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Vvy On Vipfifii'ir A.-iIl unihorioste kraal smh i-Cowufry. *«ur sot
|W«W* w «V* «h« shall iit.l have takeu jeuMout, as well <
. the o.tlh li vciuuifrr required, shall be guilty of a thcr oni'inies,’pin
imany l-ariiwoitt nation*, the w
1 of the siviKi themselves ns-o-
, . , , w , ,, o—j — — i—pirates and robbers, may probably,
hiRli inisJlmeaaar, rad upon conviction thereof,, fa,. feared,•therefore we have given,” &c. Tho
sUjU be pnuiih.-a hjr couuiieirinm to the peuiteu- muniment then confers the powerof Mar.
tnry, at hard tabor, f—" ' ±s**w.. . . . e.
*
,rg, at liarJ tabor, for n term, oof ltd IBs.. four
Tjhq.okiyenth section audiorises the Governor,
“slient] he derm it necsisary foi-tho protection of
the<niuci. or thccuforroniriitcf die taws iu force
within the Cherokee us.ion, to Poise uud orgnu-
v/.n a guard," Stc. > \>
The thiiteeutli scctiou enacts, “that tho said
guard, pr any number of them, shall be, and rliey
are hereby, nilriicrizod and empowered to arrest
ntrv Mrtu legally eluded with or delected iu a
viJlulitrt of the hw* o flail state, and to convey,
os too a :t* practicable, till) person so arrowed, bc-
ffrtu a justice of the poker, judge of tile superior,
'or ju nice of the inferior l-uurl* of this state, to bo
dealt with according to U\v."
. Tho o\lra territorial powerof every legislature)
liein * Uni'tad in its actiou. to its own citizen* «r!
subjects. the very passage of this act ir att a«ar-
thm of jiirielirtiiai over the Cherokee nation, itud
sif-tkc rights and powers consequent vtt juri»^ c .
tii&v, •' (l
$ho first Step, then. in tlfts seqtiirs t | lf
Vuiu.itiition si tin Istw* •iiiijioio ©ti t , tj ( court hqii
examiuition of tho rightfahiess '„f this claim.
'Amorist, separatee. irow. Europo by n wide
ocrau, »M inhs.Wteo by’ndistiuct people, divided
lute separate iMiiottl, independent of each other
«ad*pf the rtSt of *.no world, having institutions
'•f.’thbu+iwo, ar. i governing themselves liy their
swyt'Ssifi. It is dii&cult to coinprchuud the pro-
IqfttuUMli that the inhabitants of cither quarter of
Hhe jjloho could have rightful original claims of
d'litimiou over the inhabitant! of uacli other, iu
•vpr tho lauds they occupied; or that tha discovery
of cither by tho oilier, should givl tho discoverer
right! iu tha country discovered, which a mail tho
. pro-existing rights of its a'ucieut possessors. .
After lying concede?! fur n scries of ages,
tho enterprise nf Europe, guided by nautical sci
ence, conducted some of her adveuturuus sum in
to this Western world, ’itiey found it iu posses
sion of n people why Ind made small progress hi
agriculture or manufactures, and who to general
employment eras war, hunting and lishiug.
i)i l'ill,-so iidveuinrers, by sailing along the
coast, nudoccasion illy landing on it, acquire for
tho. sHvcrul Government* to whom-they belonged.
or by iv’ioni they avurc commissioned, u rightful
property in the soil, from the Atlantic to tho Pa-
ci.jc: or rightful dominimi over tho uu iterous peo
ple who nt-i-upicd itf Or has nature, or the great
Cimtor ol nil thine*, conferred their rights over
hunters and li.ker.iiiti, or cgriculturist-i and mnu-
aiftcturorsl . *
lint power, War, conquest, give, rights which,
nfler pot'sesriou, oresxfuredeil by the world, mid
wltjcii can n Ivor he controverted by tlmso on
w hom they ilesceit-l- Wo proceed, then, to the
actual sl'tt’o of things, having glmtcrrl nt riit-ir <>r-
igili; Uecuilse holding it ill our recollection might
shed somo light o l existing pretensions.
