Southern recorder. (Milledgeville, Ga.) 1820-1872, April 09, 1827, Image 2

Previous Page Next Page

Previous Issue Next Issue

Clip Visible Area View Page Text View PDF

Newspaper Page Textthe put twenty yc»r«, questions have been drawn into di«*'u-'»i.)n in, tbo upp tribunal* of ihW country. vital™* its in ttpniy as » confederated nmion. No doubt the settlement of such ques- ti n* requires a double portion of pru de'er, tvtiirh a grout d«ceti«eu atni> -•nun ab .1 rontfnferei) the god of this lower H'orul Great Jurists are, indeed, tin g cat light* of every free nation. I bey ■•eraAnally purity tiie Temple of L 'gis- ' l,i i n They bold in equwibriu n the ■acred rrnb s of Justice ; and when in inch rra!i s State Kigh'a and Sovereign tie* are t o be weighed, and national con troversies adjust ml, surely Judicature itself eaq admit ul'-no loflitsr (unction.— Yet such tilts hern the confidence of n (lrinkin* p-oplc in the ability and inte nt ity of their highest Court, that potSu" Stale* and turbulent parlies, have aajaii and again acquiesced irt decision* trri fating to thrir pride iimt repugnant t their Vo. a! inlercst»--tJeci«io«* aud e- vents pregnant with political ben-lti's to great ijnd poli-hed cooiriTUnitifts, t»y ft* hii'itim; the efficacy of mini influence en'hroncd noon the ruins - 1 ultiSHi ratio regum, which has en*Iaved mankiud.— The moral ii tluence of Washington’s unparalleled character dming his wr getir and moiflentuoo* life, proved the sheet anchor of our ll 'dilating vessel o' mate. Silica the loss of ItiA u'llily o< that immense counterpoise to faction, r is in Vain far superficial leaders to d *nv that such tfeejt'nl rveight in this vast con federally. !iu» l>rrn chic ly supplied by the ■on’s on of the. decrees of the Supreme Court of the United States. And lit*; trutlitpfthis asseveration, which will be developed and drmonstiated by histori ans of the n'*x' century, afford* oven now the best eulogy of ouf Chief Justice. Such in In ief is John Marshall, one ol the great lights io the upper region ct Am* ricuii Judfoturh. ‘ Long may he cen'inne such—ytbts* and tod/——aiiotiully Seated os he now is. mi the hen b l*f our Siipnnae Court in Washington. Altho’ now passing down the vale of year*, long tnnv he yet Lies'#anil adorn tin-J iHumi oiitfl his country, by (he steady brums o: his judicious rnimfyn the unimpaired lus tre of its meridian emand'io,':*. [Washington Messenger- X-.Urf? TSXU 2U2302V& Ml£l3SDOtiVlliI.F., APRIL 9, lull. We tunrtvliee/i furnished by n friend with it lie following document for publication — *Vo umliirstaon iT3 nrsrory to he a* i;,i- Iowa: Soon after tbo failurenf the negotiation* recently attempted with ilie Chickasaw *,jtiuJ Choctaw Nations of Indians, for pro curing a further extinguishment of their , title to lands in the state of jVliiwiasinni. m. the motwm own*. u—, rr—--rrfe^rrfr" press from that state, a meeting of the Se nators and Hepixisentatives of ilion* South*, ern States, Within tvhoso limit* then) yet remained laudato which tJie Indian title •wos net eTtir.Kiil‘,h«l, wa* ruouesfeiL— Accordingly, a majority of t!ie Senators and Representatives from the males ol’N. Carolina, Tennessee, Georgia, Alabama and Mississippi, and ilie delegate frpm Florida attended—A commltjee was np- pointpd cmisiatlni? of two from each mate, <o consider and,report upon tbo causes of 1lie failure of the recent attempts to pro cure further purchases of the Indian itilo, hv trealy with the tribes witititl the limits 0 f thu states represented, hjhI also as to any oilier means which e-nnld he legitimate ly nilutJlitd to pV.oeurc the .removal of the Lidia ns, and the extension of tile settle ments of tbo several suites, so desirable fur tilt* safety add prosperity of the Mutes in terested. This large committee appoint ed a sub-committee consisting of Slesei'a. MeKinty, of Alabama, fluid, of Mississip pi, ahd Cold), of Georgia—The doCtiruonr now published, was in part the result of the labors of this suh-commiitoe. That part of the report which was iutoudpd. to qdnuiyo into the causes nf the fuiltirp.pf the uegotiafihns lutely attempted w ith the Southern Indians, has not beeu fiirniyhad to us, nor do we know that it was ever completed —eirniriiKtnnceil prevented ano- ■ tber call of the meeting, so that tbo report wasnever considered.or adopted-by those ut whoso instance it was made. We do rot now venture to ex,cess any opinion upon the merits of the report; furt&r than In say, that it is welt calculaled dor the f,,rwhich ii was iiiiendc*’,'iz.. to direct the public attention m fin. evtifftnp- ration nf 'be luiporiunt topic w I tied it dis- eusies.