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VOL 4.]
ooaia&fis&xoxvAx*
IN SENATE—APRIL r 1830.
SPEECH OF
’ MR. FORSYTH,
OF GEORGIA.
On the biU providing; for an exchange of lancis
with the Hrfians, and for their removal west of
♦he Misj* *tl. the amendment proposed by
Mr. Freliogtmyien being under consideration.
Concluded.
I feel the indulgence of the Senate in the ad*
of yesterday to enable me to finish my
rcni..rks—remarks that ought to have beeii, and
would have been, then terminated, biit for theuri
expectsd delay produced by the transaction of
Executive business. Apology, for any time I
could occupy, would be misplaced, ft cannot be
expected from me. The State of Georgia has
been made so prominent, so wantonly prominent
in this discussion, that any thing and every thing
that can be said by her Representatives in this
budy would bo excused and justified. Peculiarly
appropriate to our condition in the language of
Cassius, who was
•‘Hated by those he loved;
Braved by his brother; checked like a bond
man ;
All bis faults observed; et in a note book.
Learned and conned by rote, to cast into hit
teeth.”
ts Socrates was right when he said that it is
good to have calumniators, since, if they say the
truth, we n)ay correct our salts, if not, it does no
harm, we ought to be very thankful to those,
who, by putting ns under a course of moral in
etruction, are striving to make ns perfect, intbis
Hall, in the Representative Chamber, in every
corner of the country, where a partisan news
paper is to be found, we are discussed without
measure and abused without mercy. This is not
all; we are important enough to attract attention
in transatlantic assemblies. The Chapel of St.
Stephens has lately esouude<i with the name of
“"Oeorgia. On the discussion of the question of
universal suffrage, we have been quoted and con
demned by a Minister o! luipeiiut Itvtaun —tk
Minister of a Government whose diplomatic rec
ords ni e disgraced by compacts to monopolize the
horrible profits of the slave trade* the records of
Whose legislation arc staincu tty acts to legitimate
end regulate that hateful traffic; the Minister of it
Government which lias but just emancipated a
large portion of its subjects, distinguished for
wealth, intelligence, and integrity, from odious,
political, and civil disabilities, founded solely on
Che color of their religious creed; the Minister of
a Government, a company of whose merchants
owns an empire of slaves; an empire gained by a
succession of crimes, black enough to make the
Sun turn pale, were its blessed beams affected by
human turpitude; the Minister of a Government,
in whose colonial dependencies a black man is de
livered over to the discretion of his master, and
torture and death inflicted upon him is estimated
fn pounds and shillings, has had the effrontery, in
ftie face of the British nation, and of the world, to
upbraid Georgia for enactments to prevent the
dangers of servile insurrection—adangcr to which
wc arc aipated by th? peculiar character of a
part of our population, n population fixed upon us
t>v the avarice of Britain’s self.
‘The reproach was worthy of its author. A
Minister of the House of Brunswick with the prin
ciples of a Jacobite; the virulent opponent of
Catholic emancipation, while opposition was Con
gistect with the retention of his place in the Minis
try; the eloquent advocate of Catholic emancipa
tion when place was in danger, was true to him
self a.id to his vocation, while censuring one of the
States of this Republic. We may live, Sir, to see
this opponent of ooivers'al suffrage its advocate.
|f the great Captain should again give the word
of command, ‘ to the right about, face/’ we may
hear of a splended argument, founded upon the
safely and tranquility of the empire; we may see
recorded, oniniona abandoned for place, in favor
of universal* uffrage. Should this second miracle
be worked by the conqueror of Waterloo, I trust
we shall be spared the praise of the convert.—
llis censure we shall bear without resentment.