The groat in iriliaie powers of Kurope discov-
ert-hau I visited ••ifi’erciU parts of titii conlincu:
Ht it .-"fly tile saum time. The object was too
imtn • o for miyoiio of them to grasp the w hole;
mill the claimants wnre loo powerful to submit
to the cxclmivp or uarteisonalilii pretensions of
any single potentate; To Itvoi* bloody coiifliets,
wllielf miglit tcnuiu'ite disastrioiuly to all, it was
n.-rcisary for the tvitioh.i of Kurope to establish
•obi* principle which nil ..hniild a (.-knowledge, and
which should decide their reapactive riglits ns hr-
tween Hw.ni.'t l^e.i. This principle, suggested by
thj actusl state of thing!, win “that discovery
g.iyo title* to the Wovern-nent by whom subject,
or-by who«, authority it was made, against nil
otVr ilur-.in (iovemmont!, which title might
boicotiiiimiii iteil by posscssioa.”*
This priuciplo. uek'iowledged bv all Europe
ans, Uc.ttise it wn* the interest of nil to' nckuow-'
ledge it. gave to.t!- • untlou making the discovery,
iis its itu-vit ildo couscqueucc, the solo right of
nci|tiiriiig the soil, nud making •cttlenicuss oil it.
, It was mi excludvu pricciplp, which shut out thr
right of competition among tlmso who had agreed
to it: not one which could nniitil tho previous
rightshf those who had list agreed to h. It reg
ulated tho right given by discovery among the
Kuropaan discoverers; but could nut. aluet the
riglr.s of those already in possession, either us o-
riginal occnp.mts, or’ns occupants by virtue of a
discovery made before ilia mmribry of man. It
gnvo the exclusive rtglit to purchase, Imt did not
fmiu-l tlt-it right on a douial of the right of the pos
sessor to sell.
The relation between tho Europeans and tho
unlive! was (l.itcrmiued iu onch case by tho par-
ticwlir (Jovermtipnt whicli nsscrlod mid could
mmiitniii this jro-cmjilive privilege in the partic
ular place. Tbs United States succeeded to nil
t!ie-d»ims<nf Cront ltritaiu, both territorial and
political; hut no attempt, so far ns is known, has
been made tu-eulargo tltem. Ho ,far ns they ex
isted merely in theory, orworo in- their uoture on
ly exclusive of thu dithfcf of/olher Kuropoau na
tions, tli-y still retain their original character,
nnd remnm donmut. So fur as they hare been
practically exerted, thoy exist in fact, are under-,
stood by both parties, nro asserted by tho one, nnd
admitted by tho other.
rip,>:i after Great Britain determined onplaut-
ing colonies in America, tha King granted char
ters to companies of his subjects, who associated
for tliejiurposc of enrrying tho views of tha crown
in(b elicet, an I of enrieainx tlicuuclves. The
first sf these charters was made before possession
was taken of any part of tho country. They pur
port generally to convey tho soil, from tilt Atlan
tic to tho South Sea. This soil was occupied by
numerous mid-wariilto nations, ■equally willing
ami able to dcf.-.nd thoir possessions. Tho ex
travagant mid absurd idea, llmt the feeble setlje-
incnts made on tho son coast, or the companies
' under whiehlhoy were madoifteq-uredlegitimate
power by tlicin to govern tho people, or occupy
the lands from sen to sea, did noV enter the mind
of any man. They’wcrc wcll midcrstood to con
vey the title which, Recording to tho common law
of Europenu Sovereigns rciiiecting America, they
might rightfully convey, nud no more. This was
tho exclusive right of purciinsiug such lands as
• the natives were willing to sell. The crown
could not be understood to grant what the crown
did not nfiVct to claim, nor was it lounderslood.
The power of making war is conferred by these
charter* on tho colonies, but defensivt war alone
seems to bavo been contemplated. In the first
charter to the firit aud second colonies, they are
empowered, “for their several defence! toeucoun-
ter, expnlse, repel and resist, all persons who
shall,' without liednse,” ntttempt to iulgihit"with
in tin said preciuet! and Jimitsoflhe said several
colnnin*. or that shall enterprise, or attempt at a-
uy rime hereafter, the least detriment or minoy-
auce of the said several colouies or plantations.’!
The cliartor to Connecticut concludes agenor-
■ si power to tnakodefeusive war wilh tlieso terms:
-“Auiiupon jutl const* to invade and destroy the
aiatives, or other eaomies of tho said coldly."
Tlic’ama posvey, iatho-canio words,'is confer
red oi tha Government ofRhodo-Islaud.
This power to rcpil invasion, and, upon just
cause, to iuvnde nnd destroy tho natives, author
ise; oflt-arivc ni well as" defensive war, but only
< “on just tsausqr..; Tlio very' tenni"imply.the ex-
t,tncr at»coa-itry td;bo invaded, ami of an on-
coiy who has given just cause orwair.
■'rhe charter to William Penil containsthd fol
lowing rocitjil:, “And because, in so remote a
'Wheaton, 513. • •
These barbarous uaiion*.whose incursions wore
feared, and to repel whose incursions the power
to make wpr was given, wire surely not consid
ered as the subjects of i’eun, or occupying hks
lauds during his pleasure.
The saute clause is introduced into tho charter
to Ixsrd Baltimore.