—Editors. I THE REPORT. From the foregoing considerations, the veoniiuhtee venture to express the opiniofi, that tbo removal of the Indian tribe's nr*- cupymg lands within the limits of .the Statfesnml Territories represonlfcd in this meeting, by ibe mrftns bcreiolhru used of negotiation and treaty, is extremely jm- probable. The next question which, m,- turuliy presents itself is, are there an.vn- tliur lawful hod practicable iheuns to which resort run be tiad for acgniHiritsh- j.bg an object so dcairnbfc for tlieprospe- ritv, and so riepe$*nry.to the sti-engtb and politic, will soon loan llicir distinctive clm- racter, language and colour. According to the notions ol philoilthro py and human policy now so fashionable and prevalent,the proposed measure mu he considered as somewhat hold ami dar ing, nniHkiipiii-tw to ho sustained by an ap peal to tint principles of nil laws, national, politic*! and moral, by which the civilized world hr governed In tbo present ago. L is believed it will hear the tost ol all ot them. The e.o:*imiui-e admit the necessi ty nf enquiring into the propriety ot its adoption upon principles which even pre judiced min is cannot deny, because ot the novelty ami importance of the subject in itself, uti l of the consequences to which au erroneous decision may lead. It is to he regretted that thu ti vocations of the committee at this lime, prevent that degree nf research and deliberation requi site in such an investigation. They have tlinri-IViro-resorted lo hut few nuiliurities and dueiine-nts; lull the r&poeiuhllity an.I rtittlteiillvit v ofilie.se will not ho doubted, li the laliois of llu* committee produce no other ,e fleet than flu* uxi-itemotit of fort her inyestigatioii, much v.-iil have ticun iloiie for the object in view. The subject necessarily leads to an in quiry ns to what tints, midis the Lawn/ .V.i/tens, as established' by the universal absent of the civilized world, with respect to the rig/its an I powers according to civil- tied notions from thu dis.-mcry, oeciip.iti- on and colonization, ns well of uuilihuliit ed Hiul desert countries, as ofsm-li as were possessed by u sparse ami barbarous popu lation y A* to desert and uninhabited countries, the law of nations, as explained by Vatlel, (the only authority that we shall quote) is explicit. “All mankind,” -ays ho, “ have un equal right to the thing* w liicli “ have hot yet. fallen into the possession ol “any otlu j and these things belong to the “ first possessors. When therefore, u nn- “ifon finds a country utiiuliahiicil and “ without a innsior, it may lawfully lake “poJwissioii tif.it; and after it has sulii “ cienily made known it* will i i this ies “ pent, it cannot lie deprived of it by mm “ tlier.”—(Vat. 11. 1. c. let. sec. -i07 et seip’ Rut tiio American continent when dis co vei'fid, iVus not desert and uninhabited. In iho Northern part ef it especially, were found nil uncivilised, barbarous and erra tic racu of people, by whom Hie soil of the vast territory over which they roamed was npt cultivated, and the paucity of whose numbers rendered them incapable of possessing and using but a small por tion of it at one period of time. In such ease, what rights.resulted to thediscovet- irig pupoiis ? This question is also solved by the same w riter. If they were such nations as tin- “ ancient (Germans and modem Tariars, “ W ho having fertile commies, disdain to “ cultivate tlio garth, ami choose rather to “ live by rapine, [they] are wanting lo “ themselves', ami deservo to lie cxicrminat- “ ed as savage and pernicious beasts.— ” Them arc Others who, in avoid iigricul “ture, would live only by Inuring mid “ tl/eir flocks.” To which description of persons the North American Indians pro perly belong, the committee will not eX press nil opinion,'inasmuch as they con ceive that such a decision is litinceessary to Any.conclusion'to which they wish to arrive. Tho author proceeds—Tliis “ might (loulitiess he allowed in the lirsl “ ages ofthc vl-orld, when thu earth with “out cultivation, produced more than was “ eitmeiont to Ibcd its few inhabitant*. “ Rut at present, when tho httniuu ru<*e is 4t beUeyC tlml if tlio aeicrnl states for-jiiem- sdvos, and 'Congress for the t^rritori •.-, will extend .the <q»ei-utiot>ofjjie municipal lavvsofenclt, over the pprsunf of the* Indi- «us williin the limits ot'eneb,.iind in cases- where they have the right, will jvdiciovsiij appropriate the lands occupied by thein assigning to the Imlianp, indivuliin'lv’ eurb portions, by the eultivauiom of w hich W ith a very .ordinary degree of imiiatri, a’Buhsistence con be easily procured • one of two effects will be produced—Either' 1st, thu Indians will he speedily-Inducted to remove to the west of the Mississippi «r> 2d, be jug. Uica^oratud >nux the tiauous resolved /> i* Those who still retain this Idle life, n “surp more extensive territories than they “ would have oceasiou for, were they to use “honest labor, and have therefore no ren- “ sop to complain, if other nation,*, more “ laluirious, and too closely confined,conic “tn possess n part," &,c. (Vat. R 1. c. 7. s.8l.) in a subsequent pin i of the smile Work, the author discusses directly, tin* question, (as growing out of the disco very ol tho American continent) whether “ a nation may lawfully take possession of “ a part dl'a vast country in which there “ aro I’puiul node lint erraiie nations, in ‘‘capable by the smallness of their tmln- “ hers to people tin- whole Y t After a re ference to tile passage just quoted above, lie arrives at the eoiiclunioii v rlint akhutigli tbo “ moderutioti”.of the first.English Uo- lanists “ who purchased of the Indian* “ the lands they wished to cultivate is i|e- “ serving td'ju-airo’’* yet the disiuiverihg nations “have not deviated front the “ views of ilatnro in eontiniog the Indians “ within narrow limits.”