His praise would be intoleiable. But, Sir, what
does the wretch deserve, who, copying into the
Columwß of bis in tUie country the dis
cussions of Parliament, adds to this speech of the
Home Secretary, part only of the reply of the
great leader of the opposition, to induce a belief
that the opposing champions united to pour out
the vials of their wrath upon our heads in one un
divided stream; when, in fact, the great advacote,
(Brougham) although condemning th** spirit of
our law, pointed, in marked terms, to the necessi
ty of our condition, and taunted his adversary
with the inconsistency of his condemnation of the
Georgia laws, while the atrocious code of Jamai
ca was suffered to remain in force? The truth,
the whole truth suits not the purposes of editorial
malignity. They understand how to suggest
fidsehooS, by the suppression of truth, when the
object is to deceive, by making a false impression
upon the public miud. If we should feel a strong
Indignation at these, and similar efforts here, to
prejudice the public mind—to degrade the char
acter of our State; if, under the influence of this
indignation, we should pour out our souls in tor
rents of bitter invective against our artful oppo
nents, wc might hope to stand excused befoie the
throne of the giver ot life. Erring man, the child,
nd, but too often, the victim of passion, cuuld
Clot cC n<leinn ua *
But Sb’ 1 must notbe withdrawn from my pur
pose by the dishonorable artifices of editors of
American newspapers, by the arts of Senatorial
ingenuity, or by the uncalled for and grossly in
consistent censures of a British minister. 1 tree
cd yesterday, the history of the execution of the
compact of 1802 to the period when ‘be Creek
tribe was removed from our territory, flic Chc
,olteJ having becu foiled in their efforts to con
trol the Cieok movements, sought to strengthen
themselves in their position, hy forming and pab
lUbi* a Constitution. A few white men and hah
breeds were the authors of this sci.eme-n scheme,
hateful to many of the Indians, who desired to
counteract it The half breeds and whiles, hav
ing the funds of the tribe, were able to retain the
power in their hands, and they proceeded to con
vert citizens of the United States into Cherokee.,,
bv the short and simple process of “* Tr, *B* ® r
adoption This decisive cvmcnce of the Intenti
on of the Cherokres, to perpetuate themselves as
Sovereigns within the sovereignly of Georgia, at
tracted the immediate attention of the r-.'-ecutivc
ofthc State. Transmitting a copy of the Cnero
fcee Constitution to the President of the U States
an' 1 calling to his recollection the provision in the
Constitution which forbade the erection ol any
new State within the jurisdiction of any oilier
State, and the formation ofa,.y Slatebv the junc
tion oftwo or more States, or parts of Stabs, with
- out of the legislatures of the States
SWK*roe4, ft* U > 9i tUf Congress, tmjuuy
WASHINGTON, (GA,) TUESDAY, JUNE 22, 1830.
was made what measure bad beeu Adopted, or
was contemplated, to vindicate the outraged so
vereignty of tbt States of North Carolina, Ten
nessee, Georgia, and Alabantc. Tliu inquiry was
not deemed worthy of an answer. The respect
due to the State rot being strong citoueh to tempt
the Executive of the Union to dire& uis mind to
this siihprct, An inquiry was made in the House of
Representatives by Mr Wilde, of Getrgia. The
resolution of inquiry was offered on the 21sl of
February, 1828, modified on the 2‘2d at the sug
gestion of Mr Storrs, of New York* laid on the
table on motion of Mr. Wicklifek, of Kentucky,
taken up on the 29th, modified by Mr. Wilde,
who introduced it, laid on the table ou motion of
Mr. Storrs, taken up and passed on the 3d of
March. The answer to this resolution disclosed
these facts that the Chefdkee Constitution had
been communicated to the War Department in
November, 1828, by the Commissioners, Cockß
and Davidson; by the Goi ernor of Georgia, in
January, 1829, with his letter of inquiry, Uvit, that
the hon. Secretary had not fonnd leisure to give
his attention to this subject, until the ot Fe
bruary, 1829, two days after the call for informa
tion wa.* proposed in Congress. The letter of the
Secretary to the Cherokee Agem, befirsdate on
that day. Had not the resolution of inquiry been
accidentally delayed in its progress through the
House, the Secretary would have haN no time to
devote to the subject until after Congress had
acted upon it. But what was the determination
of Government, as disclosed in this extorted letter
of the Secretary to the Cherokee agebl? The a
gent was directed to inform the Cherokres, that
the formation of the Constitution would produce
no change in thflir relations with the U. States.
The uffgpt of this Delphic answer t-n Georgia and j
the Cbcroktcs, might have been, ami no doubt ,
was anticipated. The Cberokees understood the ;
response of the oracle as favorable to ybeir wishes. 1
The State understood that the Administration had j
resolved not to interfere; to leave lifts Cberokees j
to make the most of their case before the tribunal !
of public opinion; to aid them, if aid should be !
found popular, in no-event,, to act with Georgia, I
unless controlled by circumstances.
