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vifAfOH A'p; AGB&eWfcimHUEi ..ARID TUTTu _ JMsge (laylmiV THE STA FE vs. CANATOO, A CIIKHOKU'. INDIAN- Committed to Jail upon a charge of digging gold in that part of the Cherokee Nation fin* an yrt ceded 'at attached to the count;/ of (l.cinnrtt, for the purposes of cietl and cri mi:, a I j a rind i cti on. Tiio prisoner was brought up by Habeas Ooipus, an-! his discharge moved for upon three grounds. Ist. Defect of commitment ”and. There was no law making the offence cri minal ; and Il<l. If there was, it was contrary to existing treaties, and therefore contrary to tha Constitution of the United States. There is no force in the first objection, and consequently it needs no consideration. In the 2d the Court admits there i some room to doubt. And here it will take occasion to say that as this is a very important question, involving rights cf the highest character, both in relation to the State and the Indians, and as there should exist the utmost harmony be tween tlie Legislative and Judiciary branch es of government, both aiming to discharge, with fidelity, the high obligations committed to their trust, and socking to accomplish a common object, the welfare of the communi ty, it will bo strictly pro; •v and evince a be coming respect foj the Legislature, for the Court to refer the act back to that body with its views candidly expressed, on both of the last mentioned points, with a hope that such a course nny prevent any future collision.— And this is considered the more discreet and necessary, as this case, under its present ar rangement, is not of such pressing urgency as to require a hasty decision. Upon the 2d ground then it will be neces sary to bring the act of the last Legislature into view. Tire substance of its caption is is “take possession of the mines within the Cherokee nation, and to punish any person or persons who may he found trespassing up on said mines.” The preamble of the law asserts that the mines “are of right the property of Georgia” and states that “great waste has been com mitted by the trespasses and intrusions .of j numberless citizens of this and other States, taking and carrying away large quantities of I gold from said urines —-for remedy whereof Be it enacted Ac.” Thcist. see. authorises the Governor to take possession oft.ho mines and to employ a force to protect them “ from ! all further trespass.” The 2d. sec. appropriates a certain sum of money to carry into effect the foregoing sec- 1 tion, and the 3d sec. declares that “ for the better securing said mines from trespass , that if any person or persons shall be guilty of digging for gold, silver or other metal upon j •said mines, unless authorised by lair, ho, she or they shall be guilty of a misdemeanor, and upon conviction thereof, shall bo sentenced hard labor in the Penitentiary for and du ring the term of four years.” The 4th and sth sections inflict a like punishment upon any person who shall em ploy any white man, Indian, negro or mulatto <o dig or carry awav any gold, and provides C.iatThe act is not to be so construed as to confine a slave irs iho Penitential)’. The 6th section confiscates all slaves and <u!hcr property employed in trespassing on said mines, and the proceeds of their sale to j bo paid ints the Treasury. The above is an analysis of as much of the law as is neces sary for our present purpose. Though the Caption is a general one, and applies to ad persons, yet it is contended that it refers-only to trespassers, and that as the word trespass is a legal and technical term, it must be tc- 1 • reived according to its legal meaning. “ Tres - 1 yass (says Blackwfone,) as relates to land, sig nifies no more than an entry n another man's ground without a lawful authority and doing, some damage, however inconsiderable, to his real property.” And it matters not whether the person in possession is “ landlord cr ten ant” whether lie has an “U'so’ute or qualified property” in the promises, eul ’T has his right of action against his trespasser, c .Lsequently no man can be a trespasser upon land of which die has the use and possession or which bcier.gs to him absolutely orfor adiinited time. The. applying this doctrine, St is said an Indian cannot be a trespasser upon lands of which it j-acknowledged, by treaty, lie has the full tree and undisturbed possession. -Again, it is contended tbat-in aid of the a l.ovc principle the preamble of thedaw is very .strong if not conclusive. It states that great waste have been committed by the trespasses and intrusions if whom ? Not the Indians— but numberless citizens of this anJ other ritates.” Now Indians ate not citizens and •trti r have been so considered. The pream ble proceeds to declare “for remedy whereof” "What mischief is to he remedied ! The ■irespaarea ami intrusions of numberless citi r/x of this and otiter ■'■fates upon the mines.” ; Then comes tho enactngdause which states “ for the better securing sai l minis from tresspass, all persons guilty of digging gold' *;hall incur the aforesaid penalty '‘■unless au thorised by hit." to dig. Now here is room to ; -contend again, that it was trespass in its le gal sense, tiio Legislature intended to pun ish, and that as n vas well known no one j could by any possibility, according to exist ing laws, be “authorised i,” Jaw” to dig for! gold but the Indians, they having the constant --..