—(.Vat. U. l.c. 18. a. 209.) •Cvn*idvrhig Vntte.1 ns good authority ns to what is national laic, it is believed that i l*e folio whig dednetimls- ncceSKarily flow frpiri tho passage* of his work, quoted or referred to. 1st. That the right of tho discovering nations to possess, necupy and colonize such countries as the Notch Aim-ricaii Contl- nfeiit, is expressly admitted ns being “ no deviation front Hie views of naturi:.” 2d. That it’ the i'nhifhilutits of sueJi countries as tho North Americitn Cotiti- nu^it attlie tjtno of Its discovery, are “er* choosing rather to live by rapine,” they nitty, ami “deserve to ho exterminated as savage anti pernicious beasts.” tld, That if they are not of this savage and pernicious character, hut are yet “ er ratic 1 ,“ refit tin {; to use honest labor” in cultivating tlio soil, and are “ incapable “fromnio smallness of their nuuibers U> “ jicoplo the whole country, Ac,” that still tine discovering- civilised imtiolt may 'la.vvfttlly possess, and occupy the country and establish colonics there, nnd confine -the Indians tviihin narrow tim'ts. • Upiin the«io principles all tlm civilised nations of Burepe have acted ; and by all, their force and truth htive lieen .m|inittyd, itisonmen that they might not, indeed, can- p’ot now he disputed. In some instances Safety of tho slates ami territories con-.„ suptn-siitimi and the force of religious cerncd ? _ , , 'yVeju.jires HcQ iildueed sttclt* nations as 'llte commiHeo ir.ituC there Oi'e—(liev-‘ tiro 1‘eisod the Roman Fattiohe faith to at. professed the Roman Catholic faith to at- tempt to add to the strength of rights thus acquired, by obtaining the sanction tied grunt ui the head of tho church—such •attempts have oniy excited the ridicule of ah men of common sense. ' to nuv otlC »vlio if. 11 read the history ofthc colowiv,align of llte North American Contimmi, it mil Imj cvi.lnit, that this “ imidluatlon ' in P'ircliasin;': rather than forcibly ’talcing, the lands discovered, from the finikin*, was more die result ol "policy, dictated by a .knowledge cf Ihoir'DUa Uc-tkntss, in flu- fust coldnists, than from any duubt or scruple as to their right to poysrsa. In every inStanrn w here they had no fart, toy Jiadu<)»«uch modcralian>"zJcii* Tim methods pursued ly the iliff* rent discovering tuitions, for tl|c nswrfioti umt maintenance ol llicil* rightl to tin ir new tiiseoverics thus aeptired, were not uni form. Spain add Portugal immediately proceeded lo establish c.oajplutc ilotniuiott by the*, exorcise of force ug&tnstilie inhuhi- tnnts, in eases where that woinmiou was deputed*, a method, however tmtelt it tin* been reprolmted, IV) othW nation ever choui -d the right to forbid or (u-cveiit. (.’rear Uritam a\et-c.igod sityilar r'glds and powera, by umkittg extensive, gra tis of the IhiuIh ooeilpintl by the iulmhitania, to individuals or companies, authorising llteiri to neeupy ami settle them. Ry Hlteli grants, the botitidarics of tho several st att-s, as they existed at tlio ilocla- alton ot imle- poudeuco, were settiod. lit eases where sili'li grants and charters were Kin-render ed, the crown proeecded in thevvork ol oceunnney nml eoloniantioil upon tho ori- ginul right ol’d’neovery. Til i •re are, aceordiug to the law of nati ons, coi'tn'm other rights, flowing qs neees- sary conse.juetiees I'rotn tliiti right to pos Hess, occupy and cnlouise such cotiutiitrs, which it is proper to unties at this stag*- of our Investigation. Wo sha!! ib> so by quo'itig tin; word* of Valtel htei-ally. Til's settl -numt ot' newly tJjscuWTPd eomttrics, which ImderioiniiiMtesa “right,” lie say*, “ comprehond* two things; 1st. “ ills domain, in virtue of which the tut- “ tion alone may use iho country for tbo “ supply of its necessities, and may dis. “ post) of it in such a manner and derive “ from it sit It a Ivniitnge* ns it tlnaks *• proper ; “ I. Ttir empire **r rigitt ot ao- “ vereign cOMinnnit, l>y which tlio nation “ ordains and regulates at its pleasure cve- “ ry tiling lliat pas-e.s in a couuti'-.” — (Vat. R. 1. c. 18. s. 201.) There]-two' rights constitute absolute sovegeigntsf a id the space over which it i* exrrri cl. i* tlio *• seal” of tint nation's “ jurlsdicdiuii," and is called its “ territory.”