Thus, Mr. President, after the lapse of 29 years,
after 1 urge pecuniary sacrifice,Uml ihe more im
portant sacrifice of political consequence, to a*
void irritating and perplexing questions bctwcYa
the State and Federal Government, we found
ourselves compelled to submit to the intrusive so
vereignty of a petty tribe of Indians, <*r to put ii
Dy T\r own aulUoiilv, tviltiout ct aid. Olid
probably against the wishes, of the Federal Ad
ministration. Every hour’s delay would have j
strengthened the claims of the new government, I
and prescription and acquiescence would have
been plead against us with zeal and effect. The
subject of extending tue laws of the State over
fbe Indians, was presented to the Legislature by
tin*. State Executive. To give time to the Fede
ral Government to fulfil its compact, by the ex
tinguishment of the Cherokee claim to the land,
and thus ent up the controversy by the roots, ami !
to apprise the Indians, who were about to become j
the subjects of the State laws, of the intention to i
act ttpon them, it was proposed to make t*v en- j
actment ;*rospcctive. The expediency ot this
measure could i;7? be doubted, a;id (fre calv diffi
culty felt was on the question of poser. We did !
not suppose it possible that any statesman i> this j
country would denv that the Indians within c n 1
limits were under tfi<£ discretionary control of she ‘
Congress of the United States, or of the State Le- j
gisluture, ami hail not the arguments used here i
been founded upon the original right of the Indi- J
ans to the soil and Sovereignty of *<? • :
would not trouble the Senate with any inquiry j
going further back than the Constitution of tin* I
U. States. The Uort. Sennmv from New Jersey !
claims that the Cherokee Indians were, ever have
been, and ever shall be, the owners of the soil,
and independent of the Government of the Stale
and of the Union; aud he denies that the Euro
pean discoverers, particularly the English, ever
claimed or exercised the right to legislate directly
over the Indians, as their dependents or subjects.
Tlie European doctrine of the right conferred by
the discovery of new countries inhabited by bar
barous tribes, was, 1 thought well known. The
discoverer claimed the sovereignly over the dis
covered country, and over every thing tinder,
upon, and above if, from the centre to the zenith.
The lands, the streams, the woods and minerals,
all living things, including the human inhabitants,
were all the property of, or subject to, the govern
ment of the fortunate navigator, who. by accident
or design, first saw the before unknown country.
Such were the doctrines-of Spain. England, and
France Portugal claimed under a Papal bull,
which conferred upon the crown empire and do
main over every country newly discovered on th*c
globe not possessed by Christian people. This
Papas title was in perfect unison with the pre
vailing sentiments of an age, in which the de
crees of the Roman Pontiff made aud dethroned
kings, established and overturned empires. All
Christendom seem* to have imagined that, by of
fering that immortal life, promised by the Prince
of Peace to fallen man, to the aborigines of this
country, the right v.as fairly acquired of dispos
ing of their persons and their property at pleas
ure. A few examples from the history ofthc dis
coveries and settlements, will show the prevalent
opinions of the day. The great Cchuabus, c
quipped by Spain, came authorized by Ferdinand
and Isabella to take all new discovered lands for
the crowns of Castile &. Leon; if successful, as his
reward, plenary powers were given to him over
the country and people discovered; and a large
share ofthc profits to be derived from them pro
mised. This grant was not extraordinary, from ;
sovereigns who considered war with infidels, and ’
theiM'orcible conversion to the true faith, or ex-1
pulsion from their country, as part of their Chris
tain duty. The great discovery woa, made—
Guanaham was found. Our imaginations have
been inflamed by eloquent descriptions of this e
vent. The gazing crowd of enraptured savages,
watching, on their sunny island, those vast bodies
on the ocean, that, with sails spreading to the
breeze, like the white wings of an enormous bird,
came careering to their shores'; the gaudy Eu
ropeans, pressing around their illustrious leader,
splendidly attired, and moving to the sound of
martial music, in all the imposing pomp of civi
lization, to the promised land; the savage islan
ders looking upon the strangers, not as men to
be watched and feared, but as angels or gods to
be welcomed and adored. The first act of the
Castilian admiral was an act of devotion. The
symbol of his faith was erected, and amidst these
w ondering children pf nature, this first prayer to
the true God w as lifted up in the Western world:
“Doinine Deus, JEterne et Omnipotens, sacro
tuo verbo, et cerium et terrain et mare creasti;
benedicatur et glouficetur nomen tuum, laudctur
tua majestas, quae dignata est per humilem servum
tuum *it ejus sacrum nomen agnoscatur et prJfedi
cetur in hac altera mundi parte.”
