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federal ram
DOMESTIC.
OPINION -
Of JWr. Justice Johnson upon the Indian Ques
tion, in 18S1.
la pursuance of my practice in giving a n opinion
on ail constitutional questions, 1 must present niy
views on this With tne morality ol the case I
have tio concern; I am called upon to consider it as
a legal question.
The object of this bill is to claim the interposi
tion of this court, as the means of preventing the
Suite of Georgia, or the public functionaries of the
State of Georgia, from asserting certain rights and
powers over tne country and people of. the Cher
okee nation.
even the exercise of a positive (lutv. ‘
There is Then a great deal rif-good sense m the
rule laid down in the Nabob of Arcot’s case, to wit
Slates thejurisdictionover the Indian territory wilh r I more than put the question, whether the makers of
in their bounds*, could not possibly have entered I Uie CoasmuiioEutouiS have intenddi to-designate
into the contemplation of our government.-* Noth- them, wheu ^ising the epithets “foreign ” and
ing but express authority from .the States could “state r State; and foreign state, are used in I that as between sovereigns, breaches of treaty were
have justified such a policy, pursued with such a j contradistinction to each other. Wefhad then just not breaches of contract cognizable in a court of
view. I o pursue tins subject a little more'cate- emerged, ourseLves, from a situationxjaving much] justice; independent of the general principle that
*■ -Stronger claims than the Indians; for admission into lor their political acts Stales were not amenable
the family of nations; and yet we were Wt admit- .to tribunals of justice.
ted until we had declared ourselves no longer pro- There is yet another view of this subject,, as electors for members oi t;on^o
vincefc but States, and shown some‘earnesttees, which forbids-our taking jurisdiction. There is a ! ! ute
ami capacity in asserting our claim
> cliised. Cap it thou be supposed '*
gorioally.
If these Indians are to be called a State; then
1. By whom are they acknowledgeiUSs^such?
2. When did they become so?
3. And what are the attributes by which they
are identified vvitli other States.
A s to the first question; it.is clear, that as a State those terms, we meant to include
they are known to nobody on earth, but ourselves, j those who were admitted into the community of
nations, of whom most notoriously the Indians
were no part:
The argument is, that they were States; and if
>1. StntPS of thp 1 Tnmn mnef lui (!n>oi.rti Stnttie
if to us; how thdn can they be said to be recogniz
ed gs a member of tlie community of nations?
Would anv nation >un earth treat with them as
It is not enough, in order to come before this __ ^
court for" relief, tliat a case of inquiry, or of cause such.'' Suppose then they occupied the banks of not States of the Union, must be foreign States,
to apprehend injury, should L>e made out. Besides ; the Mississippi or the sea coast of Florida, part But I think it very clear that the Constitution nei-
h lving a cause of aci.iapfthe complainant must bring of which in tact the Semino! *s now occupy, & they i ther speaks of them as States or foreign states, but
hi o f within that-description of parties, who J had declared war and issued letters of marque and as just what they were, Indian tribes; an anomaly
alone are permitted, under the Constitution, to j reprisal against us or Great Britain, would their j unknown to the books that treai o& states, and r
bring an original suit to th£ court. j commissions be respected? If known as a State,; which the law of nations would regard as nothing {other court and form ofaction, or another branch
of jurisprudence * 'ri
ll cannot take leave of the case without one .re
in a savage
in that sec-
w r to regulate
the Union, or a foreign state. In this case, the j just what territory we choose to allot them. And commerce between the United States and foreign
av-r.-neat is,' tiiajl the complainant is a foreign j almost every attribute of sovereignty is renoun- , nations and the Indian tribes,
slate. \ it-d by them in tliat very treaty. They acknowl-i The language must be applied in one of three
i’wo preliminary questioas-then present them- ! edge themselves to he under tlie sole and exclusive senses; eitiier in that of the law of nations, or of the
! protection of the' United States. They receive the vernacular use, or that of the constitution. In the
‘ uti Ut i” :.i.u ou it- tu UJie ivi/ui «• j ^ u nuvu u uo a uiau. ^ ian vu
It is e-isetitiaJ la such suit tliat a State of tliis Un-1 it is by us and us atone; and what are the proofs?! more than wandering hordes, held together only
* should be a party; so says tlie second member t The treaty of Hopewell does not even give them a ’ by ties of blood a7id habit, and having neither laws
selves:
d
-
inhabitants, (besides slav
Stales, are not admitted t
He speaks of this, as ay
which they, as sovereif^
of Course, can alter at j
says^on whiuli the right-aT _ . ^ .