-tl uniform law of treaties ns wed ns tho in- ! trreourso law of tho United States to protect j fittm i:i tho possession of their ut.ccfh d 1 lands, theabove expression was intended as : st saving- in their behalf- It has been urged -arid some facts stated, which occurred at the 1 pas-age of the 'mw, to-explain the reason ofi "the above proriso, hut l pr.-sirme every one , 3, now* that Courts of justice cannot tran lout: of the law fur any explanations of its mean ing; it would go to establish the monstrous! j.r. -tic; of ascertaining the sense of the Lcgis u.’rst'i by oral testimony, and thereby place; Cm L-ws of tli-J land in the most dubious and lluctu'V-ing condition. Again it is,asked, if the above section was intended to rtnbnipe ex cry person who should dig gold where was tko necessity of tbo 4th geetiou which imposes the same penalty upon miv pr ison v. 100 should employ a white man, liidmn, neao, or mulatto to dig gold? If it n c.mtcaded that these four descriptions of person w< tc excepted from the pcnaltv of the third section because the white man allu ded to was one who should not be a citizen of this or any other State, but who claimed the rights of an Indian as a descendant, and thcrc : fore for greater particularity common to the law, was described as a white man. That to employ him or the Indian should be a crime in the employer, for if it was criminal in them to dig gold no one can or will believe they would suffer themselves to be employed in a business that would send them to the Peniten- i tiary. And this idea is much strengthened j i by the fact there is an after provision [ which exempts slaves from Penitentiary confinement and subjects them to confisca tion, as an additional punishment to the employer. i These are the doubts thrown around this j law, and the Court is called upon to reaiern j her the rule of construction to be found in j the English law, which is our law, and which ! jit it ever existed in any country, ought to i exist in this boasted land of liberty, viz.— | “ It was one of the twelve tables of Rome, i “ that whenever there was a question be j '* tween liberty and slavery, the presumption | “ should be ou tiic side of liberty. This ex j “ celient principle our law has adopted in the j construction of penal statutes, for whenever j “ any ambiguity arises in a statute introdu- j j “ ciug a new penalty or punishment, the dc- j (“ cision shall be outlie side of lenity and | J “ mercy ; or in favor of right and liberty : or i “ in other words, the decision shall be accord -1 “ ing to the strict letter in favor of the sub | ject. And though the Judges in such cases | I “ may frequently raise and solve difficulties j j “ contrary to the intention of the •Legislature, | “ vet no further inconvenience can result, j “ than -the law remains as if, was before the | “ statute. Anil it is more consonant to the j “ principles of liberty, that the Judge should j*• acquit whom the Legislator intended to! ! “ punish, than that lie.should punish whom I I “ the Legislator intended to discharge with* j impunity.” J do believe it was file intention j of the I eg Lint lire to bring the Indians within j I the penalty of the law, but I candidly own 3! ; arrive at this belief more from my knowledge j j ui the history of its passage, than from the! i law itself, aud that to one entirely unacquaiut-! ed with that history there would be much am-1 biguify in its true object. Relieving then as 1 do, and that the Legis lature lias perhaps not given the subject that j full and deliberate investigation which lie- j longs to Courts of justice, and which their: supposed knowledge of the Constitution, laws and treaties of the land, and the constant am) j familiar use of legal principles in expound-! ing the same, enables them to bestow on si ich I I will proceed to present myopia : ion on the 2d ground for the future consider-1 at ion of the Legislature. In the hegining of this investigation I .lay ; down-the following principle that there never; have been but two ways of acquiring Indian ! lands, — by force and by purchase. 