The charier of Georgia profesics t o he granted
for the suitable purpose of eosoi* ,,, p 0or subject,
W gniu a comfortable subs:*!' lltu |,y cultivating
lauds iu tho Aiuerivan p' jt i,u-ts, "at present
waste mid desolate." D ,«cito»: "Aud whercM
our provtuecs lu .Nor*. n America have been fre
queutly>xa>aged j u jj atl enemies, moro espe-
emliyluat of Ouroliou, which, iu tho late
war. by th* . K .ighboring savages, rvns laid waste
•r I i®-* r “ and great numbers of tho Eug-
{**" ’'.iifihitauts miserably massacred; aud our
* l '".iugsubjects who now mliabit there, by rensou
of the smalluess of their numbcri, will, in case of
any new war, be oxposod to the like calamities,
inasmuch as thoir whole Southern frontier con
tinued! unsettled, and lieth open to the said nova
fees.”
Those motive* for planting the new colony arc
incompatible with .be lofty ideas of granting the
soil, aud all it* iuhabitaut!, from sea to sen. They
demonstrate the truth, that these grants assorted
a title against Europeans only, and were consi
dered as blank paper, so far as the rights of the
natives were concerned. The power of war is
given only for defi-uoe, net for conquest.
The charters contain passages, showing one pf
their objects to be the'civilizatiou of the Indians,
aud th.ir conversion to Christianity—objects to
he accomplished bv conciliating conduct, anil
good example; uotly extermin:u : an.
The actual state of things, on so much of the
Vmork-au continent as litis between the Mississip
pi aud the Atlantic, explain their claims aud the
charters they granted. Their pretensions tin a.
voidable interfered, with each other; though th
discovery of one was admitted by all to exclude
the claim of the other, the extent of that discove
ry was the subject of unceasing contest. Bloody
conflict* arose between them, which gave import
ance and security to the neighboring natiovs.
I-’ieree aud warlike in their character, they might
he formidable enemies, or efectivi) friends- in
stead of rousing their resentments, by assert ny:
claim.! to their lauds, or to doiuiuiou over liieu-
per..ons, their alliance was sought by llattcriug
professions, and purchased by rich presents. The
English, tho French and the Hpauinrils, were e-
qualiy ruin petit or* for their friendship nut! thsir
aid. Not well acquainted with tits exact mean
ing of words, nor supposing it to He material whe
ther they were callmj the suiyects. or the ehildi'cn
of their father iu, Europe; la vish iti professions .of
duty and a.'lcction, iu return for tho rich presents
thoy r.wcive.l; so long as their nrUial independ
ence was untouched, and thoir right U> self-govern
ment acknowledged, they wore willing to place
dependence on tho power which furmshed sup
plies of whicli they were i.i absolute need, and re
strained dangerous intruders from enter their
country: aud this was probably tho sense iu which
the term was understood by them.
Certain it is, that our history furnishes no ex
ample, from the first settlement of our country,
of any attempt, uu the part ef the crow'u, to inter
fere with tha haemal affairs of tho Indians, fur
ther -than to keep out the agents of foreign pow
ers, *whn, ns traders or otherwise, might seduce
them into foreign alliance. The King purchased
their lands when tit -y were willing to sell, at a
price they were willing to take; hut never coerced
a sr.'render of thorn, lie also purchased their
alliance and tlc;- ndcnco by subsidies; but never
intruded into the.iiilcrior of their affairs, or inter
fered with their self-goveruiitent, so far as re
spected themselves only. -
The general views of Great Britain, with re
gard-to-the Indians, were detailed by Mr. Stuart,
superintendent of Indian affairs, -in a speech de
livered at Mobil?, in tllo presence of several per
sons of distinction, soon nftcr tho peace of 170-1.
Tuuards the conclusion he says, "lastly, 1 inform
you that it is the Kiug's order -to all .Governors
uud subjects, to treat tho Indians with justice and
humanity, and to forbear all encroachments on
tho territories allotted them: accordingly all in
dividuals aro prohibited from purchasing any of
yourlnu.ls; but, as you know, that your whito
brethren cannot feed you whou you visit thorn,
unlojs you give them grouuds to plaut, it is ex-
pectod that you will redo lauds to tho King for
that f jrposc. But, wh»;tcver you shall be pleas
ed to surrender ntiy of your tcrritottvS to Ilia ma
jesty, it mast be done, for tha future, at a public
meeting of youniutkm, when thegovcruoig of die
provinces, or ‘j -• piperintciulcnt sbuU bo present,
and ohtain tho consent of all yetrr people. The
boundaries of your hunting grounds will bo accu
rately fixed, nuil' no settlement n;rmitted to be
rakde Upon them- As yon may be assured that
all tronties with you will be faithfully kept, so jt
j/expected that you, also, will bo careful strictly
to observe them."