haps the same m any two * i* 1 **# 1 ,'-
that' the States can arbitrarily. fi* Ihe* quanta:
Have they not therefore tlie right toqufoiiy tut
electors for members of Congrdlpf is-ftn
coming into, the i
to surxetiuer, but"
arfejKIle of the Ccr.sut J
they have not the righl
otljyr respect ? Suppor*^
that Mushaiataba, the Indian 'ClfijcJ wlip^rticitd a: a
late election in Mississippi, (whp^ejaws had been ex
tended over his tribe) had been elected to Gongrdfcs i ri
der the laws of that State. Coaid the representative,
branch of Congress, (which is" the “judge oi the edi
tions, returns and qualification* of its own members,,’)
have determined, that' hjs election was void, becaiu tj
Mississippi had not the right to $xifnd her Taws over
his tribe—because, (according to Chief Justice Mar
shall) tlie territory on which he lived was “entirely se
parate from that of the Stale,” which he was chosen to
represent, and therefore, being wo part of a*Slate, w;«? .
not emit led to be represented in Congress—and because
rk upon the leading argument, on which the ex- i that territory was subject to the intercourse loro of tInc
ise of jurisdiction here over cases occurring in ! United States amino other l Tins places the quesaon uf
a strong light: and*we cannot pCrceive, that any oi.ri r.
mean the act of 1802, which makes it penal to vio
late the Indian territory.
The infraction of this law is in effect the burden
of cpnipfoint. What then in fact is this bill, but a
hill to obtain an injunction against the commission
of crimes? If their territory has been trespassed
upon against the provisions of that act, no law of
Georgia could repeal that aql or justify the viola
tion of its provisions. And the remedy lies in an-
mark
ercise of jurisdiction here ^over case
the Indian country, lias been claimed for the com
plainant. Which Was, that the United Slates in
fact, exercised jurisdiction over it by meansof this
and other acts, to punish offences 'confitted there*
But this argument cannot hear the test of princi
ple. . For the jurisdiction of a country maybe ex
ercised over her citizens wherever they are, in
right, of their allegiance; as it has been in the in
offences committed against the
both under the constitution &.
1. Is the complainant aforeign state inthe sense of territory allotted to them as a boon, from a master firth, although it means any State not subject to
i. Constitution? • or conqueror; the right of punishing intruders into our laws, yet it must be a State and not a hunter _ _
i - tin- case presented in the bill one of judicial j that terrritory is conceded, not asserted as a right; i horde: in the vernacular, it would not be applied ' stance of punishing
cognizance? \ and the sole and exclusive right of regulating their to a people within our limits and at. our very doors: j Indians. And, also
Until these questions are disposed of, we have trade and managing all their affairs in such man- , and in the constitution the two epithets are used in J the treaty of Hopew’i
wo right to look into the nature of the controversy tier as the government of the United States shall j direct contradistinction. , The latter words were I tends Jo. regulation their trade, necessarily within
any farther than is n >cessary to determine them.— think proper; amounting in terms to a relinquish- unnecessary, if the first included the Indian tribes.! their limits. But Bus cannot sanction the" exercise^
Tne first of the questions necessarily resolves itself nient of all power, legislative, executive and judi- There is no ambiguity, though taken literally; and I of jurisdiction beyond tlie policy of the acts them-
iuio tw.o. ^ ’ cial to the United States, is yielded in the ninth! if there were, fuels and circumstances altogether ! selves • which are altogether penal in their nrovis-
1. Are the Cherokees a Stake? - article: remove it. - Si nn <j ’ ° 1 1
2. V; e they a foreign State? ! It i* true, that the twelfth article gives power to
1. I cannot but think that there are strong rea- the Indians to send a deputy to Congress; but
non', for doubting tne applicability of the epithet nuch deputy, though dignified by the name, was
State, lo a people so low in the grade of organized nothing and could he nothing but an agent, such
society as onr Indian tribes most generally are. I as any other company might he represented by.
wouid not here ue understood as speaking of the It cannot..be supposedjthat the Was to lie recognized
C tgrokees under their present form of government; as a minislor, or to sit in the Congress as a dele.
\v lic'i certainly Must be classed afnong the most gate. There is nothing express and noihing.iih-
approved forms of civil government. Whether it plied,-that would clothe him with the attributes of
c tn be vet. sail! to have received the consistency either of these characters. As to a seat among
which enliiles that people to admisson into the the delegates, it could not be granted to him.
family of nations is, I conceive, yet to be determiu- Tiiere is one consequence that would necessarily
rd by tne Executive of these States. Until then, flow from the recognition of this people-as a State,
I must think that we cannot recognize it as an ex- which of itself must operate greatly against its ad-
isiing State, under any other character than that mission.