1 add, i history does not furnish a single instance i where one foot of Indian lands lias ever been taken by force, by the United States, espc-' I eiully by Georgia, and this redounds greatlv to the credit of the settlers of America, for Vattcl, the licet \vi iter on natural law ob j serves, “that the cultivation of the soil was jan obligation imposed by nature upon man-, j kind, and that the human race could not well j subsist, or greatly multiply, if rude tribes,i which had not advanced from the hunter ! state, we’re entitled to claim and retain all i the boundless forests through which they i wander. If such people will usurp more j territory than they can subdue and cultivate., j they have no right to complain if a nation cf cultivators puts in a claim for a part.” 3 Rein’s Cum, 312 and \ ai. 1, b. see. 81. e Jilted further add-, “people have not then j deviated from the views of nature in confining the Indians within narrow limits,” hut praises the moderation of the American settlers for ! purchasing from the Indians what they had a right to take by force. All that the first dis- Icovcrcxs evi riJaimcd was the riglit-of emjnre, and the ultimate right o (dominion over the Territory which they took the possession of in j right of their sovereign, and as against uli | other nations this right was rigidly enforced. ] This right of empire err of government has ! been fairly dcduccdintothe btatc of Georgia, a.:d I consider "that question as at rest. 'J’he right of domain or soil is also in Georgia, hut •subject to a claim or title offlid Indians which much he extinguished in some wav or other! before Georgia’s absolute right wifi accrue ; i’he question is, how is this to he extinguish-! ed ! is it to be by force, or by purchase 1 — 1 If by force, is tkn't’oim to understand that j the law cf the last Legislature is intended to j i d’, ct that purpose ? Is it to understand that j the‘Stale renounces the policy pursued by her-! self, her sister Stales and the United States,! for the last three centuries, ntid throws her-! seif upon the original right which Varied al- j frits she had at the discovery of America, ami > t left-too, where the reason for that right has j almost if not entirely ceased ? Will the State j urge, after greatly advancing-in science ami civilization, and what is still betier, in the know ledge ofpist and equal laws, that by rea son of its-crowded population rt is unable to “subsist and multiply” without this land—that these “rude tribes have not advanced from the hunter state and usurp more territorv than is necessary for their subsistence, or, are not sufficiently confined within “narrow limits r Tliis court does not consider this law to be 1 an act of force, but is fiumlcd, no doubt, in' what the Legislature honestly believed to be! a right acquired,somewhere between the first: discovery of the country and tlie passage of! the-act, either in the force and effi-ct of the! j'mvs of Great Britain, over that people from' wltom we obtained the-country, or in our own 1 laws, treaties and compacts, since its ocquisi tion. It rs then under this view we narrow! down the consideration of the question. And first, if the Indians have a title to ex-! tinguish, what is that title ? I shall consider! the question under a two-fold aspect. Ist. AVbat part or portion of the land have they a I right to enjoy under their title ? 2d Mhat is the nature and duration of I their title ? An idea prevails that the mines and mine- 1 rals of a country are sepaiate and diatinet from the interest of the land, and that the former always belong to the sovereign. Now nod;. . ing is more erroneous, am! this mistake has I occasioned all the difficulty. I candidly own that i labored under it myself and granted an Injunction with a view to settle the question, but when I came to examine the subject, 1 foiled noUriugtosuppcrtsuch an idea; on tlie contrary I found every thing which was cal culated to satisfy me 1 was wrong. Not de siring my own views, by any means, to be con sidered as authority, I shall speak whenever I can in the language of the law, as given to us by the best and most approved writers. — Justice Kent, therefore, says, “it is a fun damental principle in the English law, deriv ed from the maxims of the feudal tenures, that the King was the original proprietor of all the land in the kingdom, and the true and only source of title {2 Black’s Coin- 51,53, 86, 105.) In this country we have adopted the same principle, and applied it to our re publican government; and it. is a settled and fundamental doctrine with us, that all valid individual title to land within the United States, is derived from the grant of our own local governments, or from that of the United States, or from the crow a, or royal chartered governments established here prior to the rev olution.” 3 Kent's Corn. 37 0, and the au thorities there cited. Now what is land? “In its legal significa- tion, (says Coke arid Black.