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[F roin the firsl
difficult to comprehend the proposi
tion, that tho inhabitants of either
quarter of the globe could have right
ful original claims of dominion over
the inhabitants of the other, or over
tho lands they occupied: or that the
discovery of either by the other should
give the discoverer lights in the coun-
to
try discovered which aunul the pre-ex
isting rights of its ancient possessors.
After lying concealed for a series
of ages, the enterprise of Europe,
guided by nautical science, conduct
ed some of her adventurous sons into
this Western world. They found it
in possession of a people who had
made small progress in agriculture or
manufactures, and whose general em
ployment was war, hunt ing. & fishing.
L)ul these adventurers, by sailing
along the coast, and occasionally land
ing on it, acquire for the several Gov
ernments to wiiora they belonged, or
by whom they were commissioned,
a rightful property in the soil, from
the Atlantic to the Pacific; or right
ful dominion over the numerous peo
pie who occupied it? Or lias nature,
or the great Creator of all things, con
ferred their rights over hunters and
fisherman, or agriculturists and man
ufacturers?
But power, war, conquest, give
rights which, after possession, arc
conceeded by the world, and which
can never be controverted by those
on whom they descend. We proceed
then, to the. actual state of things
having glanced at their origin; because
holding it in our recollections, inigh
shed some light on existing preten
tions
The great maritime powers of Eu
rope discovered and visited different
parts of this continent at nearly the
same time. The object was too im-
maiise fjr any one i .of^lbe'u
gra^p the whole; and the claim
ants we;ej too powerful to submit
to the exclusive or unreasonable pre
tontions of any single potentate. T
avoid bloody conflicts, which, might
terminate disastrously to all, it was
necessary for tho nations of Europe
to establish some principle which a
would acknowledge, and which should
decide (heir respective rights as be
tween themselves This principle,
suggested by the actual stale of things,
was “that discovery gave title to the
Government by whose subjects or by
whose, authority it was m <de against
all other European Governments,
which title might be consume, ated by
possession.”*
This principle, acknowledged by
all Europeans, because it was the
interest of all to acknowledge it, gave
to the nation making the discovery,
as its inevitable consequence, the
so'e right of acquirin' the soil, and
making settlements unit. It was an
exclusive principle, which shut out
the right of competition among those
who hod agreed to it; not one which
could annul the previous rights of
those who had not ag^oH to it. It
regulated the right given by discove
ry among theEuropean discoverers but
could not affect the rights of those
already in possession, either as abori
ginal occupants, or as occupants by
Virtue of a discovery made before
the memory of man. It gave the ex
clusive right to purchase, but did not
found that right on a denial of the
right of the posg tsor to sell.
The relation between the Euro
peans and the natives was determined
in each case bv tho particular Gov
eminent which asserted and could
maintain this pro-emptive privilege
in the particular place. Titer United
States succeeded to all the claims of
Great Britain, both territorial and
political; but no attempt, so far as is
known, has been made to enlarge
them. So far as they existed mere
ly in theory, or wore in thicr nature
only exclusive of the claims of other
European nations, they still retain
their original character, and remain
dormant. So far as they have been
practically exerted, they exist in fact,
are understood by both parties, are
asserted by the one, and admitted by
the other. ^
Soon after Great Britairnictermin-
ed on planting colonies in America,
the king granted charters to compa
nies of his subjects, who associated
for the purpp.se of carrying the views
of the, crown into effect, and of en
riching themselves The first of these
chnrtor* was made before possession
was taken of any part of the country.
They purport generally, to convey
W boater, 57~
the soil, from the Atlantic to the 1
South Sea. This sod was occupied
by numerous and Warlike nations, c
qually willing and able to defend
their possessions. The extravagant
and absurd ideaj that tho feeble set
tlements made on the sea coast, or
the companies under whom they were
mode acquired legitimate power by
them to govern the.people, or occu
py the lands from sea to sea, did not
enter the mind of any man. 'they
ero well understood to convey the
title, which, according ti the com
mon law of European sovereigns re
specting America, they might right
fully convey, and no more. This was
the exclusive right o( purchasing such
lands as the natives were willing to
sell. The crown could not be under
stood to grant what the crown did
not affect to claim, nor was it so un
deistood.
The power of making war is con
ferred by these charters on the colo
nies, but defensive war alone seems
to have been contemplated. In the
first charter to tho first and second
colonies, they arc empowered,.“for
their several defences to encounter,
expulsrt, repel, *.and resist, all per
sons who shall, without license,” at
tempt to inhabit “within the said pre
cincts and limits of the said several
colonics, or that shall enterprize, or
attempt any at time hereafter, the
least detriment or anoyance of the said
several colonics or plantations.”
