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I
CHGROKEG
gggssgaasgg^teg "■ja ,i ?.Hri
. BOUDIKOT, EDITOR.
tEJXIX
& U’»t.US' AIM OCATF,
EW ECHOfA, s
SEPTEMBER 3, 1831.
VOX,, IVi-NO. 10.
no pretence has been set up that they
had been disregarded by the execu
tive because these nations have not
observed them on their part, and
kept their faith with us honestly.
They were well understood, original •
iy, on ail sides, and are framed in
language that cannot be perverted.
There can be no quibbling as to the,
real intention of both parties. The
terms are not susceptible of different
sign ideal ions, and the expressions
used are definite and suitable to the
subject matter of them. It is >6*-,
nough, however, that the Executive
has not assumed to act on ihis ground,
and the complaints of had faith are
unfortunately all on the other side.
Nor are we examining whether the ca
sus jeedcris has occurred under any
treaiy with a third party, by which
any engagements on our part, not op
erative before, have come into, force.
He claims the broad power that it is
for the Executive to'^Jeterminc the
abrogation of our stipulations, be
cause Georgia has enacted certain
laws for more effectually exercising
the jurisdiction which she claims
over the Cherokee naflon and their
EXTR \CT lands He maintains the light, in
From a Spcpch of the Mon. Hr.NRYjthat department of the government,
fe. Stour-., delivered in the f/'usem^) treat the obligations, by which the
of Representatives May 15, 183).*h'
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I X D f A S.
our embarrassments, and brought a-
bout the present disorderly condition
of the government in this matter. It is
to support measures It doctrines like
these that appeals have been made,on
this occasion, ts> the friends of State
rights. I think that if they examine
their principles carefully, we have
reason to bejjflpgldhat they .will be
ude of the ques- "ehon
f \ Tl
States have entered into treaties, the
Executive may revise their solemn
acts—that he -may judge over the
States and above the State*—that he
Slates. That suggestion is a uu-re
abuse of words. It may as well be
said tlift the sovereignty of a partic
ular Stale is dismembered by (lie eon-
may entertain an appeal from them stitutional operation of the laws of
to himself or his cabinet—that he
may virtually abrogate their treaties
by au order in council, and give the
force of law to an executive proclam-
piofessed to exercise ihe right ol im
pugning the integrity of your treaties?
on tin Bill for the removal of the In
dians. •
At the threshold of this inquiry, we
shall find ourselves m<*t with a very
grave question, intimately cqpneHed
with the treaty making power, with h
I.hopp those who intend tt sustain
wh..i has been done, will be able to
answer to the satisfaction of the
House. I am the more anxious to
knew their views of it, as we have
lira d 9omn specious appeals to the
friends of State rights, to come for
ward on this occasion, aod sustain
their principles. The alarm has
been sounded; and they havp rushed
to file standard with an alacrity which
leaves us no reason to doubt that they
have really believed their favorite
do- trines to be in jeopardy. I fear
that these appeals have had some in
fluence upon the question before us
If there was any point, on which,
more than any other, the opposition to
the adoption of the Constitution ori
ginally turned, and the influence of
which has been felt by one of the
great parties which divided the
country, it was the apprehension
that the new government was ei
ther too monarchical in princi
ple, or would turn out to he so in
practice. This alarm too. was chief
ly founded on the opinion that the
Constitution had provided no ade
quate security to the States, hv im
posing definite and Cflfj^ctnal limita
tions on the executive powor and ex
ecutive discretion. It has been a
fruitless source of crimination, whe
ther just or unjust, upon one of the
parties, and especially upon general
Hamilton and his friends, tljat the
tendency of their principles,^ and of
the measures which they advised, was
to invest the President with powers
which must prove fatal to the whole-
fenme influence of the House of Rep
resentatives and destroy the control
of the States in the Senate. Under
these banners, battles have been
fought and won; and laurels have ei
ther been, or thought to nave been,
" fathered. They have certainly been
Claimed as the rewards of victory,
and are even yet worn here as the he
reditary honors of the. field.