Tho proclamation issued by tho King of Great
Britain, in 17(111. soon after tho ratification of tho
articles of peace, forbids tbs governors of any of
tho colonies to grant wnrtmtts of survey, or pass
patent* upon nny lands whatever, which not ha
ving liccu cc Jed to, or purchased by us, (the King)
as aforesaid, aro reserved to the said Indians, or
any of them. •
Tho proclamation proceed* “and wo do fur
ther declare it to ho our royal will aud plcasuro,-
fur th» present, ns aforesaid, to reserve, under
our sovereignty, protection nnd tlominiou, for
tho use of the said Indians, all tho lauds anil ter
ritories" “lying to the westward of tho sources
of the rivers whirl; fall into the sea, from th*
west nnd northwest as aforesaid: . aud we' do
hereby strictly forbid, on pain of our displeasure,
nil our loving subjects from making .'any purchas
es or settlements whatever, or taking possession
of any of th* lands above reserved, without our
special loave or licence lor that purpose first ob
tained."
“And we do further strictly enjoin and require
all persons whatever, who nave, either wilfully
or inadvertently, seated themselves upon any
lauds within tho countries above described, or up
on imy other lands which, not having been ceded
to, or purchased liy us, nro still reserved to the
said Indians, os nfnrexaid, forthwith to remove
themselves from* such settlements."
• A proclamation issued by Oov. Gage, in 1772,
contains tho following passage: "Whereas many
persons, contrary to tho posit! vo orders of the King,
upon this suhjeet, have undortakcu to make settle
ments beyond the boundaries fixed by the treaties
made with tho Indian nations, which boundaries
ought to servo as n barrier bet ween tho whites and
the said nations;" particularly bn the Ouahache,
the proclamation orders such persons to quit these
countries without delay.
Such was tho’policy of Great Britain towards
tho Indian nations inhabiting the territory from
which she excluded nil other Europeans; such
her claims, nnd such her practical exposition of
tho charters she had granted; she considers (hem
ns uatiori* capable of maintaining the relations of
peaeje and war; of governing themselves, under
tier protection; and she made treaties with them,
the obligation of which sho acknow ledged.
Tbi* was the-settled state of things when the.
wnr of oar Revolution commenced. Tho influ
ence of oor enemy was established; her resources
enabled her to keep that inflacuce; and the colo
nists had much causa fur the apprehension that
the Indian nations would; as llio allies of-Great
Urithiu, add their arms to her'*. This, as was
to be expected, became an object of great tolici
tuih to Congress. Far from advancing a claim
■to their lands, or asserting any right of dominion
•Overthem, Congress resolvetf “that the securing
aud preserving ibu friendship of the Indian na-
t'Wns,.appear! to be a subject of the utmost mo-
mfiat t;> those colonies."
Th? carlyjottrn vl* of Cong: **s exhibit the most
mixioti! desire to conciliate tlw Indian nations^
Throe Indian department* wort* x^tablMird; an if
commissioners appointed in each, •**(# treat with
tho Indians in their respective ilepai. uieilts, ill
the name and on behalf of tha uuitod cole 'do*, In
order to preserve peace aud friendship with tin-
said Isrii, ns, and io prevent their taking any t
iu the present commotions."
Tho most strenuous exertions were made to
procure those supplies oil which Indian friendship
was supposed to depend, and every thing which
might excite hostility was nvoid-d.
Tho first treaty was made with the Delawares,;
ill September. 1733.
Tha language of equality in which it is drawn
evinces the temper with which tho negotiation
was under: and tbs opinion which then pro
vailed in the file*.
••Is-t. That all offences or acts of hostility, by
cue or cither of the contracting parties against
the other, he mutually forgiven, and lnt.* i ed m the
depth of oblivion, never more to be had in re-
memtir.iu-e,
"2d. That a perpetual peace and friendship
shall, from li'itcefortit take place, cud subsist be
tween the contracting parlies aforesaid, through
all succeeding generations: aud if either of the
purlins are engaged ill a just nnd necessary wui,
with any other nation or untiotis, that then each
sh ill assist the other,in dqp proportion to their a-
bilities, till their, enemies are brought to reasoua-
able tennsof accommodation, Ac-
•> !. The third article stipulates, among other
things, n free passage for the American troops
througlrthe Delaware natisn, mud engages that
they shall bo furnished with provisions aud other
necessaries nt their value.
"■It h. For the better security of the peace and
friendship now entered mto by the contracting
parties against all infractions of tho same by tile
citizens of either party, to the prejudice of tho o-
tlier, neither party shall proceed to the infliction
of punishment* on the ciuzeusof the other, other
wise than by securing the offender or offenders,
by imprisonment, or unv oilier competent means,
till a fair and impartial trial can be had by judge*
or juries of both parties, as near ns can he to the
laws, customs, aud tt-sages of tho contracting
parties, and natural justice,” Jke.