The charter to Connecticut con
cludes a genera! power to make de
fensive war with these terms: “and
tensions unavoidably interfered with | “And we do further strictly enjoin
each other; though the discovery ol and require all persons whatever, win
one was admitted by all to exclude have, either wilfully or inadvertently
the claim of any other, the extent of seated themselves upon any lands
that discovery was the subject of un
ceasing contest. Bloody conflicts a-
rose between them, which gave im
portance and security to the neigh
boring nations. Fierce and warlike
in their character, they might be for
midable enemies, or affective friends.
Instead of rousing their resentments,
by asserting claims to their lands,
or to dominion over their persons,
their alliance was*ought by flatter
ing prolcssioiis, Mid purchased by rich
presents. The English, the French,
and the Spaniards, were equally
competitors for their friendship and
tlicir aid. Not v.elhacquainted with
the exact meaning of words, nor sup
posing it to he material whether they
were called the subjects, or the chil
dren of their father h Europe; lav
: sli in professions of fluty, and affec
tion, in return fer tic rich presehts
they received; so lo^g as their actu
al independanre was untouched, and
their right to self-povernment ac
knowledged, they ilere willing to
profess dependence on the Powt
which furnished supplies of winch
they were in absolute need, and re
strained dangerous intruders from en
tering tluir country| anil this was
probably the sense in which ihe term
was understood by them.
Certain it is, that our history fur
nishes no example, from the first set
tlement of our country, of any at
tempt, on the part of the crown, to
upon just causes to invade and destroy ; interefere with the internal affairs of
the natives, or other enemies of the
said colony.”
The same power, in the same
words, is conferred on the Govern
ment of Rhode Island.
This power to repel invasion, and,
upon just cause, to invade and destroy
the natives, authorizes offensive as
well as defensive war, but only “on
just cause.” The very terms imply
the existence of a country to be in
vaded, and of an enemy who has given
just cause of war.
The charter to William Penn con
tains the following recital: “and be
cause, in so remote a country, near
so many barbarous nations, the incur
sions, as well of the savages them
selves as of other enemies, pirates,
robbers, may probably be fear
ed, therefore we nave given,” &c.
The instrument then confers, the pow
er of war.
These barbarous nations whose in
cursions were feared, and to repel
whose incursions the power to make
war was given, were surely not con
sidered as tho subjects of Penn, or
occupying his lands during his pleas
ure.
The same clause is introduced
to iho charter to Lord Baltimore.
The charter to Georgia professes
to bo granted for the charitable pur
pose of enabling poor subjects to gain
a comfortable subsistnuce by culti
vating lands in tho American provin
ces, “at present waste and desolate.”
It recites, “and whereas our provin
ces in North America have been fre
quently ravaged by tbolndian enemies
more especially that of South Caroli
na, which, in the late war, by tho
neighboring savages, was laid waste
bj lire’and sword, and great numbers
of the English inhabitants miserably
massacred; & our loving subjects who
now inhabit there, by reason of the
smallness of their numbers, will, in
case of any new war, be exposed to
the like calamities, inasmuch as their
whole Southern frontier continueth
unsettled, and lietli open to the said
savages.”
These motives for planting the
new colony arc incompatible with
lofty ideas of granting the soil,
all its inhabitants, from sea to
They demonstrate the truth,
these grants asserted a title a-
gainst Europeans only, and were con
sidered ns blank paper, so far ns the
rights of the natives were concerned.
The power of war is given only for
defence, not for conquest.
The charters contain passages,
showing one of their objects to be the
civilization of the Indians, and their
conversion to Christianity—objects
to bo accomplished by conciliating
conduct, and good example; not by^x-
termination.
The actual state of things, and the
practice of European nations, on so
much of the American continent as
lies between the Mississippi and the
Atlantic, explain their claims and the
charters they granted. They pre-
the Indians, farther than 'o keep out
the agents of foreign powers, who. as
traders or otherwise, might seduce
them into foreign alliances. The
King purchased their lands when they
were wiilir.g to sell, at a price they
were willing to take;but never coer
ced a surretnlt r ol them.Hcjalso pur
chased their alliance and dependuncc
by subsidies; but never intruded into
the'interior ol their nffmis, ot inter
fered with their self-government, so
far as respected themselves only.