After blessing and glorifying the name of God
that he had designed to make him the humble in
strument of causing his holy name to be known
and preached in this new world, how did the
great navigaior, distinguished as he was b> his
superior intelligence and humanity, treat the un
taught children of nature? Provisions necessary
foi hi* crew were flftt voluntarily offered by
‘the inhabitants. When no laager voluntarily of
fered, they were procured by arv.fice, by playing
upon their rgnoranfrfears. When artifice did not
succeed, they were takeu by force. Without
their consent, fort! were erected on Ihe territory
occupied hy Indians! and power, xs far as it was
politic, exercised over them. Wien the admiral
returned to hisc ountry, it is assorted that he lost,
for u season, the favor of his illustrious patroness,
Issahella, the heroism of whose character woe e
qunlled by the loveliness of htr person and the
tenderness of heart, by carrying as slaves some
of the inhabitants of the new world to Spain. The
wretched inhabitants of the newly discovered
lands soon found severe teachers of the rcligionof
peace. The name ofthe Saviour of mankind was
belched torth in thunder from the mouths of
dreadful fiery engines that scattered dismay Ind
death through their helpless ranks; it broke ipon
the devoted race in the deep tones of the furious
blood-hounds, baying at their heels a9 they fled
through the fastnesses of the mountains, {hero
they sought, in vain, a refuge from torture end
death. The dreadful ravages committed upon
this helpless people called for the of
the Government of Spain, aad oppression and
crtteltry were reduced to system by the “icparti
rninentos” and “•ncoinicndas,” by Spanish legis
lation.
1 he Indians were divided cnio*g the Europe
ans and recommended for iast#i4tr n fry the dOc
, { rincs of Christianity. Forced to umlatural labor,
starved, and tortured, they died; but died not iu
(lie Christian faith. They rejected, with scorn,
the priestly promise of eternal joy, turned their
c-yes from the holy cross, and expired, express
ing an abhorrence of that place of happiness in
j the world to come, into which Spanirds could be
, permitted to enter. Passing by the Portuguese,
J (he polished French And manly English, what did
; { The Island of St. Christopher’* Was set
j (led iu conduction by the subjects of these great
; rivals. No Spaniard had everfixed himself upon
| The French and English were permitted to
[ gain foothold as friends; were received as guests.
In the dead ol night, when the unsuspecting na
| fives were in a stale of profound repose, the ruf
fians broke iu upon and destroyed all the grown
males, us (lie allies of Spain, that the Island might
be enjoyed in peace by the victors,
But , to bring our examples a litfle nearer home,
ijie JN'Cw England Pilgrims, who came flying
(toin persecution, how piously they returned
thanks to God for the wonderful dispensation of i
hi Vvoyidenen, whirl, had s*r*i*t awr.v whole !
tribes ot Indians by pestilence, in order to furnish, !
without expense ot force, h country for a few ■
persecuted whites from the fast anchored hie.
Abandoning further recital of acts whifh may be
considered unauthorized by governments, let ns
see what ware the doctrines of the English Gov
ern aient to whose power we succeeded, and up
on w hose opinions we act. What do the grants vi
the Kings of England to the various proprietors ‘
contain ) Ample, conclu>ive, exclusive trnns
j fins of sovereign, ty-nud domain, subject only to
| the reserved rights of the Crown, over all the
| territory described iu the grant, and all the per
| sons upon it. The proprietors exercised at dis
■ cretion eminent domain, and when they surren
! deretl their governments, v and Colonial Govern
! incuts were established in their pi ice, the Colo
j ni.il Governments exercised., under the like re
’ striction, the same power. The Indians were
‘ considered incumbrances upon the territory
gpfanieJ io lie propie tor, or su\iJctLd to the Co
io*2bi GovcrnuJ&DU end the mode of treating
them was cltogct.Vr discretionary. Their good
wHi ..- **>* t rifling nr*Rents,^by.pois
onouspotations; wiie’J these iijcjus were iniu/Jiri
ent, ns they usually soon to be, uMputes
arose about trade, a vatual depredations were
committed, and the swin and actpii. ed what could no
longer be obtained for a nominal pt ice. The
whole of Rhode Island vi\s bcH’ght for fjjiy fa
thoms of beads. No pioprjetA- or government
ever dreamed of resting a claim to title upon a
purchase front th€! tiutives. Aj appeal was al
ways made in case of dispute to the patent from
the Grown. Such was the course of William!