—(ib.) Tliis right ol'donmiti i s'again AJlulivid- ed into tin.! “ high domain, which is until* ing hut the domain of the body of the “nation, or of the sovereign whorepre- •‘sents it,” and which i* every where eon- si lered “ as inseparable from the sove reignty,” or tII.) “ itseful dam-in. or the domain reduced to the rights that may be long lo a particular person in tin- State, and may be sept rated from the empire ; ami nothing prev cuts ilie possibility ot' its be longing lo a nation in places that an not un der its obedience.” ( Vat. b. 2.,e. 7., s. 811.) These distinctions, in regard to the se veral rights of “ domain.” either the “ high ’ or “ the usefid," nnd of “ empire 1 ' hf‘“ so vereignty" “ jurisdiction” and of “ territo ry," as drawn by our author, should lie particularly borne in niind, because ii is the intention of the committee to attempt to show, 1st. That anterior to the Revolutionary War., they wen* all claimed, ami to a very great extent exercised by (.'rent Jhitaiil o- ver tbo territory winch, directly after that event, was claimed by the several, Stales of;liis Union : 2d. Tlint 'l.y the ndoplimi of tho Feile- rni Constitution, tin* people of tlid several States, Mtrrthdered a portion nftlieir right of empire nr sovereign command, retaining oilier portions, each State to itself: . 3d. That several of ti. s .States (and n- tnong others, (Georgia.) by articles of ces sion, surrendered to the U. States, both ilie “high" nnd tlm “ useful domain" ns to parts of it.* undoubted “territory,” re taining, each State to itself, both those rights as loot her parts, in so fur a* the same wore not stirrendercd-by the FeU»*»l Con: jjtiiution -• ....c cer tain new M issis sippi and Alabama,) ‘ the United States transferred to tint' people of sucit States, all of “ high domain” and of “ empire,” acquired by cession from tlm (.-Id States, over the ceded territory, (and nor surren dered in tlio Onnstiu&tion by tlm old Stales,) ns also kiicIi poi lions of “ empire” as was not yielded by the old States in the Fede ral (flovernmcnt at the ndopiiun of the Constitution. Stilly. That as regards nnv interest in the soil, the Government of the United .'Mates, on the admission of such new Slates, retained no more than tho “ use till domain,” a right w-hieli cannot, and ought not, to interfere with the exercise by the States, of nny of the rights of “ high domain” or of “ empire” as aro not sur rendered in the Constitution. I t. That Great Rrljtnin claimed, and to a very great extent, exercised, all rite rights jve have attempted to define, from the pe riod of her first discovery of the North American Continent, to that of tho Ame rican Revolution, is a proposition not dif ficult to maintain—As has already been said, it was it; the full exercise of thoso rights, that the Rritish'crown made such extensive grants of territory with eer- iain defined liitiits, without the least regard to the Indian tidle, to companies and indi viduals. By these grants, as existing at the commencement of the revolution, tin* boundaries and jurisdiction of the several .Status, were ascertains/! and established. At the time these grants were imoln, the soil granted was wholly occupied by the .Rid'eri.nrn could he had to ma ny ol them to show that they „ ljs . represented. But leaving these to speak for themswlves, trie committee will exa mine, because it is more intimately con nected with the subject under discussion, a Proclamation issued by the head and re presentative of the sovereignty of Great Britain, in establishing /certain new* Go vernments on tin* North American Con tinent. In tils document, it is believed, it will be found, that all.I lie rights which have been defined, were linequivocallif claimed and assti ted, sonic of them actual ly exercised, fil'd others were suspended, not because of any doubt ns to the want of right or power, or title, hut from more mo th us of.•policy- The’ I’rpriiuttation to which allusion is bad, was issued on the 7th Oct., 1763. soon after thu conclusion of the Treaty of Unrig,, (10th February, 1763.) (sue 1 vo'l. L. U. S. p. 413.) Tlio lending ahjeetofir, a 1 * is just said, was to establish three new Go vernments on this Continent, most of t!i>* territory within the defined lioundarie^ of each ol which, was then in the ucitupa-hcy' oftlu) ludintis. In this very act of ce'irb- tishing new Governments over territory thus ftccupied, is contained an as-drtion of all the rights wltielj are .constituent* of ab solute son, rriguty. ilo- “space” within the defined boundaries nf each Govern ment, i" expressly-called the “ territory” ofthc British crown. A like assertion of sovereignty may he found in the commis sion given to Sir James Wiiglit as Gaysre noriff Gem-eta-, - in whicj, the hnundttrias <d' that Colony are dcfniod nnd estlthlisli- eil—(s<*C 1 vol. L. II. S. p. 4-Id.; In tiii* Uioi-lamAuuii, the v< ry’rase of Lunds oi-cupii-d by the Indians, tint only found un an examination of all ot them that they prtic.ccili-d frein coiisidorstions of tar re ej-pciiipiry, and not iron) any doubt oft its rig/. I In itAurcise complete sovereignly. It is propel*, hnwnvci, to inciithui, lint' In the period intervening the 1 rcuty ol iu tliH |tt*w Governments thereby created, in the period intervening tot' t r J[ u, y hut within tho limits of other North Ante- peace nnd tho adoption ot the I- ctlnral rican Cclonie*, is alluded to, and regula- Constitution, these two htutes dtil not re , i t. i* .1 . nil dnt'prptirii frain from the exercise ot all sovereign authority. North Carolina surveyed and lions made respecting such lands. It spanks of tlm •‘In'diuq Trilths,” as being a „. ----- - . io, “with vvliot.t we (the British | granted to her citizens immense bodies ol tl) are cnnnneted, and who live uttdnf | lands then wholly -occupied by tbe llidi rnlrrlinn." The lands occtiniod by i tuts.