The question before us does not
involve the right of Ihe President, in
the recess of Congress, to decide, in
the first instance, for the regulation o£
liis conduct until they can be conven
ed, the mere construction of the
terms of a treaty—nor to determine
the effect of an infraction of any of
its engagements by 1he other party
There is nothing ambiguous or *
foiled States are hound on the face
of the treaties, as annulled from
that *i.n•»—that they shall be re-
redyced to mean nothing any lunger
—ili a wordy that, from Mint time,
they have no exisieuce as treaties
wit hr the Cherokee or Creek nations.
This is the doctrine which must be
sustained, and it is this stretch of ex
ecutive power which must be vindi
cated by tlmse who support the ineas
found on
It is well;Jtnc@fth that the disposi
tion of’the titeaty-in,rking power was
one of tHe .most dtficylt points to be
settled in the Conventi n of 17819
In Europe, it was in if* Hands of the
sovereign, and was liable to the
greatest abuse, it had been used
there for personal objects, and per
verted to the most mischievous de
signs of ambition. The whole policy
of many of the European governments | The power. Sir, to adjust and settle
had been seriously Evolved in the ex- j the conventional law of all countries,
ercises of this power, and it had led j must exist somewhere in all govern-
lo measures the most fatal to* their i ments. It is vested here m the States
prosperity and. peace. Indeed, Sir, j themselves, and when they have es-
many of the calamities which they | tablished it, the political ol
suffered fot a century may be traced : others become irrevocable. YlwSre
to the abuse ol this power in the hands denied the power of unsettling it, or
of the crown. It was in the view ol j revoking your obligation at your own
this evil, that, under our Cons, itution, j pleasure. Abov<. all things we have
it was considered unsafe to trust it to never trusted the Executive with
the Executive. In Europe it was that dangerous prerogative. 1 lie ben-
prerogative; but In its if was to be j.ate was vested with the power to de,
limited by the Constitution, and sub • (ermine Ihe conventional law of the
jetted to the control of the States in , Union, because they are the peculiar
the Senate, where their sovereignty ' guardians and conservators, as well
was equal. It was a political power, I as the representatives of the States,
which so seriously effected the gen-1 in the exercise ol that (unction oi
eral policy of the country in its rela-; their sovereignty. In such matters
tions with other nations, as well as in as, i® the exercise of this high polic
ies operation on the prosperity of the foal attribute, might affect their eiti-
States at home, that it was even con- ; zens or their own jurisdictions, it
sidered unsafe* to intrust it to a raa- : could be safely trusted no where else
ures of the President The doctrine jority of the States, and the concur-i'1 he individual States were denied
will reii'di our tie-,ties with other rencc ol two thirds of the Senators this power, because that might defeat
was. therefore required. For this the conventional law of the whole,
purpose, the Senate is the council of There is nothing new, or suggested
determine- the Stales, and the treaties are the lor the first time, in that operation
acts of the States. The Executive j of treaties, which, to some extent,
is little more, in that respect, than affects and controls their domestic
the agent or organ of the States, in jurisdiction, and impairs, in some de-
matters of negotiation. He may re- gree, what gentlemen have so tena-
fuse to act at all, and shut the door of; ciously held to, as the reserved rights
negotiation, oi decline to submit his °f the States. Every treaty of litn-
preHuiinary arrangements to the Sen-1 its must have that operation The
ate. This was deemed t^he quite as treaiy of 1783 abrogated all the State
much power as could beRely trust- laws which impeded the recovery of
ed to his discretion. His will or his j the British debts, and prohibited the
opinion, however, was nothing with- j States from passing any in future—
•out their sanction. The treaties, j Yet the eltl Congress had no jurisdic-
therefore, express the will of the ti»n over that matter, except as a
States, and not tho capricious inclina-U‘ esu ll °f th® treaty-making power,
tions or the pleasure of the executive ! In Ihe letter of Mr. Jeffer.son l« Mr
department. They would have been
the supreme law of the land under
the lav* of nations, without any ex
press provision in the Constitution;
but' that sanction has been superadded,
that .there should be no question oi
supremacy. As they constitute the
public law of the country, the Ireaty-
making power was withheld from the
,Executive, because, under our Con
stitution,this was to be a govern
ment bf law, and not of prerogative;
for ff his will vva9 to have thff force
of law, that was, to a certain degree,
despotism. When the Executive
and the States have entered into a
treaty, the Constitution has attached
its sanction to it, and ^iven it all its
efficacy. Its validity rests upon that,
and its force and operation aro sus
tained by that* Wfipn once fixed and
adopted as the law ef the land, the
Executive has no dispensing power.