Ferin in his controversy with Baltimore. A
few facts ifc relation to. Peiinsylvauia will instruct
the Senator from Ncv Jersey to the true light
iu which the Indians were viewed by Penn, whose
conduct to the Indians is considered as the bcatf
ideal of justice and humanity. Golden’s History
ofthe Five Nations contains a speech of Canassa
(ego. a Chief of ihe Six Nations, to the Governor
of Maryland, in 1741; he complains that the In
dians, deceived by the Governor of New York,
conveyed their land to him in trust, to keep it safe
from the Dutch, and that the Governor sold it af
terwards mEngland to their od Onrig. IVrin
had long desired to free tin* <and from the incum
brance trpon if, but the Indians would not scii.
What did Ouas in the matter of tins flagrant
fraud? No doubt he gave them back the loud,
and held the Governor of New York answerable
for the purchase money. lie kept the land, and
gave the Indians seme trifling presents us peace
offerings for the deception practiced upon them—
and thought he acted justly and generously. A
law of Pennsylvania, of 1771, exhibits, in a still
stronger light, how sacredly regardful the succes
sors of the Founder*: ofthe City of Brother!/ hove
were of Indian titles and Indian rights. Iu com
mon with the other lovers of sobriety, the Legisla
tors of Pennsylvania forbade the sale of ardent
spirits to Indians, in any quantity than one
gallon, under a penalty of 20 pounds, half to the
Government, the residue to the iuformcr. They
did not, like the good people of Connecticut, au
thorize the offending liquid to be taken from the
poor Itidifws, given to the poor whites, but
’ the sale of it was forbidden, “to prevent the Indi
; ans from being debauched by rum, and cheated
jof their peltry.” This praisworthv act contains
this htiinane and wise exception: Vrovidcd always,
That the Governor and Council, or persons by
them authorized and appointed to hold treaties
with any uatioii of Indians, may, at such treaties,
give any reasonable quantity of rum, ns by them
shall be thought necessary,” &c. T<* debauch
the Indians with rum, and cheat them of their
land, was quite a Government affair, and not at
nil criminal; but to use the rum to cheat them of
their peltry, was an abomination i:i Ihe sight of
ihe law. Clear and definite ideas may be firmed
ofthe opinions entertained throughout this Anglo-
American part ofhis Cominynt, by an examina
tion of the powers proposed to be given to (be U
nion of the Colonies contemplated in 17GJ, over
Indians and ludian lands, and the reasons assign
ed for vesting some of them in the Union, it was
proposed to vest ii tile President General, with
the advice qf the Grand Council of the Uniot, pow
er to hold or direct all Indian treaties, i/t which
the general interest of the Colonies might be con
cerned; and make peace or declare war with’ In
dian nations. That they should make such laws
as they judged necessary for regulating all Indi
an trade. That they should make ull purchases
from Indians for the Crown, not then within the
boundaries of particular (,‘eionics, or that should
not be within their hound, lies, when some of them
might be reduced to moic convenient dimensions.
These were the powers proposed at Albany, to be
given to ihe Union, by the unanimous approbation
of the Commissioners froi’ New Hampshire,Mas
sachusetts isiaiiV*/ Ma
ryland, and Pennsylvania. It ig to the reasons
assigned for granting these powers to which I in
vite attention. As to the power of peace and war
with Indian nations, it is alleged in the report of
this plan of the Union, (Carey’s American Muse
um, vo 1. 5, pp. 297 and 8.) that was supposed to
be In every Colony, and was expressly granted to
some by charter, so that no new power was intend
ed to be granted to the Colonies. As to purchases
of Indian kinds, it is said, private purchases are
inconvenient, and lead to wars. Public purcha
ses would prevent wars. “// ts much cheaper to
purchase of them (the Indians) tha?i to take and
maintain the possession by force; for they are ge
nerally very reasonable in their demands for larid;
&. the expense of guarding a large frontier against
their incursions, is vastly great; because all must
be guarded, and always guarded, as we know not
where, and when to expect them.” The discreti
onary power in the Stale to take Indian lands, and
maintain possession by force, is here distirictly as
serted, but purchase is rccommsnded as the cheap
er mode of quietly enjoy ing the lands granted by
the Crown. Peace and war with Indhm nations,
wms made by the Colonics at pleasure. The plan of
the Unio7i not being approved m Great Britain,
was abandoned by Ihe Colonies. To remedy some
Cf the evils arising in the management of Colonial
affairs, the Royal Proclamation of 1763 was issu
ed. It was with unfeigned surprise l beared this
proclamation quoted by the Senator from New
Jersey, as a proof that Great Britain never assert
ed its rights to legislate fmr the savages, or to ap
propriate without previous purchase their lands
1 ask the Senator to examine it. It asserts:
First, the sovereignty and dominion of G. Bri
tain over Indians and ludian territory:
Secondly, that the Indians were, as subjects,
under the protection of the Crown;
Thirdly, that the right to appropriate the land
occupied hy the Indians, resided in the Crown.