* The Government of Georgia-held people crow , ourpiiilcclitm." The lands occllplqo Wi them ate referred to, not as being the ab-: Treaties with such ns were Within solute properly oftlm Indians, fas i* now rl-q boundaries, and ncctiptmts ot i.js ............... - , Tcm- tliculo'iisly asserted by tin: ncw-schoo) phi- j tory” bv-it.* own sovereign authority, and lantitroptsis,) but as being “reserved to] thus procured their removal Irom a pm-. Iqntiiroptsis,) ..u. .™ * - . ijir'ii na their Inmtiiig grounds.' 1 by tlieit.ouot its lands, by these 1 roattcs, tin exortiiso of a right of sovereign c*imuiand. Indians in seine instances (especially the Many parts of it might lie quoted t(j sits-1 Creeks, wltt.se occupancy was ot lands tail, the proposition titular consideration, I th**n wholly within tlia^iuitty fl( Gcoigia,; did the limits necessary to ho preserved in I acknowledged llu-nln-lves “ uieiohei's ' «>i this report, permit it. One only will liejthcHtnla.ofGcm^iB—fsiie.Tmity^'-Wnl- rclci-icl to —It is as follows; *‘And we do | pliinton in I7fv», Craw-turd’s Ifi'gi-si p. fun lu*r declare it to be-our royal will and j 607.) By that and other- 1 reu ties, la mb “ pleasureJ'or the present, as nForesaid, to w ere “ reserved ’ to the Indians lm tlx it “ reserve under our sovereignty, protection, ] liuuliug grounds, its pad- been pntcttced ‘•and doiiiinuy,n, for tliu.ua* of the said In-! by 'he British Cnvitruwiytt. '* dtans, till tlir lands and territories lying'to [' SI- Having lints traced,‘ briefly as “ tlio westward of the sources oflltc rivers possible,] tic* rights oi ^ “ domain and otn- whiclt fall into.llte sea, trom thu West] pile” of the original States qt theLnion, :r all the Territory within their re al Northwest us aforesaid : and tve do j ove lictly forbid, on pain i “ sure, all our loving snbjer “strictly forbid, on pain of our displen- apective limits, niul shewn as.is believed, ■is from making! that at the. period of tile close ol the U<*- uny purcliaso or'settlements, or taking j v'diitionaly war, and nflervvurds, they “ possi'ssiou efanv of the lands above re- j were eompleto and, undnnhted, the com- “ served, without our crpcoial leave anil li- mitted have arrived at a point in their in- “ cxnge, for that purpose first tihtaioud.”—| vcstigatioiis where a most important ques Froth this paragraph of the )*roelnntutlon, tion presents Unelftitr coitsideratinu, viz. fund more cs^eiqjly if taken in connex-l IIhvo any of tlie-e rights, thus acquired, ion wnh other parts not quoted,) it ran I l>««o yielded or relinquished by tile Spates In- sululy-contended, that the following po sitious aro clearly established — 1st, The assertion of sovereignty and dominion as well over the persons ofthc Indians, as o- ver the “ territory" occupied by them is direct, positive', and unequivocal. 2dly. - That as the subjects of such sovereignty and dominion, tlio Indians were taken un der the “ proteetiOn" of tho British Govern ment. 3dly. TiiC right to appropriate at discrdion the hinds Occupied by the Indi ans, is asserted, while at the same time it was conceived to he expedient to suspend its exercise “fir the present," except in so far as to “ reserve" thorn for the “ use of the iiptiuns a* their Inmling grounds.” — Rut an examination of the clause will show, rluit. a portion of tho “Territory” was rtot so reserved, to wit, that, (and it was a considerable one) which was situate East of the sources of tlm rivers men tioned. This also, to a great extent, was occupied by the Indians—Yet were they not appropriated to the “ use” of the In dians, Inti reserved to lm disposed of in some other way, at the discretion of the so vereign authority. The previous paragraph of iho same in- strninont equally sustains nil these con clusions and trom the terms used it is evident,-that hut for tlm express prohibi tions contained, in it, grants and appro- priatimis of laud occupied by the Indians would |iavc been valid, if, in other Huccts, they conformed to tlm general laws and regulations iu relation to them. I’o this elaftn and exorcise ofsovereign- ! ty, all other civilized nations assented.