-tone,) land hath an indefinite extent upwards as well as down wards. Upwards, to “the sky” is the maxim oftlic law, and therefore no man may erect any building, or the like, to overhang anoth er’s land; and, downwards, whatever is in a direct line, between the surface of any land and the centre of the earth belongs to the owner of the surface, as is every day’s experi ence in the mining countries. Ho that the word “land” includes not only the face of the earth, but every tiling under it or over it.— And thereforo, if a man grants all his lands, lie grants thereby, all his mines of metal and other fossils, his woods, his waters, and his houses, as well us iris fields and meadows.”— 2 Black’s. 18. ! By the foregoing doctrine it will appear that the. State as the “ original proprietor” of all the lands, held not only ail the mines and ! minerals , but every thing else that is included jjn tiic term land. Originally they have nev ; or been separated, any mure than the woods i and waters have been separated from the soil, am! I defy the production of any authority to prove the ■contrary. But whenever the Crown granted its la;#ls, if it choose to make a re servation of the mines and minerals upon the face of the grant, it had a right to do so, aud from that time they became separate and dis tinct, and never before. And all the mines and minerals now held by the King of Great Britain, separate from the lambs, is bv virtue of such reservation at the time of granting liis land. This is the ease with regard to some of the lead mines of the United States, and this was attempted by an act of Georgia in 1825, but meeting the decided disapproba tion of the peojds it was shortly repealed, i have no hesitation in saying that the State, holds just as good a title to the Indian lands as it does to their mines and minerals ; that it j is by virtue of the former it has any right at j all to the latter; they are inseparable. If they were distinct rights w hile the land is in 1 possession oftlic Indians they would remain j so after the Slate acquires the land from the Afclian-, for there is nothing in that act that yKwitcs them, and a consequence would be, ; when she-granted out Iter lands to her citizens the minesrnid minerals would not pass, even though she made no reservation in *,ie grant, anil this \ve all know is not the case. • 1 have looked in vain for any historical fact, in relation to the discovery and settlement of America, for any reservation of the mines and minerals to the sovereign, separate and apart from the territory itself ; indeed there j could lie no reason for such a distinction, for as before observed, the whole empire and do main bclongedlo the discoverer. No Char ter, Proclamation, law or public document, contains any mention of such reservation, i therefore conclude that whatever right the Indians hold to theirland,they Imi Id the same right to everything which fails within its le ! gal definition, and this brings us to consider, | secondly, the nature and duration of their title. In considering this head, I shall present three views of the subject. Ist. In what maimer their title was respect ed by Groat Britain, the discovering nation, and from whom "Georgia obtained the conn try. 2d. In what manner Georgia has respected it since its acquisition. And 3d. llow it has been respected by the Courts of Justice. Ist. We have already shown that the dis covering nation had a right to take by force a [tart of the country, such as would strictly an swer the exigency making such force neces sary, but that nothing would just ify the taking the whole of the country and leaving its inha bitants to perish. That though they might be i confined in “narrow limits,” yet there wi re some limits to which they would have a right of force. Whether they are now within those limits, it is not my intention to enquire, though it i.s well worthy of humane consideration, especially as they tire receding from the “hun ter life,” which originally justified the seizure of their lands, and approaching the agricultu ral condition, which brings them within the “curse” of their creator, and entitles them, in common with the rest of mankind, to a por tion of the earth, for their support. But Great Britain never took one foot of their land by force. She chose the rather lo adopt a more enlarged and liberal |*olicv, and waving the right as admitted by Ynttel, resulting, as he said, from a “celebrated question to which the discovery of the new world had principal ly given rise,” and was therefore anew doc trine in the law of nations, she reposed her self upon the law as it stood previous to this new principle, and took the counlrv subject to the right of conquc st. This right as every one knows confers upon the conqueror only the empire and the unappropriated domain, hut private property is sacred. It is true the 1 Indians did not hold their lands in private right, that they enjoyad them in common ; but Great Britain, greatly to