It coutains grants to the whites, aud reservations
to the Indians as hunting grounds;
Fourthly, that it was expedient to reserve the
ground V\ est of the sources ofthe rivers named
in it, for the present, to the use of the Indians;
Fifthly, that the land East of the sources of
those rivers, part of which was then Actually oc
cupied byjhe Indians, should be granted at the
discretion ofthc Prop riel ary or oolonial authori
ties.
The laws and usages of the different colonies
throw additional light on this point, ifunv w r ere
required, after the assertions of authority contai
ned in die proclamation of 1763 In war. the In
aifln never Was ircairu ns a ctviutni ciicm;, me
males were put to death on ihe principle of retal
iation, and Ihe women and children sold into sla
very for thfe benefit of Ihe captors. In Massachu
setts, rewards were offered for captives, and pe
; cunittry inducements held out to encourage the
breed of dogs found useful to go out with the hunt
sergeant, in pursuit of Indian robeli. In Virgin
ia. Massachusetts, Connecticut, Mary laud, Penn
sylvania, North Carolina, and 3. Carolina, laws
V.ere passed, yet on their Statute Books, (some
offbqm have just beeu re-published by the House
of Representatives,) to regulate, to protect, and
to punish Indians.
So stood the quest!, nos power over the Indians
” lien the Revolution began. On the declaration
of independence, the States, respectively, took
upon themselves all the authority Great Britain
ever exercised, or claimed to exercise, within
(heir limits. The Indians were at their discrcti
on, and w hether they were managed by direct en
forced legislation, or by voluntary contract, no
other Government Could interfere between the
State and the Indians residing within its territory,
i tu‘ ci;nowrcrfim!ii( of indr petulance utal Ik*
rired, in the surrender ofthe claim ofthe nation,
previously the acknowledged owner ofthe country
and the people. In .that war, Mr. Pp.icsident,
these savages became the allies of Britain, ami
were with her couqucied in the struggle. We
claimed them as our dependents, not only by the
title surrendered by Great Britain, but by that
obtained by victory in frequent and bloody Bat
tles The Senator from New Jersey does not
think we conquered Britain, as we are not enti
tled to claim Canada and the other dependencies
f the British crown. Certainly wc w ere not con
quered by Britain. What wc fought for we main
ed, and it was finally formally Surrendered to us
—all the rights of sovereignty and domain to the
territory formerly held as colonial possessions by
Great Britain, then forming the confederacy of
the United States. We never claimed Canada,
uor any other British dependency.
The rights of sovereignty mid domain covered
tue claim ofiegislatioo ofer (he Indians, and of
title to the laud occupied by them.