The general views ol Great Brit
ain, with regard to the Indians, were
detailed bp Mr. Stewart, superinten
dent of Indian affairs, in a speech dc
livered at Mrbile, in the presence ol
several persons of distinction, soon
after the pence id 1163. Towards
the conclusion lie says, “lastly, I in-
i forth'on that it is the King’s order
to nil hia .Gove'* 1 ®*" » n(l subjects to
within the countries above described,
or upon any other lauds which, no'
having been ceded to. or purchased
by us, are still reserved to the said
Indians, as aforesaid forthwith to re
move themselves from such settle
ments.”
\ proclamation, issued by Governor
Gage, in 1112. contains the following
passage: “Whereas many persons,
contrary to the positive orders of the
King, upon this subject, have under
taken to m. lie settlements beyond the
boundaries fixed by the treaties made
with *he Indian nations, which boun
daries ought to serve as a barrier
between the whites and the said na
tions;” particularly on theOuabache.
the proclamation orders such persons
to quit these countries without de-
Inv.
Such was the policy of Great Bri
tain towards the Indian nations inhab
iting the territory from which she ex
cluded all other Europeans; such her
claims, and such her practical expo
sition of the charters she had granted:
she considered them as nations capa
ble of maintaining the relations o>
peace and wa«; of governing them
selves, under her protection; and sue
made treaties with them, the obliga
tion of which she acknowledged.
This was the settled stile of things
when the war of our Revolution com
menced. The influence of our ene-
nnv was established; her resources
enable* her to keep up that influence;
and the colonists had much cause for
(be apprehension that the Indian na
lions would, as the allies of Great
Britain, add their arms toilers, This,
os was to bo expected, became an
5th. Th® fifth article rd|olatei|
rude between the cootracVmgpip^
n a manner entirely equal.
6th. The sixth article is' tfrititli
o peculiar attention, as it coaiiuJ
disclaimer of designs which w#r«.i
ihnt time, ascribed to the
States, by their enemies, and fig
the imputation Ol which Congrl
was the peculiarly anxious to freed
Government. It is in these wotA
“Whereas he enemies of the BnifJ
States have endeavored, by cv«
artifice in their power, to possess)
Indians in general with an opinioutig
it is tho design of the States aforeij
to extripate tho Indians, and
possession of their country: Toi
ate such false suggestion the Unilj
States do engage to guaranty to
aloresaid nation of Delawares,
their heirs, all their territorial rigid
in the fullest and most ample ntang
as it hath been bounded by fori
treaties, as long as the said Delays
nation shall abide by, and hold M
the chain of friendship now cute]
into.”
The parties further agree, |||
other tribes, friendly to the into
of the United States, may be invijl
to form a State, whereof the fij
ware nation shall be the head,
have a representation in Congre.ii.I
This treaty, in its language, anl
its provisions, is formed, as near!
may be, on the model of treatieill
tween the crowned heads of
rope.
The sixth article shows
't of groat 'solicitude to Congress.
the
and
sea.
that
treat the Indians with ju?«»ce and hu
manity, and to forbear ait roa '~-"
ments on (lie territories allotted to
ihern; accordingly all individuals are
prohibited from purchasing any ol
your lands; but as you know, that
your white brehtren cannot Iced you
you when you visit then, unless fou
give them grounds to plant, it is ex
peeled that you will cede lands to
the King for that purpose. But,
whenever you shall be pleased to
surrender any of your territories t<
his majesty, it must be done, for the
future,*nt a public meeting of your
nation, when the Governors of the
provinces, or the surperinte ndant
shall be present, and obtain the con
sent of all your people. The boun
daries of your hunting grounds will
be accurately fixed, and ro settlement
permitted to be made upon them.—
As jjpu may be assured that all trea
ties with you will be faithfully kept,
so it is expected that you also,
willbc careful strictly to observe
them.”
The proclamation issued by the
King of Great Biitain, in 1763, soon
after the ratification of the articles
of peace, forbids the governors of any
of the colonies to grant warrants of
survey; or pass patents upon any lands
whatever, which not having been ce
ded to, or purchased by ns (the King)
as aforesaid arc reserved to tho said
Indians, or a nr of them.
The proclamation proceeds, “and
we do further declare it to be our
royal will and pleasure, for the pres
ent, as aforesaid, to reserve, under
our sovereignly, protection, and do
minion, ton the use of the said Indians,
oil the lands and territories” “lying
to the westward of the sources of the
riverp which fall into the sea, from
the u-ast and northwest as aforesaid;
and we do hereby strictly forbid, on
pain of our displeasure, all our loving
subjects from making any purchases or
settlements whatever, or taking po-
session of any of the lands above re
served, without our special leave and
licence for that purpose first obtain
ed.”