the praise of her justice and humanity, chose to respect them in that light, and consequently wc find in a statement of the Province of Georgia, in 1740, sent home to the trade office m Lon don, that net an. “.Englishman was settled within this district when the first Colony of Georgia arrived. The country was then all covered with woods. Mr. Oglethorpe agreed with the Indians, and itrcii vse of them the limits mentioned in the treaty.” Except the charters which granted all Georgia to Ogle thorpe and his company, this is the first in strument or compact between the whites and the Georgia Indians, and what does it imply? Does it not incontestibly shew some kind of right in the Indians, if Savannah and the surrounding country was bougiit, is it riot proof that the seller had title, and if he had title to that which was sold did he not retain a title to that which he did not sell? If before Ogle thorpe landed, while Georgia “was then all covered with woods,” and in the exclusive possession of the Indians, they had mines which they then used or might have used that did not fall within the cession made to Ogle thorpe, does any due believe that he could by v irtue of this treaty, there being no other instrument in tiie way, have restrained the Indians from the use of those mines? 1 think no one can answer in the affirmative. Then from that day to this, where is the treaty that is upon any other footing? If the Indians had the right, then where have they lost it ? Oglethorpe, within his ceded territory, and with his company under his King’s charter, was as much the government of Georgia, us Georgia now is under its present constitution, and if he could not divest the Indians of their right to dig gold in their lands, not ceded to him, how can Georgia do it now with no higher right, indeed with precisely a similar right ? We have only to carry Georgia’s pre sent government back to that time and leave out all the treaties we have had with the In dians since, and we have precisely the ques tion above stated. Deriving our right from Great Britain, we do not pretend to claim i any better title than she had, unless indeed it, • is the genius of Republics to be more grasp-! ing than Monarchies, a principle 1 trust, that 1 will never be admitted. The above reason-! ing then shows a time when the Indians had I a riiilvt to the gold found on their land ; if they ! have lost that right, it is certainly incumbent 1 i upon the party who says he lias acquired it !to shew the deed by which it has passed. 1 ■ confess 1 have looked for it in vain. The next distinct and public evidence of i respect for the Indian title on the part o' ! | Great Britain is to he found in the King’s! proclamation of 17(i3—It is as follows: | “Whereas it is just an i reasonable and os- ] senti.il to our interest, that the several na tions or tribes of Indians with whom we are connected, and who live under our protec tion, should not he molested or disturbed in the possession of such parts o our dominions and territories as, not having been ceded, or purchased ny us, are reserved to them, or any of them, as their hunting grounds; we i do thereforo declare it to he our royal will and pleasure, that no Governor of aiiy of our colonies do presume for the present, and un til our further pleasure he known, to gran' narrrnt of survey or pass patents for any lands beyond the heads or sources of any of the rivers which fall into the Atlantic ( Loan, or upon any lands whatever, which not hav ing been ceded to, or purchased by us, as aforesaid, are reserved to the said Indians or • any of them.” The next clause of this proclamation fur ther defined the reserved laudato the ludi j ana, and forbid all persons from cither pur chasing c. settling within tiic same, and fur ther required all persons who had inadver tently “seated tin lasehes upon lands which had not been ceded or purchased, forthwith to remove themselves from such settlements.” And then it concludes in the following just and emphatic language; to the end that, the Indians may be convinced of our justice and determined resolution to remove ail reasona ble cause of discontent, we do, with t lie ad vice ofour privy council, strictly enjoin and require, that no private person do presume to j make any purchase from the said Indians, [ but that if at any time, any of the said Intii ! ans should be inclined to dispose of the said j lands, f he samesiiall be purchased ovAvfor vs, jin our name, at some public meeting or as \ sembl’T of the said Indians, to be held for that j purpose by the Governor of our Colony, with j in which they sliali lie.” Here then we do most clearly perceive I that Great Britain forever relinquished tlie j idea, whether founded in right or not, of tak ; ing Indian lands by force, and that she as j clearly substituted in its place the right, and ino other, of