His own duty is plainly prescribed in
the Constitution. The control of the
States over his will has been constitu
tionally intorpose'd to very little pur
pose, if treaties are to ^ake effoot or
not, or be suspended in their opera- crative representation of these sove-
tion afterwards, at his pleasure, with
out any violation of them by the oth
er party. They are clothed with a
sanctity which entitles thehf to higher
respect than our mere municipal reg
ulations. There arc twd parties to
them, and the public fakb secures
their -inviolability. And) yet it has
been gravely aswrted* and attempted
to be maintained* that,' after the
regulating the cum-
country. The thing of
einen speak is the cotaii-
reignty, which exists no
der our institutions. 1 eon-
at the States have, in ihe
t sense, retained to themselves
senate, their own contioi of
he treaties and laws of nations
constitute the'public law ol the U-
nion. They deeply concern private
right, as well as the political relations j their reserved rights in the exercise
of the country. If a question should | of the treaty-making power. It is
arise betw *eti one of your citizuns j safely placed there under their nun
and the government or a foreign povv- i conservation, and they are bound, in
er, would tbe judiciary regard an in-j good faith to tile Union, to respect
terposition of the executive, which -> • >
powers, too, as well as those now be
fore us; for we are examining llit*
right of the Executive to
such a question at all, in any case,
and not whether he has decided it
correctlv in this
But, Sir, (he power asserted will
be much higher than the Executive
claims it to be. The assumption on
which it ostensibly rests in the mes
sage is, that, by the happening of the
contingency, that Georgia has '■'ex
tended'' her laws over the Cherokees,
the treaty has now come into colli
sion with the jurisdiction of the State,
and must therefore be yielded. But
the principle which lurks under this
disguise realty goes to the annihila
tion of the treaties from the begin
ning, and assumes that they were
never binding pn the United States at
all. If they ever were so, no act of
one of the States could discharge our
obligations. The jurisdiction of Geor
gia must have been as perfect when
these treaties were .first made as it
was in 1827, and the general laws ojf
the State must have always applied;
to the Cherokee country. If the
tieaties are invalid now, they wer*
always so. The light of Georgia to
the improvements of " the Cherokees,
too, is as perfect as it is to their va
cant, lands. There is no hiding-place
half-way. There is no middle ground
on which the Executive can stand.
1 dOubt if there was ever meant to be
any, for less than the whole would
not reach the object to be attained
The principle set up cannot be ar
rested nt any point short of the total
prostrrtion of the treaties, and the
unqualified power in the Executive
to mould and fashion them, and to an
nihilate thefe or another treaties at
hia own will and pleasure. "He asks
no advice from any other department
and consults no co-ordinate branch of
the government He \ck now ledges
no obligation to such a question to
Congress or even to the Senate.,-—
His march is onward to the direct ac
complishment of the executive will,
as if the whole action of the govern
ment on this subject was the exclu
Hammond, of the 29th of May,‘1792,
he says that it vva9 always perfectly
understood that the treaties controll
ed the laws of the States—the Cen-
federation having made them obliga
tory on ihe whole; that Congress had
so declared and demonstrated them;
that the legislatures and executives
of most of the States had admitted it;
the treaties which are tlieie entered
into. They are represented and art
there sb in their original capacity —
They could not act with convenience
or usefulness in any other v ;j —
Their rights are sate in thee wn
council. What is consliliiljuu ! y
Mined there, becomes their j). r iq
law, 'arid they ore bound to < bs< •, vu
it. It is not pet haps strictly ;• legis
lative power, though Mr. M.idiscn
has treated it, in a publication to
which 1 shall presently refer, as |> r-
taking much of that character. The
Constitution declares flint “all legis
lative powers” therein granted shall
he vested
C
engross.