— I Other nations had exerted a similar sove reign authority, but in a manner ditleren from the course pursued by tlm Govern ment of Great Britain. As In-fore said, Spain and Portugal at once enforced an obedience on tho part of the Indians to all their laws, uni appropriated the .1 riWJk'Wt&'-TYovernnieii.t of Great Britain have done, had not a different policy boon preferred, ns attended with less cruelty and bloodshed, and as being more in ac cordance with humane and benevolent feelings ; for which reasons It received tho warm praises of the distinguished ati- iltor to whoso work such frequent refe rence has been made. It requires no other argument than the mere statement ol'the proposition to prov that by the war oftlm Revolution all the sovereign rights and powers, thus acquired, asserted and exercised by Groat Britain, passed to the people of t he States of tliis Union, (to tin) people ot'each Stale within its own limits)—Tlm words of tlm Treaty uf peace, will however be quoted to show whin Great Britain yielded, and tlm States acquired. “ llts Brltanic Majesty at* “ knowledges the said United StHtes(imm- “ ing each,) to he free, sovereign, and inde- “ pendent States ; that he treats with them “us Bitch; and for himself, his heirs, and “ successors, relinquishes all claims to the “ Government, propriety, and territorial “ rights of thu same, ami every part there- “ of.” The same motives which actuated the British Government to suspend the oxer- eisn of complete sovereignty, operated upon the Governments of tho "States of this Lf- ninn, after the right to exercise it was tlmfc transferred to them. Indeed tlm circum stances in which many oftlm States,claim ing the largest portions of unappropriated territory, were placed,furnished addition al motives for such suspension. Georgia nnd North Carolina were two of them.— They were comparatively with what they now are, weak ia population and resour ces. They find fust ceased, from partici- pation in tin) Kovonmontiry struggle, ex hausted of the means necessary to sustain their sovereignty agonist the Indians, then much more mimcroqs and warlike than they now are. An attempt to exercise these sovereign rights, undoubted its they were, might have led to-bloody contests, greatly destructive nf hitman l'fc.atul pro ductive of human misery. Humane .and magnanimous principles doubtless had their influence—Rot in fact such an exer cise of authority was then, and until re cently lias been, unhecessnrv, becan.su theretofore the relinquishment ofthc In dian occupancy, (permissive and gratui tous ns it was) for an extent of territory more than commensnrare with tin, do- mand tof new lands ti,r the purposes of cultivation, was easily procured tbr a tri- fling consideration. Nor v.as the Indian character at that period, such «•, to gen der an incorporation of them into the bo dy politic as “ members” ol'thp States, at all desirable. These, with many other reasons, maybe aUedged, not only with plausibility,i>ut truth, as operating cau-.es for the policy pursued, But it will he * Nearly nil the valuable land* in the Slateef Tei'nesser, (Ij'c.n a part PC Novi n Carnliq*,. atnl almost wholly in hiilinn occupancy) acre thus surveyed nmt gt^amted and since the Jitdiantti- tic has hem extinguished, which was not done, lor tlm nicst part, until since the bite war. the validity o' these grants has never been ques tioned or doubted. possessing thein ? au-t if up, t" ghat extent, in what manner, nnd to whom ? If these rights of “domain and empire," constituting the “ sovereignty” of tiny of the .States, have been surrendered at all, they were surrendered to the Federal Go vernment ; nml tfie evidences of such stir reudttr are either, 1st, tho Federal consti union, or 2d. cessions of Territory by the States to the U. >S. by compact or agree ment. If the surrender is not to he (bund in min or the other ol these, they are ve.l retained by the States am! may lie oxer cisetl at discretion. It is true that the articles of Confederation had hern adopt ed, nml were binding upmi a majority of tho States- at the conclusion of the Trcuty of peace in 1763, when these rights of sovereignty were formally transferred nnd acknowledged by G. Britain to <lhe States—yet it is believed to be unneces sary tocxninino that instiument critic..! , for two reasons, first, because on ilispvrij on, it will be found that any grant of pow er contained in it, hnvllig any bearing on tite question under consideration; is quite as hronrd in the Federal Constitution, as in the articles of confederation ; and Se condly, heentiso all tho rights and powers yielded by tlm confederation, must ncoes sarily be presupposed to have been return ed to the people of tlio several States, be fore, or at least, at the time of the udnpti on of the constitution, llunce wo must resort to the latter only, ns containing ovi tlenco of the surrender of nny branch o f sovenignty by the .States to tho Federal Goveriinicnf. The articles of confederation will in deed he referred to ; but they will be con sidered oniy as furnishing n 'clue to the proper ooiVsirtictiqu of the constitution, and nut ns containing grants of sovereign power never obligatory on the States. Thu committee think it proper here to remark, that the rule by w (licit they have bo«n governed, in arriving art what they consider the rightful construction of the constitution, has been strict, not to say ve ry strict. They considered