The acknowledgement was made to the United
States, aud the treaty of peace formed with the
confederation, is there any thing in the articles
of confederation which deprives the individual
States of any pornon of their sovereignty over In
dians or Indian landsl The confederation, nine
States consenting, could make treaties. Altlio’
frequent contracts were made with Indians, find
wern called treaties, it never was cousidcicd (hat
the power to interfere in any manner with the In
dians in a State, was comprehended within the
treaty-making authority granted to the confeder
acy. The conclusive evidence of this assertion is
1 the resolution ofthe old congress directing trea
ties to be held with Indian tribes whenever a ma
jority of the States ordered them to be held—a
gross and manifest usurpation, if founded on the
fr*iUy power. That it was not so intended is ob
vious, by referring to the special grant of author
ity in these words; ‘the Congress shall have the
sole und exclusive right and power of regulating
the trade and managing all affairs with the Indi
ans, not members of any ofthe States; provided,
that the legislative right of any St itc within its
own limits be not infringed or violated.” It would
be the height of absurdity to suppose that this
clause ever would have been incorporated with the
articles of confederation, if, under the power to
make treaties, were intended to be made with
I udians. It would have been granted nil
power over a subject to the confederacy, and then
granting a special power over the same subject
clogged with limitations and restrictions. * Under
this clause the power of the confederation wa
claimed and eserciccd. The report of the com
mittee of Congress, in 1767, quoted by the Sena
tor from New Jersey, is founded on this clause,
not on that authorising treaties. That report ii
not entitled to respect as an authority, however
it maybe used us argument, as the opinion ofthe
members of the committee, Messrs. Keary, Car
rington, Bingham, Smith and Dane, of Jgeverly,
■ Massachusetts,. It was never adopted nor even
discussed in tin? old Congress. As mutter of opin
ion it sustains State claims to jurisdiction over ali
things and persons upon Indian territory, savt*
only the Indian# —a distinction neither supported
by reason or foui ded on any principal of nation
al law; it admit# the power ofthe jrtuteto make
the Indian tribes members of the State. The
clause in the articles ofeoafederation is sufficient
ly explicit, without looking to the glosses upon it.
The old Congress bad, under (his clause, no nu
thority to regulate trade, oi affair# “with Indians,
members of any State:’* the right of a State, then
exercised or to be exercised, of incorporating the
[ ludians a pari of thek j9litjcaJ system by lc-
[New Series—No. 1.
gjslalion, is distinctly recognised; .ivlien exercis
ed, the power of Ihe confederacy ceased. Over
those Rot incorporated, tile pow er granted’ Was
to be exercised without infringing or v iolaung the
legislative nght of any State within its own tim
its. There was a practical constructicn of thia
clause in Not. 1182. Tile Catawbas, residing
in a. Carolina, applied to Congress for redress
of alleged grievances. A ricomraen.lntion to ,S.
C arolina to take such measures for their satisfac
tion as the legislature of S. Carolina should thick
fit, was the only redress obtained from Congress.
No doubt justice was done by the State, ns t
would hare been, bad the application been made 1 ,
in the first instance, tg the State legislature.
If I am not deceived, Mr. Presidsm, there i#
nntiiing in the articles of confederation that touch,
es the power of a State to legislate for the lit.
dians within ils limits All the acts of State lc.
gislntion, to which I have already alluded, opcr.v
ted while the confederation existed. IVith one
only, of those, will 1 trouble the Senate—the act
of I enusj lvanitt, of 1744, for the speedy trial of
capital offences committed by any Indian or In
dians, in the remote parts f the Province. [ Sir.
F. read the net.] It is not to be denied, Mr. Tr*.
stiiKNT, that the power of controlling She In
dians by legislation, was posscEsed and exercised
by the States subsequent to the Revolution, as i
lmd been by the Colinies prior to the the event.
The Constitution ofthe United States produced
very important changes in the condition of tho
State sovereignties. One tiling is guarded by
special provision—the powers not delegated to
the U. States, nor prohibited to the States, ar
reserved to the Statics respectively, or to the peo
ple. Has the power over Indians within tli
States been dellgatcd by the Constitution? It dis
istinctly appears by the nrticicofthe Constitution,
that Indians, when taxed, arc a part ofthe Smto
population k increase its political rrjii csentatiou;
excluded only when not made subject to the bur
thens of the State. The name of Indian is foun4
no where else in the Constitution but in that u
tide, and in this clause, “Congress shall have
power to regulate commerce with foreign natiw
ons, between the States, and with the India to
tribes To the confederation was given pow er
over nil ludian oftiirs that could be exercised
without encroaching upon State sovereignty*.
To the Federal Government is given the power,
without limitation, to regulate commerce on/y—
----an unlimited power over one object, in placeofa
limited power over nil the objects of our jndiaa
reJftee V : f ; iSii'fesaf 1
(ions of tlas author# efit. The Federal c#n\en
lion met on the 14th of May. Up to the I8t!i q<
August no proposition was made to graut ony
authority to the Government about to be created
over Indian affairs. Ou that, day power#, in
dition to those previously agreed on, were propo
sed to he given to the Congress of the U.
Among these whs “to regulate affairs with In*
dians, as well w ithin as without the limits of the
U. States.” [Journalof the Convention, p. 200. J
With other propositions, this was submitted to a
committee, who reported on the 22d of August
that the clause in the Constitution, “to regular”
commerce witlfiforcign nations, and among
several States,” should be amended by adding
the words, “and with Indians, within the limit*
ot any State not subject to the laws thereof.”