which it has maintained ifitkerto as oue ofiiie in- Wnere is the rule to stop? Must every petty
diau tribes or nations. v . kraal of Indians, designating themselves a tribe or
There are great difficulties hanging over the nation, and having a few hundred ncr£s of [and to
question, whether they can be considered as States hunt on exclusively, be recognized as a State? We
under the judiciary article of-the Constitution. 1. should indeed force into the family of nations, a
Tuev never have been recognized as holding so- very numerous and very heterogeneous progeny,
verrigntv over the territory they occupy. It is in Tiie Catawbas, having indeed a few more acres
vam now to iaqureinto the sufficiency of the prin- than the republic of San Marino, hut consisting
ciple, that discovery gave the right *»f dominion only.of eighty or an hundred polls, would then be
ovv* the country discovered.' When the populous j admitted to the same dignify. They still claim in-
a-i 1 civilized nations beyond the Cape of Good dependenec, and actually execute their own penal
Hope were visited, the right of discovery was laws, such as they are, even to the punishment of
mu le iho ground of an exclusive right to tlieir ; death: and have recently done so. We have roar.y
t ad.:, an l contiaed to teat limit. When-the eas- ancient treaties wirh them; and no nation has been
tern coast ofitms contiheni, and especially the part i more distinctly recognized, as far as such recagni-
w ■ inhabit, was discovered, finding it occupied by ( tion can operate lo communicate the character ofa
a ra'Te uf a.n ers, connecte d in society hv scarcely a
i ions.
I vote lor rejecting the motion.
State.
But secondly, at what time did this people acquire
the character ofa State?
Cei tainlv not bv the treaty of Hopewell; for eve
ry provision of that treaty operates to strip it of
_ its sovereign attributes; and nothing subsequent
J and exercised by tlie European discoverers.j adds any tiling to that treaty, except using the
From that .-muzee we derive our rights* and there I word nation instead of Indians. And as to that
is not an iiWunv of a cession of land from an In- article in the treaty of Holston, and repeated in the
-linn nitri c., in which the right of sovereignty is
semblance ot u ganic government; the right tvas
extended to the absolute appropriation of the terri-
to*v: tlie annexation ofit to the domain of the
d icovere-. It ea.i i >t be questiiaed tiiat the rigiit
of -overeignrv, as well as soil, vfas notoriously as-
lil lit
i of the matter ceded.
It
m-iy l>e
Sllg-o
fo-l
ii it th-ey were imiffirmly
o.is of i
lid “
hO'lf
i.ihabitants; and, tliere-
fir/-,
words c
n i to
make a cession of sov-
eroi:
uiK tj.'i
0 UDI
;c-ssa
cy. Tills; however, is not
u fu
1 .a-twe
■, since
soil,
as well as people, is the
obV-c: ot’sov
ereig-
n
actio
n, and may be ceded with
or tv
ithout i
ie so 1
re
reiot
ay, or may ho ceded with
tiie t
xpress
stipu
: ^
ion.
that the inhabitants shall
rein.
)vl-= In
ail t!
ie
ce.-s
on-- to us from thcciviliz-
ed S
tales ol
i be
old
word, and our transfers
anio
ours;
•Ives,
H
tiiou
oh of the sanur property.
uu r
r tne s::
:ne c
r C
Luns:
inces, and even when oc-
cup;
byiii
C-SO V
■r
v Im
iaiiS the express cession of
sove
reiguty
is to
>e
limn
d.
In the very treaty of II -p' x ell, the
evidence of which is ap>;a:i-.l to as
proof of the existence of this supposed
tjie Commissioners of tlie United $u
ing themselves in these te: n;-:—
language or
the leadin
treaty of Teliico, which guaranties to them their
territory, since both those treaties relejt to and con
firm the treaty of Hopewell; on what j>rinciple can
it be contended that the guarantee can go fartiier
than to secure to them tliat right over the territory,
v hjch is conceded by the Hopewell treaty; which
interest is only that of Hunting grounds. The gen
eral policy, ofiiie United Slates, which always look
ed to thtW Indian lands as a certain future acquisi
tion, not less than the express words of the treaty
of Hopewell, must so d< cide the question.
If they were not regarded as one of the family of
nations at the time oi that treatv, even though at
tiiat time first subdued and stripped of the attri
butes ofa State, it is clear that, to be regarded
now as a State, they must have resumed their rank
among nations at some subsequent period. Bulat
what subsequent period? Certainly hv no decisive
tie, wafind i act until they organized themselves recently into a
lutes express- j government; and i have before remarked that, un-
e Commission-! til expressly recognized by the executive under
ers Plenipotentiary of the United Slates give peace j that form of government, we cannot recognize any
to all the Clieroket-Sj and receive 'a an imo the fa- j change in their form of existence. Others have a
vor and promotion of i tu United Slates cn ihefol-' fight to lie consulted on the admission of new States
into the national family. When this country was
first appropnatcd or conquered by the crown of
Great Britain, they certainly were not known as
members ol i he community of nations; and if they
had been, Great linlain from that time blotted
them bom among tlie race of sovereigns. From
tint time Great Britain considered them as her
lowing eonditions." This is ceminiy the language
of sovereigns and conquerors, and -not the*aJdress
of equals to equals. And again, when designating
tiie country they are to'be confined to, conqn .ring
the very territory which is the subject of this bill,
they sav, “Art. 4. The' boiaidaep allotted to the
Cherokees for their hunting grounds"' shall be -as
FEDERAL UNION.