IS not,
of
.9
however,"'essential to the views >\ v.clr
I take of the question, to cecsidef
that point.
The course of ihe Executive fa g
overturned these constitution.;! secu
rities of the Sfat-’s and sn.ept a'.vay
th«ir power. His don Hues fa*! no
thing short of an assumption of i a
power of Congress to abrogn'e , : s
public treaties in a case of high ,.ud
Uncontrollable necessity, bv cxrreisi. g
llic power of declaring u nr. if t i r-
friends of Sla.e rights p.opose 'o
sanction the violation of these I • v -,j
treaties, they must hear him out r>
the full extent of’iiis thought ess u-
surpation 'Phis question is not al
together new, though no stretch
executive prerogative like this I
ever before oc' uned cu been clai ned
under any administration. I presume
that gentlemen are familiar wilh iho
history of the Proclamation of Neu
trality, issued by general Washington
in 1793. This declaration by the
President of the disposition of the
government to remain at peace, am!
warning our citizens to abstain from
any acts that might involve them or
the government in the war. was look
ed upon with jealousy. !t was a top
ic tf much remark, and 'as closely
scygfepsed. Yet it violated no trea-
ssumed to suspend none of
[{rations, and settled no qurs-
tioinphrising upon them. Genera!
Washington neither claimed noi exer
cised such a power. The Proda-
were annhlled by the treaty.. It
woujd J)e\4 u it e ea8 y to re f ei ' to nu-
stances of the same sort
’to"Varieus treaties since the adoption
of the present constitution. As it
Was foreseen that such must of ne
cessity lrt tfaeir effect by the law of
nations, that feature of the old Con
federation, which retains this power
in tifie nands of the States by the fed
There is nothing ambiguous or of ment on this subject was uie exciu-
doub'tful interpretation on the face of .s.ve attribute of P™er
^herokw wfl Creek treaties, and 1 It t» this, Sir, which has led to a
and that the judiciaries) both of the i cuatfllh^ was precisely "’hat,.it pro
separate and general governments, fessed to be, and no more, jliend-
bad so decided. He stated further, I ministHition assumed a posture of
that the formal repeal of the laws of j neutgglity, and the Proclamation de-
the States was* all shpererogation, and dared the intention of the President
show’tid that tfreqj’gia herself had so j not to change the relations ol the
considere'd it, afid her courts had so j Government, until Congress should
adjudged. It was every where con-1 convene and settle that qqestion. la
sidered that these law's of the States the mean time, our citizens were fer-
'- - -• - warned, that if they mingled with
the parties to the war, and took part
with either side, the government
would not exteud its power for their
protection. It was unanimously sanc
tioned in tho cabinet. Mr. Jefferson
approved it, and has informed us that
he “admitted that the President, hav
ing received the nation at the close *f
Congress, in a state of pesice, was
bound to preserve it in that state till
Congress should meet again; and might
proclaim any thing which Went no
further.” Whether the Proclama
tion was to be treated as implying a
pledge of future neutrality, was a-
nother matter, and a speculative
question. But general Washington
and his administration were uncom
mitted to any such construction of it.
It was an abstract question, and th*
reign-ties in the Senate, is continued
under the present Constitution. It
was confided to, or rather reserved
to the States there, as a political Con
federation of sovereignties.' that they
might determine for themselves how
far, to what objects, the conventional
law of the Uniun should he extended.
It is not, in any sense, the dismem
berment of the sovereignty of the