PRE-EMPTION. In this proc j lamat ion the pre-emption right, most, obvious ! !y originated, was the only one claimed by j by Great Britain while the country remained j her’s, and was continued, as we shall hereaf j ter see, by Georgia, down to a very late pe -1 riod. In nil the treaties made with the Indians, on the part of Great Britain, that govern ment evinced a studious care to make it ap pear to the world that all its purchases were lair and just. In the last treaty made in 1773, with the Cherokee and Creek Indi ans, there is a remarkable instance of this anxiety. After stating in the preamble, that the Indians in a full, free and voluntarily manner desire to cede the fends therein men tioned, for the purpose of paying their debts to the traders, and that it will he a grca r . fa vor rendered them to purchase tho same, the Indians say, “we do hereby solemnly declare that we do fully and clearly understand eve ry part of this treaty and cession, it having been fully explained iuul interpreted to us, and that the same is made at our own re quests and for our own benefit and advantage.” This treaty was for all that fine country a bove Little river, up to the Cherokee Coi ner. This closes the first view proposed, which was to shew the manner Great Bitainrespec ted the Indian title, and creditable as it imiv and dors appear to that Kingly government, it is not more so than that of the Republics of America after tho Indians fell to our charge. 3 proceed to show how Georgia has respected their title since her acquisition of the territory. She commenced precisely:;?. Great Bri ain left oil, which \v i ■ to p’li'ckase by treaty, a scope of country extending from tlie upper line of the cession last named to the Curre hee mountain. This treaty WB3 made in! 1783, and by the authorities of Georgia alone! with the Indians, Tuovears after nnotlic- Treaty was made by Georgia Commissioners with the Creeks, in which is found this clause, “if any citizen of this State or other person shall attempt to settle or run any of the lands reserved to the Indians for their hunt ing grounds, such person or persons may he detained until the Governor shall demand him or them,” and then lie was to be punish ed in the presence of the Indians. In 1787 the Federal Constitution was formed, the 10th Sec. of the Ist Art, of which declared that "no State, shall enter into any Treaty ,” and by the 2d. Sec. of the 2d. Art. it is also declared, that the “/* resident, u-iih the advice aud consent of the Senate, (tiro thirds concur ring,) shall male all Treaties Under this constitution, Georgia believed that she had ho longer the right to treat with the Indians for their lands ; she always asserted aud man tained her right to the jurisdiction and ulti mate soil of the country, through very many difficulties which she had with tno General government, but yielded flic right to that government to purchase off by treaty, for her use, the Indian title tosaid lands, always ccn i ceding that the Indians had a title of which | they could not be divested but by fair pur j chase, and that Georgia had the pre-emption j right to the same. The first public docu j merit where this rig-lit of purchase is consul j cred a pre-emption right, is in tiie Conven tion of Beaufort bctweenCcorgiaand South j Carolina, in which both parties designate it iby that name, to wit: “Georgia cedes to South-Carolma, (the lands between Tugaloo and Kiowec) all the right, title and claim, which she hath to the government sovereign ty and jurisdiction, in and over the same, anil also the right of pre-emption of the soil from ! the native Indians.” In numerous acts of the State, whenever Indians or Indian lands occur, u title of some sort is always acknowledged in the In dians, aud that the same must be extinguish ed by purchase, and that by the U. States, since the adoption of the Federal Constitu tion. It is wonderful to observe the mass of cvidenccsprcad through the public records to tins effect. For instance, in the act of ’93, appropriating lands for the payment of the State troops, it is required that our “Sena tors and Representatives apply without loss of time for a treaty to he held with such tribes who may claim the right of soil to such lands.” In an art nmondatorv of this act, common!v called tiie “Yazoo act,” where, if all se use of justice to Indian rights could have been forgotten, it would be the very place to find it; yet even here their tifle was respected, and the Yazoo purchasers were bound to extinguish it through the agency of the General Government by fair purchase; and what is remarkable, in four places of that act, the right of Georgia is expressly called a pre-emption right. But this may be consid ered as not tin; best, authority, and 1 am so disposed to consider if. 1 only mention it to shew that men of ai! descriptions have been disposed