' 5th. Tho Gfth article regulates tho trade be-,
tween tho contracting parties, in a manner en
tirely equal.
6th. The sixth article is entitled to peculiar
attention, as it* coutniiv* a disclaimer of designs
which were, at that time, ascribed to the United
.States, by their enemies, and from the imputation
ef which Congress was then peculiarly anxious
to free the Government. It is iu these words:
"Whereas th® enemies of tho United States have
endeavored by every artifleo in their power, to
possess tho Indiaus in general with an opinion
that it is th? design -of the States aforesaid to ex
tirpate (he Indians, and take possession of their
country: To obviate such false suggestion the U-
nited States do engage to guaranty to the afore
said nation of Delawares, and their heirs, all their
territorial rights in the fullest and most ample
mitun?t% os it hath been bounded by former trea
ties, as long as the said Deiawaro natii.n shall a-
bide by, and hold fast, tha chaiu of friendship
now entered iuto."
Tho parties further agree, that othor tribes,
friendly to the interest of the United States, may
bo invited to form a State, whereof the Delaware
nation shall-tro the head, and have a representa
tion in Congress.
• This treaty, in its language, and hi its provi
sions, is formed.as near ns maybe, on the model
of treaties between tho crowned heads of Europe.
Tho sixths article shows bow Congress then
treated the injurious calumny of cherishing de
signs uw'ricnrily to the political and civil rights of
the Indians. ,
During tho war of the Revolution, tho Chero-
kccs took part w ith the British. After its termi
nation, tho Uuitert States, though desirous of
poaro, did not foci its necessity so strongly as
while tho war continued,. Their political situa
tion being changed, they might very well think it
advisable to assume n higher touo, uud to impress
un tho Cherokee* the sumo respect for Congress
wliitb was before felt for tho King of Groat Bri
tain. This may account for die language of tho
treaty of Hopewell, There is tho more reason
for supposing that the Chcrokeo chiefs weronot
very critical judges of tholaueuage, frcm the fact
that every one makes his mark; no chief was cit
pnlilo of signing his name. It is probable the
treaty was interpreted to them.
Tito treaty is introduced with tho declaration,
that "Tho commissioners plenipotentiary of tho
United States give peace to tho Chorokeet, and
receivo them into the favor stud protection of the
(Juitcd’Statcs of America, on the following condi
tions.*’
When the Uuited States gave ptcfe, dill they
uot also receive it? Were not lioth parties desir
ous of it? If we consult the history of the day,
N'citbiir tho Brliirii Gvre;timenl nor J>o Chew
kees, ever understood it otherwise. •
The same stipulation entered into with tholnt-
ted States, is undoubtedly to bo cousUr.ed iu the
same manuer. They receive the Chwokeo na
tion iuto their favor flud protection. I ho Chero
kee* acknowledge themselves to he t il ler the pro
tection ol the * ailed Stales; nnd of no*, titer pow
er. Protection line* uot imply the dttflrucUou of
the protected. The maimer iu which this stipula
tion was understood by the American (vovermiient,
is explained by the language aud act* of our first
President.
The ftiu.rii article draws the bourn: try between
the iudiaiis and rhc.citizeiis ol the tinted States.
But, in describing this boundary, the Iterm "allot
ted," end the term "hunting ground t are used.
Js it reasonable to suppose,' th it plio Indians,
tvho could not write, and most prol.a-By could not
read, who certainly were uu; csiticidj'jige* of our
.,agu.,go. should distinguish the woi I "allotted"
iro.n rile w ords "marked out?" The actual sub
ject of cwitu’dct tves the dividing liJo between
the two nations; uud their attention r?«y lie very
well supposed to have been confined ;t* that sub
ject. When, m fact, they were cedi ®'g lauds to
•lli3 United States; and describing the extent of
their cession, it may v^ry well ho supposed th i
they might not uudentattd the term em,Payed, as
indicating that instead of grunting they were re
ceiving lailds. If tho term would admi( of no o-
thcr signification, which is not couccd.s', its be
ing understood is so apparent, results to tieces-
s-rilv from the whole transaction, tho*. it must,
WP ilrntk, be ta':*oin’tho seu»o iu which it was
most obviously Hied. , , .
So with re-pcet to tlio words “minting grounds.”
Hunting was at that lime the principal occupa
tion of the Indians, ntfti lltcir land was i f ic set!
for that put pose than for nny other. It > t *d«l nut,
however, be supposed, that any intention existed
of restricting tlm full use of the lauds they re
served.