[ldem, p 277.[ On the 31st of August, this
amendment, with others, was referred to a com
mittee formed of a member from each State pre
sent. [ldem, p, 318.] On the 4th of September,
that committee -reported that, in their opinion*
the 2d clause of the Ist section ofthe 7th article
the Constitution, atn- tit I— aoumuLm: : „ •
amg at the end, “and with the ludiau tribes-”
This amendment whs adopted on the same day
[ldem. pp. 320, 324, 326] The Convent,oo
then. Refused to give the new Government tkff
power to regulate nil affnirs with Ihe Indians (V
Ihe,- wtihin or without Ihe limits of a State. The
Convention refused to give power to regulate
commerce with Indians within the limits 0/ aim
Slule not subject to the laws thereof, but gave
it power to regulate commerce, with tie ludiau
tribes. The (air conclusion is, that the Congres#
were not intended to have anv special authority
over Indians within a State, “subjected to State
laws. Iftheir separate existence as a tribe is
destroyed hy State legislative enactments, the
ccntroul of tire Government of the E. States, e&
ven over the commerce with them, is at an end.
When members of a State, paying taxrs, they
are enumerated as a part of the representative
population; they are ns such, answerable to the
U. States only, as other members ofthe commit.,
nity. The acts passed in execution of this powv
er, although founded upon tnc mistaken assunrt*
lion that the authority of Cougress was not liuiiT
ed to the single object of regulating eumnter ce
with tile tribes, but extended to any intercourse
with them, here, nevertheless, all contained the
acknowledgment ofthe State power. Ail Indian*
within the ordinary jurisdiction of the Stales, amj
surrounded hy white inhabitants, ore expressly
excepted from the operation of the intercourse
laws, und the State Executives are vested hy
them, equally with the Executive ofthe V. Stater,
with authority to permit w hite persons to pass in
to and throughout the Indian territories. Under
this construction of the Constitution, the State*
of New England, the States-of New York, of Ma
ryland, of Virginia, ofS. Carolina, in relation ta
the Catawbas, iiave continued to exercise the
same legislative authority over their Indians ae
prior to the establishment of the ueiy Government,
No difficulty has occured, no question has been
riased. lihat is remarkable, is, that in net cue
of those States'iiilii, wit bin the bvst !en years, have
any ofthe Indians been fairly within the meaning
of the Ist article of the Constitution, or been tm
braced by the provisions of tile intercourse i ..s
In none of these States have the Indians paid tnxi
es; in none have they been, until lately uiihia
the ordinary jurisdiction of the State One act
ofthe Legislature of New York, passed April I2ttf
1822, is w orthy of notice, as ah evidence of"ihc
undisputed power of §tutc legislation, nod ofthc
necessity for its exercise. An unhappy creature
an old Indian woman, was executed by the Sc
uects for witchcratt. Ihe executioner vr.—s
tried, convicted, and condemned in the courts .1”
criminal jurisdiction iu New York, althou-h the
act was committed on the Seneca lands ‘and
obedience to the usages aud ciiitowjy of the n iu.
The Legislature pardoned the offender, the ii.l
stuineutof the tribe, at the mine lime, to pit
rent a further disgrace to the State bv the cei
miss.on, Within its sovereignty, of similar atroe
ties, the Legislature enactedth.it the sole nnd er
elusive jurisdiction of trying and punishing ,vt
persons, of whatsoever nation or tribe, for crime*
and offence* committed in any part of the Slat,
except offences cognisable under the Constitu
tion in tLe courts i.l the V. Si.-.tes.of right Lev
longed to, nod was exclusively vested in. it s
courts o! justice of the State, organised uuuoC
the CmistilntioM tu.d laws thereof. | t j s not i: ,
tl. old States only that legislativ e power is e*.
cnc<.ovet !'-.d::i:.2. nlai.it, our young sister,
hl.tit c. j*-,;..u*y, has been, nud is const.™; y
i srmnrc to legislate, not for Judinas, but for
iwc ln C ''ii” ,^ 21 ’ M " inc •> not. in
1826, an additional act, “tor the regulation ofthe
oMuot Ik. 1 ufi>ttyEna4£ued<y tribt* <y'Jnditim .