to respect the title of the Indians, and that surely less ought not to he expec ted from an honest community. There is however, an authority that I am sure every body will regard, and it is the memorable act which repealed the Yazoo act, commonly call ed the rescinding act. This act was drawn tip by tiic late Governor, James Jackson, one among the ablest statesmen and patriots that Georgia ever bad. The preamble which is an able view of Georgia’s rights over the In dian territory, and which boldly claims the right of jurisdiction and soil, justly recogni zes a title in the Indians, the right to extin guish w hicli is only pre-emptive on the part of the State. Then in the first enacting clause, it deel ires that the Yazoo,act and the grants issued under it arc. null and void, “and the territory therein mentioned is also hereby declared to ho flic sole property of the State, subject only to the right of treaty of the Uni ted States to enable the. Stale to purchase un der its pre-emption right, the Indian tide to the same.” The fifth section of this act declares the right to extinguish the Indian title, orto ap ply to the General Government for that pur pose, is vested in the people and government of this State, and concludes in these explicit terms, “to whom the right of pre-emption to the same belongs, subject only to the control ling power of the fa. States, to authorize any treaty or treaties for, and to superintend tlic same. ' This act passed in ’96. The next public document in which wo find the sub ject mentioned, is in the constitution of the Stale, adopted in the year ’96. The 23d section of the Ist art. describes the bounda ries of the State, asserts the right of soil and jurisdiction, and concludes bv declaring that “no sale of territory of this State, or any [ part thereof,shall take place to individuals or private companies, unless a county or counties shall have been first laid off inclu ding such territory, and (ho Indian rights shall have been extinguished thereto.’’— Words can not be plainer ami the obligations they impose can not he higher; for this | Court, as well as all officers, arc sworn to support it. Hut this is not all; keeping up : and acting entirely in conformity with previ j ous acknowledgements as contained in trea ties, acts ami the Constitution, the highest ciidonccof right, we find in a compact with the General Government, called the articles of cession, made in 1802, Georgia stipula ting * that the United States shall at their expense, extinguish for the use of Georgia, as cany as tlie same can he peaceably ob tained on reasonable terms, the Indian'title” to the lands left within the State and not sold to the General Government. What title? Surely the title wc have been all along tra cing down from the earliest settlement of the country, and which we have jus t seen was called a pre-emption right on tin* part of the State. I know Georgia has a right to coin plain that this title liasnot been extinguish ed; that it could have been dorm long ago upon reasonable and penuoabm terms/ But her complaint UiqgairAt the General Govcrn ment. The Indians are no party in this con track ihey have not bound themselves by tin,, instrument. They he answeni". lrie for the had faith ol one i<l tlq, contracting parties. Mill it he contended., that if the Indians will not sell their lands to the Gen eral Government, we will take them by force? Would such a doctrine he counicpunacd a moyg ourselves? If one citizen were to o blige iyiim elf to purchase e tract of land of Another citizen, for the benefit of H V will it he said that this third p er=o ni,t seize the land if its owner do not choosy part "with it ? If this is answered in Urinative, anti it w insisted upon *■' a , that a court f justice ought to enforce an usurped right, then I confess Ij, Jv StK ' mg more to say. But suppose the {W, Government never had Krtdr-rtaken t,> , tinguish tin's right. What then would hli been our situation with the Indians? 'yiV must live some where. I presume no is yet prepared to say their throats should cut to make way for christianized in . ) Recollect, we would have had jy, ter V beyond the Mississippi to which v?c cgA, transport them. Recollect too, tliov • * capable of being incorporated with m}-, men. W ill any one maintain, in the faec the strong cm rent of evidence through so many inviolable public doctswciit which I have just adduced in favor of if light, and which so accurately marks* orrn, th.t it would be just and right, bt: r Heaven, to take their property away consideration, or to pen them up Inse'ch i its as to perish? 