To the United States, it could bo ti matter of
no concern, whether their whole territory t.-as de
voted to huutiug grounds, or whether: u o< t asiou-
al village, an occasional corn field, iutoirnpted,
aud gave some variety to the scene.
These terms had been used in tlio trenticn with
Great Britain, and had never been tniit uder-
stood. They had never been supposed to imply
a right iu the British Government to ink" their
lauds, or to iuterfero with their internal govern
ment.
The fifth article withdraws the protection of
the Unitod States from any citizen who has set
tled or shall settle on the lands allotted to tlm In
dians, for their hunting grounds, aud stipulates
that if ho shall not remove within six mouths,
Jth» Indians may punish him.
The sixth and seventh articles stipulate for the
puuishmcnt of the citizous of cither couutry, who
may commit offences on or against the citizens of
the other. The only inference to be drawn from
them is, that the'United States considered the
Cherokee* as a nation.
.The ninth article is in these words: "For the
benefit .and comfort of the. Indians, and for the
prevention of injuries and oppressions on the part
of the citizens or Indians, the Uuited States, in
Congress assembled, shall have the sole and ex
clusive- right of regulating the trade with the In
dians, and mauagiug all their affairs, as thoy think
proper.” *
’tyi construe tho expression “managing all their
affairs,” into a surrender of self-government,
would be, tve think, a perversion of their neces
sary meaning, aud a departure from the construc
tion, .which has been uniformly put on them.—
Tho great subject of the nrticlo is the Indian
trado.^ The influence it gave, made it desirable
that Coegress should possess it. The Couitnis-
rictners brought forward the claim, with the pro
fession that their motive was “the benefit and
comfort of tho Indians, and the prevention of in
juries n*jd oppressions." This may bo true, as
respects the regulation of their trade, but cannot
ho truo as respects tho manngcincut of all-their
affairs. The most important of tbeso is the ces
sion of their lands, and security against intruders
on them. Is it credible that they could have con
sidered themselves as surrendoripg to tlio Uuited
States the right to dictnte their future eessious,
and tho terms ou which they should bo made? or
to compel their submission to tho violcnco of dis;
orderly or licontious intruders? ' It is equally in
conceivable that they-could have supposed them
selves, by a phrase thus slipped into an artic>, on
another and most interesting subject, to have di
vested themselves of the right of soif-governmeut
on subjects not connected with trade. Such a
measuro could not be “for the benefit and com
fort,” or for “the prevention of injuries and op
pressions.” Such a construction would tie ittcon-
Mstcnl with thb spirit of ibis nnd all subsequent
treaties; especially of those articles which recog
nize the right of tho Cherokee* to declare hostili
ties, and to make wnr. It would convert a trea
ty of poace covertly into an act, annihilating tho
political oxistcuco of one of the parties. Had such
a result boon intended, it would havo been opculv
avowed. . .
This treaty contains n few terms capable of
being used in a sense which could not havo bten
intended at tho time, and which is consistent witjfi
]he pra;ltcnl construction which Has always bceii
put upon them; but its essential articles treat life
Chcrokces as a nation capable of inuiutnining
Ibe relations of peaco and war; nnd ascertain tiie
does ft not inform us that tho United States were boundaries between them and tho Uuited States,
at least as anxious to obtain it as the Cbcrokees?
We may ask, further: Did the Cherokee* come
to the sent of llio American Government to solicit
peaco; or, did the Americau commissioners go to
them to obtain ill ‘Tho treaty was made at Hope-
well. iiotat New York, The word “give” then,
has no real importance attached to it.
Tha first ami second articles stipulate for the
mutual restoration of prisoners, and of course e-
qualt-. ", ,<!■
• The third article acknowledges the Cherokee*
to ho under the protection of (he United States of
America and of no other power.
- This stipulation is fouud in the Indian treaties
with Great. Britain; nnd may probnhly be found
with those iu other European Powers. Its origin
may bo traced to tho nature of their connexion
with those Powers; and its true moaniug is dis
cerned in their relative situation.
Tho gejteral law of European sovereigns, re
specting their claims in America, limited the in
tercourse of Indians, in p. great degree, to the par
ticular p dentate whose ultimate nght of dominion
was acknowledged by the othors. This was the
general state of thiugs in time of peace.—It was
sometime! changed in wnr. Tho consequence
was, that their supplies were derived chiefly from
that nation, and their trade confined to it. Goods,
indispensabib to thoir comfort, in the shape of
presents, were received from the tamo ham).