Xli.lXVUtllU.E, APK1I. 1 S.i-z.
fHE CHEROK.EL CASE.— »* e had prepaied a
brief argument upon the want of jurisdiction in the Su
preme Court under ..tie 1UL amendment of the Cor.so
lution of the United Stales. But as that argument must
But iiad I been sitting alone in this cause, I should
have-waived the consideration of personal des
cription altogether;' and put tny rejection of this
motion upon the nature of the claim set up, exclu
sively.
,1 cannot entertain a doubt that it is one of a
political character altogether, and wholly unfit for
tlie cognizance of a judicial tribunal. There is no
possible view of the subject, tliat I can percei ve, in
which a court of justice can take jurisdiction of the
question made in the bill. The substance of its al
legations may he thus set out.
That ihc complainants have been from lime im
memorial lords of the soil thev occupy. That the
limits by which they hold it|have been so emnly I
designated and secured to them by treaty and by!
iaws of tiie United States. That within those
limits they have rightfully exercised unlimited ju
risdiction, passing their own laws and administer- j
ing justice in their own way. That in violation of j . . . T • ,
tlieir just so secured to then., the^tuteol | u ,;, r j' prc£c „,. I„ ;l,c
Crcoigia has passed laws, authorizing and recjiur- j we are j es i r0 ns of shewine:, in a calm and delirjeraie
ing the executive and judicial powers of the Slate j maimer> f j ie petitions upoifwlb.-i. Georgia rests ter her
to enter their territory and put down their public justification, in refusing a “ digitifuu submission” to the
functionaries. That in pursuance of those laws tlie j judgment of the Supreme Court—we ask the especial
functionaries of Georgia have entered their territo- j attention of the people ofiiie United States, to our views
rj r , with an armed f
legislative, executiv
the government of me inuians. t «. , , e
What does this series of allegationa exliil.it hut a I ' V e cannot ^ a, *y 1110tie cf cvadiri S ,tB
state of war, and the fact of invasion ? They allege | C °The Stclarae, of the 3d division of tlie 2d section
themselves to .ie a sovereign independent State, an( j j s t. Article of the Constitution, reads thus—“Rej -
and set out thatanother sovereign State has, by its resentatives and direct taxes shall be apportioned among
laws, its functionaries, and its armed force, invaded j the several States which may be ineitided within this
ilieir Slate and put down their authority. This is • Union, according to tlieir respective numbers, which shall
war in fact; though not being declared with the j he determ : ned by adding to the whole number office
usual solemnities, it mav perhaps he called war in j persons, including those bound to service fora teem of
disguise. And the contest is distinctly a contest for and exchuUng Indians nattered, three fifths of all
j. other i-tersons.” AV hat did the framers ot uie Constitu-
empire—It is not a case of meum ana tuum in the;.- 0 ,ri . . . , ,
.. . , T rition here mean, and the States that adopted it under-
judicial. but m the political sense. Not an appeal s t ;in( y Gy the expression—“elfrhiding Indians not taxed?’'’
to aws, but. to force. A cas? inwhich a sovereign A’/hen the Constitution was alxiut to be adopted, there
undertakes to assert his right upon his sovereign was great difficulty in adjusting the basis and ratio ol
responsibility; to rigiit himself, and not to appeal to representation and taxation. They greatest contention
than a elear negative cun be given to oarinterrogaiShg
Yet, if Chief Justice Marshall be correct in his nohdifSj;
Congress would have tliiti tremendous, this danscious,
this unconstitutional power over the sovereignty of Ivri—
sissippi. Dees not this slicwv tlie monstrous absurdity
of the decision ?
The manner in which’ the Indians are alluded to in thiS
article, in additiou to the able opinion of Judge Join ->
son to Iac found in our columns to-day, on that clause in-
which the Indian tribes are-put in contraiiis! .notion,,
with foreign nations on the subject of regulating ccm-
mei-Ce, shews clearly that the framers of the Constitu
tion did not regard them as foreign imlevendent nations.
And tliis upsets the whole ground work ol the late opiui-
ion of the Supreme Court.