1 cannot believe it i! much for tire articles of cession. " confession of Georgia (and confessions • • considered in courts the very best evident is to be found in an aide rcpottmadri -1810, to the Legislature, in the shape of petition to the President of the United State' complaining of the treaty of Fort Jack** and also Calhoun’s treaty which had annullc the only treaty that was likely to effect air moral oftlic Indians, viz., the freatvof iS]7 made by Jackson and Meriwether." Jn memorial is the following distinct acknotv cdgcmciit—“The State of Georgia claims' right to the jurisdiction and soil of the ten 'i tory witliin her limits. She admits however that the tight ts inchoate, remaining to b perfected by the United States in the mine tion of the Indian title; the United State pro hoc vice, acting as our agents." This finishes the view in which the hrd; an title lias been respected by the State ir Georgia, and brings us to the’ considcratio of the last thing proposed, how it lias bceii settled by the Courts of justice, and tiii branches again into two views. Ist. As settled by the Supremo Court <1 the U. States and tiie separate States of tin 1 nion— and -2d. as decided by ourovvi Courts. And Ist. As to the Supreme Court, Ju tice Kent, the ablest American comment; for that has appeared, in collecting the dec is ions ot that Court and consolidating the if;.- trine on this subject observes, that “them, ture ofihe Indian title to lauds lying ithi; the jurisdiction of a State, though entitled t be respected by all Courts Until it is legitim airly extinguished, is not such as to be also lately repugnant to scison in fee on the par ol the Government within whose jurisilic’ioii die lands are situated.”—ttCran. Hop. B*. Judge Johnson in this same case, went far ther titan the rest of the Court—he enquire.- “ii the interest in Georgia was nothing nor, than a pre-emptive right, how could tint u; called a fee-simple, which was nothingmir, than a power to acquire a ieo-sinfok by tm chase, when the proprietors should be plus ed to sell ! And if this over was any thi| more than a mere possibility, it certainly vai reduced to that state when the State of Gw gia ceded to the U. States, botli thepotreio pre-emption and of conquest, retaining for it self only a resulting right, dependent oil purchase or conquest to be made by the I States.” Justice Kent continues, “In the case, Johnson vs. Mclntosh, (8 \\ heat. 543, was stated as an historical fact, that on discovery of this continent by the nations Europe, the discovery was considered t<>ln given to the government by whoso suhjee or authority it was made, the sole right oj a qui ring the soil from the natives, (the rig of pre-emption) as against all other Europe' powers. Each nation claimed the right l regulate for itself, in exclusion of nil otha* the relation which was to subsist betwe the discoverer and the Indians.” After >■ ting that all the European nations, who b made discoveries in America, assumedu ultimate dominion and claimed the right grant the soil, “subject to the Indian rig of occupancf,” he adds, “The I • States a; opted the same principle, and their rxclusit right to extinguish the Indian title fry I* 1 chase or conquest, and to grant the soil ‘ iD exercise such a degree of sovereignty *sc. cumstanex s required, has novel" been p l '- allv questioned.” lie then affirms wW have already stated, that the States wit .ll which any one of the Indian nations *'• claimed and exercised the right to g°’ c j them, and that they “could transfer their lie” lo none hut the power claiming the J risdictionof their territory. “The P ccl ) *' habits and character (says our author) ot Indian nations, rendered them incajah® sustainingany other relation with the * ll Ilian that of dependence and P l, i ) . 1 a '?’ There was no other way of dealing ‘ than that of keeping them separate, su'o ‘ note and dependent, with a guardian r thrown around them for their protection' After mentioning that the rule cstahlo-• ll keep the Ju lians subordinate, to govern ® •protect them, to prevent them from tC ,! their lands to others, was the best that c 0" he adopted witli safety , lie states, 'Jj founded on the pretension of converting discovery of the country into a conq'itri, • it is now too late to draw into discussion validity of that pretension, or tho restrrc'j which it imposes. It is established L 1 inerous compacts, treaties, laws and ° err, and founded on immemorial usage, country is colonized and settled, and u f held by that title. It istlic law olthe and no court of justice can permit the s to he disturbed i>y speculative rcaaonUjff ai,•tract right*” This, ho continues, is doctrine ol the Supreme Court, and tic ted States “have never insisted upon an erchiim to the Indian lands than tin preemption upon fair terms-” R l!i j taken by New-York in the case oj ' . and Jadson, (20 John Rep. C9J,)'\' I( 1 ( j State claimed the rightof J' rr ' < '"'I , ’ r ''' u ; Indian lands within Imr limits and 1 other purchases void. The Lege , Virginia in 179?) asserted the sanm ive rinlit ofprc-rmyt.ion. and the eon;