What was of still more importance, the strong
hand of Government was interposed to restrain
tlm licentious and disorderly from intruding into
their country, from cncroacnmeuts on their lands,
and from thoso acts of violouco which aro often
attended by reciprocal murder. The Indianspcr--
ccived in this protection only what was bcccucial
trf themselves—an engagement to punish aggress-
ors on them. It involved practically no claim to
their lands, no dominion over their persons. It
merely hound tlio uaiion to the British crown, as
n dependant ally, claiming tho protection of a
powerful friend and neighbor, and receiving the
advantages of that protection, without iuvolviug
a surrender of their national character. b
This is tho tn-? meaning of the stipulation; and
is undoubtedly the sense in which it' was made
The treaty of Ilupewell scems 4 not to havu es-
tablishcd'a solid pence. To accommodate .the
differences still existiug between the State of
Georgia aud tho Cherokee uatiou, the treaty of
Ilulstein was negotiated, iu July, 1791/ Tin ex
isting Constitution of the United Stntes-hud Iteeu
then adopted; and the Government, having more
iutrinsio capacity to cuforco its just clniins, was
perhaps less mindful of high souudiug expresshu*
denoting superiority. Wo huar no mbro of j iv
ing poaeo to the‘Chcrokces.-* The mutual desire'
of establishing permanent peace and friendsTp,
aud of removing ail causes of war, is houestly a-,
vowed, nud, in pursuance of this desire, tho lirst
article declares, that there shall bo perpetual
poace and friendship between all the citizens of
the United States of America, and all the iuditi-.
duals composing tho ‘Chcrokeo nation.
The second orticlo repeats tho important ac
knowledgment, that the Cherokee uution is un
der tho protection of the United States of Ameri
ca, and uo other sovereign whatsoever.
Tho meaning .of this has lieeu' already explain
ed. The Indian nntipus were, from (heir situa
tion, necessarily dependent on some forcigu p*-
teutato for tho supply of their cssciitial wauts, nud
fur their protection from lawless and injurious in
trusions iuto their country. That Bower was ua-
turally termed thoir protector. They had been
arranged under the protection of Great Britain,
but the extinguishmeut of tlio British power in
their neighborhood, and tlio establishment of that
of the Uuited States in its place, led naturally to
the declaration on tlio part of tlio Cborpkccs, that
thoy wero under the protection of tho United
States, and of no other power. They had as
sumed the relation with tho United States which
had before subsisted with Great Uritaiu.
This relation was that of a uatiou claiming and
receiving tlio protection of one moro powerful;
uot that of individuals abandoning their natioual
character, nud submitting as subjects to the laws
of n master.
The thiid article contains a perfectly equal sti
pulation for tho.surrender of prisonen.
Tho fourth article declares, that "rite bounda
ry between tho Uuitei| Slttxs and the Chcrokt*
grounds.” A boundary is describe,? i “ lc
lion mul uatiou, by u , utual
ttonal character of each, the al w Cnf ’
establish the boundary, is nckao!!? , of ««t
other. To preelude foreveVS^wl
greed that it shall be plainly inarluE?'*'"
stoners, to he appointed by **"
order to extinguish forever ail claim .ft’ **
kees to the ceded lands, ou addition!! ,heC|
lion is to lio paid by the United 8ui f t * D ® 1
additional consideration t|. c Fo.-
nll right to the ceded land, forever '" *
By the filth orticlo, the ClierokL
Foiled States, a rqnd through tl#ir.! alo »
tlio imiigyiec of the Tennessee ri\ C r “°*il
‘-'l <*c.tsiouA ’*• an t ' L
imiiL of the rifclu oi’ibc (ifaerokltJ
withhold them.
liy the sixth article it is egrecj
the Cherokee*, that the United 6t’«t!! tt t P 1
the sol® *ttd exclusive right of
trade. No claim is Hindu to the
of all their affairs." The «tiptiUg o .. R ! 0lr ‘
been explained. The observation umj' 1
ed, that the stipulation is itself au Vi
their light to make or refuse it. Uttl
By the seventh article, the. United a,
eim.ly guaranty to the Chcrokeo na „ !f
land* not hereby ceded. *“ WI *J
Tlio eighth article relinquishes to tl„
..ccs auy citizens or the Uuited State, !i
sctilo ou their lauds, and the ninth foHda
tizen of the United States to hunt ou
or to enter their country without a m, „ I
Tho remaining articles ere eqnal n.,1
stipulations which would be made’ on),
nation admitted to be capable of govenft!
self. ® n *j|
This treaty, thus explicitly recogni.ias
nunol character or th • Cherokee,, and tlt‘
of self governincnt; thus guarautviur
assuming tho duty of iirotcctioti, and of
pledging tho faith of the Uuited State, y
protection; has bccu frequently rentned ,
ncMf in full force. ’ 11
To the general pledge of protection hare
added several speeilie pledget, deemed *4
by tho Indians. Home of these rcstruin fo
zens of tho Unitod State* from cneroaelmiVpt
the Cherokee country uud provide fortle
incut of intruder*.