We therefore conclude, that the Constitution no where
authorises the decision made by the Court—that ilie ex
pression:—“excluding Indians not taxed”—recognizes be
power to-ter, and was so clearly understood by the
Slates, at tlie adoption of the Constitution—that taxa
tion is legislation, ami the exercise of a right of sove
reignty——-tha therefore the Legislatures cf the res
pective Slates htve ihe right to legislate for Indian in
habitants in all things, m which they can legislate lbr
other inhabitants. If our recollection of the early hi-,
tory of the States serve-us, the Indians were taxed in
some of them. If they were taxed at the time i t tlie
adoption of the Constitution, this provision-was apj.fo d
to tjie actual state of things, and settles the. question fr i-
ever in our favor. If they had not been taxed, these
words clearly recognise the power to tax them. If rhis
be not true, then this clause— 1 “Excluding Indians net Uup
ed”—is unmeaning mid augatory.
LUl^lU imvc t-lUUAU lllt ll ^ ... ---
fence, and put down all powers j upon another clause of tlie Constitution, N w hich w e do
ve and indicia! exercised under ! not reeollt-ct to have seen brought to the elucidation of
rthe Indians ’ j this absorbing question. -The argnnjrnt is, toourmirids,
SLAriTDER MOST FOUL.—There never was a
grosser libel upon a generous, noWeheitrted people, than
that, contained in the subjoined article from the corres-
pendent of the Journal of Commerce—that there is not
a State “sooth cf the Potomac, friendly to the Constitution- cf
the United States.” The south will cling to the l hion—
but will not Le dragooned into Notkem “ notions.” Av ks
the Hartford Convention—was Governor Strong’s resis-
hmee of the constitutional orders of flio'Presidi nt fini n g
the last war, “sctrt/i of the Potomac7” J Jut flay ti>.
the Union “defactoV % Did the South and Writ call up
on-the 1'resident to order out the mriitary jont to retro
Massachusetts into obedience—‘and threaten m rinqsn h
Mr. Madison Sir not doing it?—Let the North oppose
constitutional orders—the South is sutisfiiti u. net ijtiuwg
to unconstitutional “assumptions.”
“I have* heard it graveiy asserted, and that frequently
during this session of Congress, .that there is no one
ioal community, South of the Potomac, friend iy to tlie
Constitution of the United States; and that there is fmie
doubt that the crisis has arrived which wifi deyejcpe tliis
awlul'truth, in an actual dissolution of the G« ventn tv t
before the 4th March next. I do not know what is in 1,.
the result; but lei tlie Execmive Department decline lo
enforce the judgment and prooess-of the Supreme. Court,
and the government de judo has ceased.”—Journal of
Commerce,
anv arbilcrhut the sword, lor the justice of his arose from our slave population. That, was eventually
cause. If the State of Maine were to extend its ! '•'•mj romised. The Indians also presented
subject
adjustment. But as u*-:u!y all the States, were
e or less—some Northen btates largely—interest-
e<i in them, the same contention did not arise ; and
i) - oi n i f \ | the question was easily adjusted, by calculating in the
case (4 Bro. C la. Ca. anii 1 and - V esev, Ji:n,) a , estimate, Indians that had been, or might be taxed, and
case of a political character,not one half so strongly { excluding those “net taxed.” JNone of the Situes were
laws over the province of New Brunswick, and * 11
send its magistrates to carry them into effect, it | ,n<
would he a parallel case. In the Nabob of Arcot’s
marked ns this, the courts of Great Britain refused
to take jurisdiction, because it had its origan in trea
ties entered into between sovereign seiUs.: a case
in which the appeal is to tlie sword and to Almighty
justice, and not to courts of law or equity. In the
exercise of sovereign right, the sovereign is sole ar
biter of his own justice. The penalty of wrong L
war anil subjugation.
But there is sti'i another ground in this case,
which alone would have prevented me from assu
ming jurisdiction : and that is the utter impossibili-
partieularly interested in rejecting them, and'most of
them were, in admitting them. Hence there was a gen
eral acquiescence among the States, and . a clear under
standing, that they .possessed the right of Indian taxa
tion. As this anomalous population had not been wad-
mi tied by many of the States, to the rights of citizens,
it was provided, that those remaining “not laxtd,” should
give no additional weight in die Federal Councils. AVe
can account for the introduction of this prohibitory ex
pression upon no oilier hypothesis. Hence it appears
conclusive, dial, the Constitution in tliis particular, re
cognized the power in the States respectively of taxing
bed. Certainly this is tiie language I sub; cis whenever she chose! to claim their ollegi-
therem de^cri
of concession on our part, not theirs; and when the
fall bearing amt effect of those words, “lor their
hunting grounds, ” Ls considered, it is iihic ft to
think that they were tiien re.ee led as a State, or
even intended to be so regarded. It is clear that
ance; and their coiinirv as hers, both in soil and
ov r-iguTy. All tiie forbearance exercised towards
1 them was considered ns voluntary; ami as tlieir
! trade was ino e valuable to her than their territo
ry, for that reason, and not from any supposed
k was intended to give them no other rights over warn oi right to extend lierlawsover them, did she
tiie territory than what were needed bv a race of! abstain from doing so.
ty of doing justice, at least even handed justice, I Indians. And if they can tax them, they can leg-
bet ween 1 lie parties. As to restoring the complainant j k fatc over °'* lC1 ' respects.