Fai from advancing a claim to then
hrds or nss“rting any right of donna
ion m or them. Congress resolved,
“that the securing and preserving the
friendship of the Indian nations, ap
pears to he a subject of the utmost
moment to thp^e colonies.”
The early journals of Congress ex
hibit the most anxious desire to
ooneilinte tho Indian nations. Three
Indian departments were established;
and c mmtsiiouers appointed in each,
“to treat with the Indians ill their
respective departments, in the name
and on behalf of the united colonies,
in order to preserve pence and friend
ship with the said Indians, and to pie
vent their taking any part in the pres
ent commotions.”
me?! 6ltenuous exertions were
* * -•»« finnnt)i.o An
made to nrocml Ur
.... .... supplies on
prom* “ u A. ftd
w hich Indian friendship was su^j’
to depend, & every thing wh.ch might
excite hostility was avoided.
1 he first treaty was made with the
Delawares, in September, 1778.
The language of equality m which
it is drawn, evinces the temper with
which the ndgotiatiation was underta
ken, and iho opinion which then pre
vailed in the United States.
“1st. Thai all offences oracts of
hostility, by one or either of the con
tracting parties against tho o'her, he
mutually forgiven, and buried in the
depth of oblivion, never more to be
had in remembrance.
“2d. That a perpetual peace and
friendship shall, from ’ henceforth,
take place and subsist between the
contracting parties aforesaid, through
all succeeding generations; and it
either of the parties are engaged in a
just and necessary war, with any
other nation or nations, that then each
shall assist the other, in due propor
tion to their abilities, till their ene
mies are brought to reasonable terms
of accommodation,” &c.
3d. The third article stipulates,
among other things, a free passage fo.
tho American troops through tho
Delawaro nntiort, and engages that
they shall be furnished with provis
ions and other necessaries at their val
ue.
“4th. For tho better security of
the peace and friendship now entered
into by the contracting parties against
all infractions of the same by the
citizens of either party, to the pre
judice of the other, neither party
shall proceed to tho infliction of pun
ishments on the citizens of the other,
otherwise than by securing the offen
der or offenders, by imprisonment, or
any other competent means, till a fair
and impartial trial can be had
how (j
gress then treated the injurious
unmy of cherishing designs onfric
to the political and civil rights of
Indians.
During the war of the Rcvolulil
tbe Cherokecs took pait with
British. After its termination,
United, States, though dtsirouil
rugice, did not feel its necessity
strongly as while the war eontim
Their political situation being chi
ed, they nmht very well lM
advisable to Assume a higher ti
nod to impress on the Cherokeei
same respect for congress which
before fill for the King of Great
tain. This may account for the
gunge of the treaty of Hope
There is the more reason fWgui
mg that the- CherOk“ft chiefs
not very critical judges of the
a,cage, from the fact that every
makes his mark; no chief was <$|i
of signing his name. It is probi
the treaty was interpreted
them.
The treaty is introduced with
declaration, that “The comintsfiii
plenipotentiary of the United Si
.give peace to all the Chcrokeei
'••vc them into the favor and
J States of A
by
judges or juries of both parties, as
near ns-can be to the laws, customs, j shape of presents,
npd usages of the contracting parties, j from the same hand
and natural justice, &e.
l T*-w .
tcction <Jf ttie w‘
ca, on the following comtuiw*-
When the United States
peace, did they not also receive I
Wore not both parties desirous of[
If we consult the history of the
does it not inform us that the Ui
States ueie at least ns anxious to|
tain it as the Cherokees? We
ask, further: Did the Cherokees cd
to the seat of the American Govs
ment to solicit peace; or, did the|
meriean commissioners go to them
obtain it? The treaty w as made|
Hopewell, not at New York,
w ord “give,” then, has no ffeal tfflfj
tnnee attached to it.
The first and second articles stifl
late for the mutual restoration!
prisoners, and arc of course equal!
The third article acknowledges!
Cherokees to be under the protect!
ot the United States of America,j
of no other Power.
This stipulation is found rn hdj
treaties, generally. It was intro
cd into their treaties with Great i
tain; and may probably be fourdl
those with other European Po«1
Its origin may be traced tc the natj
of their conrexion with those P««4
and its true meaning is djscorn(d|
their relative situation.
The general law of European
ereigns, respecting their olain
America, limited the intercoms*!
Indians, in a great degree, to thef
liculnr potentate, whose ultinr
light of domain was acknowM
by tho others. r ttis was the gen^
slate of things in time of peace,
was sometimes changed in war.
consequence was, that their sopp
were derived ohieflv from lhart n*#
and their trade confined to it. 0®
indispensable to their comfort,; w ]
were
Wljat tvs
L«c« second pflgM