From the commencement of our Govern,,
Congress passed nets to. regulate the trade
intercourse with the lucjisns which treat the,
nations, respect their rights, aud manirntt
purpose to afford that protection which
stipulate. All these acts, and especially
13112, which is still in force, mstufcMly (I
tlio several Indian nations as distinct political”,
mituilics, having territorial boundaries vi
which their authority is exclusive, and M
right to nil the land within these boamiaric!,»l
is uot only acknowledged, but,guarantied'
United States.
In 1319, Congress passed an act for
those humane dcfigiis of civilizing the
ing Indians which had long been cherished
Executive.—It enacts, “that, for the pm
providing against tlar furtherderiiae audL..
tin e lion of tlio Indian tribes adjoining to the
tier settlements of the United States, and for":
dwing among them the habits and arts sf,
nation, the Prcsidcut of the Uuited Suin
lie, aud ho is hereby authorized, in ertn
where ko shall judge improvement ia the i
and condition of such Imlans practicable, asd
tlio means of instruction can be iotrodacd,
their men consent, to employ capable pews
good moral character, to instruct them is
modo of agriculture suited to their lilmiion:
for teaching their children in reading, irritin;
arithmetic; and for performing such other'
as may bo enjoined, according to such iu.l
and rftlcs as tho President may give and
for tho regulation oftheir conduct ia the
oftheir duties.”
This act avntvedly contemplates tbepri
thru of the Indian nations as an object songl
the United Htates, nnd proposes to cEett thi
ject liy civilizing nnd converting them fnn
ter* into agriculturists. Though the Chirr
had already made considerable progress in
improvement, it cannot be doubled that the:
ral words of tho act comprehended then,
advance in the "habits mid arts of civff
rather encouraged pcricvcranco in the
exertions still farther to melioriz? their c
This act furnishes strong additional evidtnu
settled purposo to fix’tlte Indians in theirH
by giving them security at home.
Tho tronties nnd laws of tlio United Saw
template tho Indian territory as completely
rated from that of the Stntes; aud prod**
HI intercourse with them Shull hocartWei]
duslvcly by tho Govcrumetit of tho Wee.,
Io this tho rightful cxcrclso of potT«i«
usurpation? - , ■
While Iheso stntes wero colonies, this..
in it* utmost extent, was admitted to resile it
crown. ’When our revolutionary itnijsk |
menced, Congress was composed of »a “
lilago of deputies, acting under specific r ; .
granted by (lie Legislatures, or conventional
several colonics. . It was a groat pfp a * w '1
meat, not perfectly organized, nor nereifie
sp jetive powers of those who were enlrtatalj
tho management of nffaiis accurately o' 1
Tho necessities of our situation produced*!
ral conviction, that those measures wW
corned all, mutt ho transacted by a body w *
tlio representatives of all were assemaiM,
which could commnud the confidence ot
Congress, therefore, was considered as'"
wilh all tho powers of wnr .nud peace. »i
gross dissolved our- connexion with the
couutry, ami declared theso Uuited Col
ho independent States. Without any vnw
finition of powers, they employed "T 1 ® 1 * J
gent, to represent tho United States *tiM*.
courts ef Europe; offered to uegocian
with them, and did actually uegociate trciun
France. From the sntno necessity, sw*
same principles, Congress assumed toe .
incut of Indian affairs; first in the name
Uuited Colonies, nnd afterwards in th' ■
tho United State*. Early attempts af
a; negotiation, nnd to regulato trade* A
Thoso not proving successful, warwasc ,y
dcr.tho direction aud with tho forces oft
States, und the efi’oru to make peace QJ
wero earnest and incessant.. Tho Con
found Congress iu the exerciso of the- ^
ors of peace ami wflr, in our relations
nations, ns with thoso of Europe. b , K v
state of tilings wIibii tho Confederatio n
cd. That instrument surrendered tM P» 4
peace and war to Congress, and pr ul
to tho States, respectively,' uu,eis .* |, frU i
lunlly invaded, "or shall have ***«['*“ e "
vico of a resolution being formed by
of Indians to invade suen State, »“<
is so imminent ns not to admit of de I
‘States in Congress assembled can be r
T(us instrumunt nlso gave the
Congress assembled, the sole nud . .
of “regulating tlio trad# and ?jL fix
of the Indians, not member* of any ,*
Provide,l, That the legislative ppw«r' , J
within it* own limits be not min t
Tho ambiguousP^rV^.^'.^JutTro*,
of power to thp Uujtod flute - ,
by th# Stntes of North Carotin diiC<li;:f ,i, <
to nnuul tho power 00 e»*Ui«A
roufitsioit rcsnlung from t" - e