. . ... i 1 Farther: bv the 1st division of tlie same section and
to the exercise of jurisdiction, it wu! he seen at once) . ... .? . . • T , .. T>
. . . J . . .. A , 1 articleot the Constitution—-“7 nc House of Kepresenta-
lliat Unit is no case lor the action ot a court ; and I t ; ves ( n f Congress) shall be composed of persons cho
ns to quieting him in posession ol the soil, what, is j j. Rn cver y second year, bv the people clVthe several
the case on which the complainant would have this j States; and the electors in each State shall have the
court to act? Pother the Cherokee nation a He a j qualifications requisite for electors of the most numerous
foreign state,or they are not. If they are not, then, branch of the Slate Legislature”—In fewer words—
they cannot come here, and if they are, then how tliosfe who are entitled by rim State laws to vo<e for lie-
can we extend our jurisdiction into their country. I presentatives in the State Legislature, have the right to
We are told that we can act mx>n the nublic func- | vote for Representatives in Congress. .“Reqitisite quail-
.■ ■ .. • 1 • . * .» i- \ ficahons” means qualifications required by tlie Slates.
t ^^'P U *5 tale<rf6,w ^V”^ i y ,e ! llm .“lWCo m3 ^.«,y then. .Adi«.«h the Stale,,
who sliall be entitled to vote for Representatives to tlie
The following firm tl e EveningT< si, while err-ir n w -
ing on the - publication of sentiments ecualiy oik r? ve h»
the National Gazette, is in much better spirit. Ti c ia-f,
seems to be, as suggested, tl at a eerifrii < lass of
cians think they can safely srert ?a!e r; rn the. effectm*
of the S«u*]-t for the Federal Union—and that bv ihr a -
ening us-w th force, wc shall give up our tights. AVe
iiope the experiment-will never be made.
“It ill becomes an American Journa! to speak tl
ligh’ly of the Union. Even if the Northern Slates, by
the loss of South Carolina*, did not lose one cf their I t
customers, even if our commercial cities weie not c«-
pnvedof a considerable source of their weab.h—r r it?, is
the example of disobedience to the laws cf the Union
nothing, is the destruefionof the strong hand of opinion
that held tbs several parts of the I iron together, r.rtb-
ing, is the danger thart the other stages of the South suf
fering mfder the same e vils will make con.mun cau. c
with South Caro!in >,"nothint ?
The error of many on this subjept* Fes in imagining
that our government is a government of force ii ad of
a government of opinion. The moment that our gov
ernment ceases to he supported l.v the force o- rp irin
in any considerable portion of its territory, that n < n < nt
it is at an end. It is a dangerous experiment that sor. o
politicians are making to discover the utmost limit of
this force of opinion; and of what point, i* v. jil erase to
support the execution of the laws in a hu-ge part ot the
Union. Itiswors, it is a flagitious experiment; ador
er unnecessarily and wantonly incurred.”—Lvcniag
Post.
of the nation. But suppose that Georgia should
file a cross bill, as she certainly may, if we can en
tertain jurisdiction in this case ; and should in her
State Legislature ? Most clearly not. Suppose, then,
that any State, having Indians within its limits, should
hunters; and it is not easy to see- how their ad-
AnJ. tin ally, by what attributes is the Cherokee !