that inktru tnent ns the grain of tho undoubted rights and powers of the States, or the people of the States. That it did not yield all tpe rights and powers possessed by them sove» rally, considered ns sovereignties—That it is important, for the seem ly as well ot' the liberties of the people of the Slates, ns,of the retained rights and powers of both stoics and people, that the rule should he strict; and that the usurpation by the Fe deral government of such retained rights and powers cun be prevented liy no other means short of the ultima ratio regum. - Let the Federal government freely exer cise tite powers undoubtedly gnuiunl, and which are obviously “ necessary and pro per” to ucoomphsh the great objects of the confederacy, buf let it exercise up others. Bv the articles of confederation, the rule for its construction .was well de fined by the declaration, that “each State “ retains its spvcreignty, J)-cedom and inde “ pendnice, nnd every power, jurisdiction “and right, not “ then-iiy” expressly do- “ legated.” It is admitted that frot’ii' the corresponding principle ay contained in the Oth and 10th amendments of the Constitution, it may, in so the measure he inferred, that tlm very great strictness of the rufe of construction, was, to some ex tent, relaxed. Tho word “ expressly” as connected with tho delegation.of powers, is omitted. Rut it is conceived that the mere adoption oftlm amendment at the ex press requisition of the States, can induce no other opinion, than that the parties to tho Constitution intended that the rule of concerneriimshould *'outinuo 6> be, if not t’fry eltdcf, lit Unji), strict. That co-fn'/t brunches or constituents of overeignty, were yielded by the Stales to thu Federal government by tin* Constitu tion, is admitted—curtail! branches of the right pf,“ Empire” were evidently con ceded. JR'I'ore the adoption ofthtit eom pact (the Constitution) each Skate, consi dered its a “ liation,” could ‘‘or.luiu and “ regu|nre at pleasure, every thing tliVrt “passed” within its limits. After its 1 a- dpptio*i, the Federal government, exchi-, bively, could “v.rdain uiril regulate certain tilings, the Slates retaining tin* powers,to “ohlniii and regulate” all Others. Rut whether thu right iff “ domain,” in any of its branches, was therein* granted, is a proposition that ought not liebo conceded but upon a more e.gtended and profound eontuderatiqu ofthe subject, thnn can iiow be give.; to jt. That the Siules (Hmoudiu’d the rigjitQf eminent ur high dpmuin, tu b * exercised to a certain extent, may be possi ble, if, upon examination, it should In* found, that without it some of the pow ers undoubtedly granted;could not* be ex ercised—hut that tlio “ usefu[ domain” as vested iu t.'ie several states, especially to unappropriated lands within ftiuir.re.-tpec live limits, •wnsyieltludbythe l’iiisiitu- lioij, is,positively' denied. * It inayltc that the Fedora! government. Wive exercised and '*:iu exercise this right of “ it-oftil do main” over cm* laiu limits of territory ; lint that right was acquired, if acquired m nity 1 notby the Fore ttimlon, hut hycu,,, paeiVitii particular suits, Ifllieie be in the Cmisthution nny gintn of tha rights in question, itStllt be round in one er tlm other ofthe following, 1st; tin, power “ to regulate rbmtnercu with i| lc Indian tribes” or 2d. the ptmer “ torfi«ko> treaties Ac.” Each of these grants will be briefly examined. Under the words “ to regulate com. merec with the Indian tribes,” is the power eoiiceded to the Federal got eminent, eith- er to appropriate the lands oecupied by th e Indians, within the limits of any 8tnie,„ r to extend the operation ot the municipal laws (Imtli State and Federal) over tlm persons oftlu* Indiaim, if deemed cxpcili. ent to do ho, and especially in cases wlitr* the State at tlm time of the adoption of tlio Constitution, possessed nnd exercised tlm rights of “domain” nnd “empire,” as bdoru defined and attempted to be shewn ? If examined by a rule mcrelt/ strict, niuj strip them of nil political mysticism, these words liavo nothing enigmatical in tin in, and will admit ofrnsy eo'istrnrtiun. AU though jt may appear cjiildish, they w i.‘l heexatniueri in the order in which they stand in the Constithtiop. ■ “To regu- late” hieans simply’ to' prescribe rutis,—. “ Commerce,” means no more than Omt Irailc, irnjjlc or intercourse, carried on he* tween nations or.ijufHiditals, t>y an ). c . change of equivalents in value. The “i„, tiinu tribes" are the erratic occupQnt.1 of “ territory” reserved to them, over win I, the States (eaeli w ithin it* limits) claimed and exercised sovenignty after the Tnmy of 1783 with Great Britain, and who were tlieneelinwaul considered citherng *‘ inetnbers”of tlio States, or il'imt “ inejn* hers” wandering and unsettled “inhhbii tnnts” (site Viutel b. 1, c. lit, s. 213) under the “ sovereignty, nonunion, and protec tion” nf tlm States within whose limits they were. As saieli “ tribes” they have bcetf, and will be considered until they did, or ehiill