of
territory reserved lot themselves.
5th. I hat by that compact Georgia en
gaged tlu: United States to Jo that which she
hud power herself to d.% previously, but that
on the refusal of the United States to fulfil
her engagement, Georgia is only* turned
buck to tho powers she had before *1802, and
consequently—
7tli. T liat .lie lins a right if slio
cliooaoa,by repealing herown law«,by vvhir.h
alunpslie is restrained, to ocrupy,' survey
and appropriate, and scttlo all tho unappro-
printed lands within het reserved limits,trea
ty or no treaty.
-tli. That any attempts of tlm United
statos t* restrain her in the exercise of this
titlit, is tyranny and usurpation, unsupport
ed by any legitimate construction of the
•onstitutiun
But it may be enquired, if the L’nitsd
states persevere to oppose the survevinf