n identified
bill claim to he put in possession of the whole Indi- j give them the right of suffrage; as Mississippi has done,
an country; and we should decide in her favor ;{ The moment the right of suffrage is bestowed—(the
how is that decree to he carried into effect? Say J highest right of freedom)—the Indian, (being a native,
as to
soil; as to jurisdiction it is not even to he con- not subject fo the laws of naturalization,) becomes a ci-
van^ewent beyond that state of society could ever ! nation idenf.ti'd with other Slates? j sidy red. From tne complainant’s own showing, we 1 t ' ze " sucf l State > ar, d ot the United States—entitled
been promoted, or, perl,tips, rennitte.1, con- i Tne right otWeteijpity tvns expressly ttssttm-Uuld not do justice between the pnrties. = Nor
jsiatehtlv with the unquestioned rights of the States, I ed by Great Biitaiimver their country a i the first j must I be considered as admiring that this court
*)•• Unfted S’ates over the-terrikiry within tlieir ! takin" possession ofit, and i.as never since lieen j could even upon the other alternative exercise a ju-
Umits. To* pre-emptive right, and exclusive right recognized as in them, otherwise than as dependent rtsdiction over the persons, respecting lands under
qf comuest in ease of war, was never questioned upoit the will of a superior. . j the jurisdiction of a foreign nation. I know of no
#
..xist in the States, which circuqiscribed the 1 The right of legislation is in terms conceded to
liole or anv part of the Indian grounds or territo- • Congress by :he treaty of Hopewell, \vhenever they
ry. To Lave taken it from tla-in by direct means : choose to exercise t. And tlie right of soil is held by
would have been a palpable violation of their rights. E;e feeble tenure of hunting grounds, and ackhowl-
B it every advance, from the hunter state to a j edged on all hands, subject to a restriction to sell to
morefixed state of society, must have a tendency jno one but the United States, and for no use but
to impair that pre-enative right, and ultimately to j that of Georgia. ,
destroy it altoireiher, Ih>i1i by increasing the Indian I Tiiey have, in Europe, sovereign &. demi-sove-
population, and by attaching them firmly to the
j have, in Europe, sovereign
rcicn Stales, and jStatcs of doubtful sovereigntt
soil. The hunter state bore within itself the prom
ise of vacating the territory, because when game
ceased, tlie hunter would go elsewhere to seek it.
But a moye fixed state of society would amount
to a permanent destn c non of the hope, and, of con
sequence, of the beneficial character of the pre-
emotivc right.
But it is said, that we have extended to them
But this State, iiit. be a State, is stiil a grade be
low them all; for not to lie abie to alienate without
permission of tiie Remainder-man or loid, places
them in a state of feudal dependence.
However, I will enlarge nq more upon this point;
because I believe, inontfview and in one only, if at
all, they are or may be deemed a State, though not
a sovereign State, at least while they occupy a
the-iueans and inducement, to become agricultural i country within our limits. Their .condition is
ami civilized. It is true; ami the immediate object I something like that of the Israelites, when inhabit-
of that policy was so obvious as probably to have * mg the deserts. Though without land Jhat they
intercepted the view of ulterior consequences. In- can cai! theirs in the sense of property, their right
d r *'pendentlv of the general influence of humanity, I of personal self-government lias never been taken
Xh( •se pc.mie were restless, warlike and signally j from them; and such a form of government may
cruel in tbe»r irruptions during the revolution. Tlie [exist, though the land occupied be in fact Unit of
pol’cv, therefore, of enticing them to the arts of j another. 'J'he right to expel them may exist in
p^te', and t.d those improvements which War might j that other,’but the alternative of departing and"
lay desolate, was obvious; and it was wise to pre- j retaining the right of self-government, may existin
ry.i re them for what was probably then emitemplat- j them. And such they certainly do possess; it has
e i, to wif, to ineor])or ite them in time into our res-
peqtiv.: gover>mvtiis: a ptfiicv which thefr invet-
erstte habits and de6p seated enmity has altogether
baffled I3ut tiie project of ultimately organizing
them into Stakes,, within die limits of those S’ates
lud not ceded 'c-r should i.cl cede to V.
never been questioned, nor any attempt made af.
subjugating them as a people, or restraining.their
|.- sonal liberty except as to their land ami trade:
But in no sense can they be deemed a foreign
state, under the judiciary article.
\l does seem enneccssary cn this point to do
such instance, in Penn vs. Lui*d Baltimore, the
persons were in England and the land within the
king’s dominions, though in America.
There is still another view in which the cause
or action may be considered in regard to its politic
al nature. The .United Srates finding themselves
involved in conflicting treaties, or at Ica^t in two
treaties respecting the same propety, under which
two parties assert conflicting claims; one of the
parties, putting itself upon its sovereign right, pass
es laws which in effect declare the laws &. treaties
und(?r which the other party claims, null and void.
It proceeds to carry into effect those laws by
means of physical force; and the other party ap
peals to the executive department for protection.
Being disappointed there, the party appeals fo this
court, indirectly to compel the executive to pursue
a course of policy, which his sense of duty or ideas
ol thc lavv may indicate should not he. pursued.—
That is, to declare Avar against a State, or to use
the public force to repel the force and resist the laws
ofa State, when his judgement tells him, ihe evils
to grow out of such a course may he incalcula
ble.
What these people may have a right to claim of
(he executive power is one thing ; whether, we are
to he^the instruments to compel another branch
of the government to makegood the stipulations of j
treaties, is a very different question. Courts of
justice are properly’excluded from all cousidera-j
lions of policy, and therefore are very unfit instrii- j [.
equally liable to the penalties of the laws of the State.