become “ members” of the States, and of tinmc the subjeiitKof muni cipal regulation. From the moment .they became or shall Ip come, sip b “ iiieni- b**rs” ami subject-*, tliey did or will lose their character and fit It* of “ Indian tribes” nnd nsstunc tlmt id’ “ inhabitants” nm ta say, ‘'"citizens" nf thu State in which they are Yet so long as Hum continue an erra tic people, nnd i ot tin- stdijbctsoftlu* mu liicipal laws ofthe Htutes, they are view ed as “ tribes." But even in tliiscliarnc- ter, they can have trade, trnfiic or com merer,” with their mum civilized save reigns. Whether considered us hunters or herdsmen, (and as yet they have tisen no higher in the scale ofeiv ijizuliopj tiny ran procure by lit hour that which is u-elii!, and therefore valuable to civilized intm.— Tlicirfurn, their bides, their flesh of die deer and bnfliilo, and many other articles lire useful -to tin: puo|i)e of the U, Sillies and therefore lair subjects of traffic, in “ cummurfe.” That such _*,* cununi rcc’ can he prosecuted; if not regulated, with out frauds, impositions, and const ipicnt altercations atul si rife, is not to be expect ed. That each Stale can “ establish rules” for its pyosecutjon, is impossible.- The conflicting regulnlions of the t?ta*es ns in the case offoreign commerce, wnuld renderit so. Mono tho propriety of cun. furring the po-.vur of regulating jt on the Federal Government so long as the Iiyl an* preserved (.heir cliarnetur and title ot' “ trihpa.” It was ruiifepred bv the Con- ittituiion. Rut in'that grant neitlier the Slates, nor the people of the Slates, dream ed that thptc was contained a cotici of any right of domain or empire, further than wlmt was expressed by thu cvale.it meaning and import of tho words em ployed, 'iz., the establishing of rules, nr cording to which the tmjjic of equivak.il values should be prosecuted. Smi less did they dream that •they were yielding a control of their own “ Territory,” over iho w hole space of which, they ligd conctiv. ed themselves possessed of the p«n\e. uf exorcising those important rights. Ha the contrary, they believed that the rights of soil and jurisdiction, lo ho exercised discretion, were retained, and with them the power of changing the character"f the Indiana from that of “'tribes’ to tint of “ members” or subjects of munici|*al regulation, as theretofore practised by them. That these rights were suspend'd iri some instances by tlio positive eiiin - !- meut of law, and in others by a fttiliiret’ act, is true, and during sum Pusjien«t*>a tiio regulation of trado with the imf tmtglti be. very, properly conferred on tlm Federal Government. But w lienevenmli suspension censes, with it must ceased' 1 ' power of regulating trade with litem a/ s“ Indian tribes”-—Thenceforward they I"'* eouje “ t rm tn be ns” ofthe Statu, and ecu- merge with them, must be regulated a: with "other “ megglmcs’’ ql’n State. The policy injupit d by the Fcder,*!! 6 vernment, and the measures which mein progress under its sanction and by its au thority for tin*, civilization of tho Induil tribes, especially iu t.ho Sout-li, pre-fd anctliur important question in uonncrli- with tliis brancli of the subject. B'*h-‘ |? the sums expended pursuant to Tre-vf tipulatiolis with the Indians, which considerable, it is known that *8 lM® have J)i*en anuiiajjv nml permanently "Y propriatoit loTth’is tihjecT. Sc heels l' | i v '* been established io the.nations, mission 5, rics and mechanics have been sentani' 1 them, nnd various other m«*atH ttsetu ” enlighten, christianize, and refinetrtcm The avowed end of t hese measures is ,il? jiroparatipn oftlm Indinus.fur ri»tr»ilo*’i’ 9 inH) thu.socinl ibimly', tmd tlint'cacl .-“■■‘"‘f t*> be spoken of ns within the timlmtb’* scope of.the powers of. the Ucilcrf‘ veruinent nlonv. It is not ueccsstr)’! 9 enquire into ilie prolmblc success ef tttdf “lettsurefl, It is known that great boa* ings tinvo been uttered chnccfnini? |, ’ < pfri^rcss (vliicli lias been imuhi. Sttjip success attainable, it is more import# 11 ! ,J i enquiry ntnlur wliat possible i cons?f# fl113 uf this or any other grant ol’ptnvcf •■'*;' lojnetl in the Constitution, can it It* 1 ' that itie Federal Government can e’ : ' the operation of tile municipal laws * Slate over the persons of the Indians, leclnre them tn have pas.ed from t' ie J''j barons to thu ciytlizctl character, "-I It is admitted ta bn too latenon'to the qucsiinn, *' under wliat cUttse vl tl 1 *' ^ staiuieii is. (jit- Ke.lciul guvermnent )tult* nr * j ta receive cessions of tcrritqry from the s cffl »b'i<!5, t>y contract 05 agreement, 'oljtcr 1 p'lSC'*.* I'lircl.ascd * * for tin* erection ef !**• •'* .j g*y.i)!M, nr-cuals/cl-iftkyanis end otln*r 111 •uiiliiiiigsV't it is a :grave quest 10 "”! 1 ing however, is to bo gain, d by - ,Tl 1 dutte ir igust tie di.cussed ljt-1 .»-<*<*u a s>"* 1 iy'h.i'i'ig tin power, coiiipjus<i re b'' j* 1 " 4 tltui'jing u’lpuwfr.

Georgia Historic Newspapers

Southern recorder. (Milledgeville, Ga.) 1820-1872, April 09, 1827, Image 2