Wc are not left without the opinions of the “conscript
fathers” of the Revolution upon this head, cotemporani-
ous with the adoption of the Federal Constitution. In
tlie “Federalist”—written by Madison, Hamilton and
Jay, a democrat and two federalists in concert and con
junction—with the express object of reconciling the peo
ple to the Constitut ion, which had been framed by the*
Convention—Air. Jay, in commenting on this very sec-'
tion, says:
“ It is a fundamental principle of the proposed Consti
tution, that as the aggregate number of representatives
allotted to tlie several States, is to be determined by a
federal rule, founded on the aggregate number of ini ab-
itants ;”so the right of choosing this allotted number in
each. State, is to be exercised by such part of tlie inhabi
tants, as'tlie State itself may designate. Tlie qualifica
tions on which the right of suffrage depend, are not per-
liaps the same in any two Slates. In some ol theSiat.es,
the difference is very material. In every State, a cer
tain proportion of inhabitants, arc deprived of this right
by the const/:ution of the State, who will be included
in the census by which the federal constitution appor
tions the representatives. In this point of view, the
southern states might retort the complaint, by insisting,
that the principle laid down by the convent ion, requir
ed that no regard should be had lo the policy ot parti
cular states towards their own inhabitants; and cunse-
quen'ly, that the slaves, as inhabitants, should have
been admitted into the census according to their full
number, in like manner with other inhabitants, who, by
the. policy of other States, are not admitted to all the
rights of citizens. A rigorous adherence, however, to
tins principle, is waved by those, who would be trainers
by it. All that they ask is, that equal moderation be
shown on all sides.” _
Now let it be remembered that Mr. .Toy was a distin
guished member of the Federal party, ’vhieh held with
constructive powers. "V et he hete n a’.ntams, a.? a rca-
wl-.v the States Should iVt reject the Constitution.
FOR TIIE FEDERAL UNION.
Messrs. Editors.—In the-columns "of the Gen-gin Jour
nal, we are presented wiili the great and even exciting
question of retrenchment in regard ,io the number of the
legislative body. Howeverjilausihle may be the argu
ments in its favor ^however strong the demand ot ti e
convictions upon which it may be founded, I shall ven
ture to place the subject before the people iff some asp c s
not hitherto presented, which m.ay-v ith tlie moral ai d
reflecting part of them, cause at least a more thorough
examination into the true principles by v hirh the ques
tion shall be determined. As far.as can be gathered from
the written or verbal .remarks of the opponents of the
existing system, they rely upon four ] oporitions, whirl-',
though not altogether distinct from each other, may in
some respects require, a separate investigation. First :
That the assembly is too ni.faei*us toftbe exercise of
its functions with order and despatch. Second: That
in consequence-of its number it is unnecessarily burthen-
some to the public treasury. Thirdly : That territory
is represented and not population. Fourthly : Inequal
ity between the more and less populous counties wyi>-
tributine, by way of taxes,- to Use expenses of ' e rt"' *-
tion. To the first allegation, it may be answered, >nat
the precise point, in this respect, where wisdom ends anu
folly begins, is difficult to be ascertained, wnd the ques
tion has accordingly divided mankind mto the various
forms, from despotism to anarchy, which govern ihe no
tions of the earth. In those where a single person is
absolute, the. structure of the government would seem
to imply, that he is possessed Ol all the requisite qualifi
cations for sovereignty; to-wit: wisdom, goodness, and
power. Such an inference being, however, contradicted
not only by common reason, but in general by the hist' -
ry of those who have fallen victims to ils delusion, has
induced mankind ip tlieir progressive state I© multiply
the depositories of power as a safeguard- against en
croachments on their rights, and as better adapted to ad«
vance ,their political happiness. Anterior to the appl:»
cation of the democratic or representative principle—
from the days of remote antiquity the maxim has exis
ted, “in the multitude of counsel there is safety.” Aml-
although -tins axiom of Eing Solomon tlie wise,,may have
lost much of the dignity of truth fcy a w rupg applica
tion, it nevertheless remains in »t| eminent degree at the.
foundation of republican institutions. AYl-ere ihci-e in
stitutions first broke in like a flood of gfoiyv upon the
world—when the safety of the people became the sv.«
prenie law—then it was that crowded, and if you please,
tumultuous assemblies pronounced the laws bv which
themselves .should be governed. The .rioter the disor
ders, and tho crimes which not unfveqoentl
assemblies, have fiiffiished what tin *
cals to the advocates ef Mcnapi
ild or.d daugepou* Ut^jlj^jpfccoagtiiial in
jhaff tko rule cf fovaMBKWbepbu who
‘ned those
pliant
result-