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ceedings struck me as somewhat novel, and I find that the
Senate departed in this instance from its former practice
on the same subject under Mr. Jefferson's administration.
The treaties between the Senecas and Oliver Phelps, as well
as the Holland Land Company, for perfecting the same pre-
emptive right, were laid before the Senate by Mr. Jeffer.
son, and formally ratified like other treaties. There was
but one dissenting vote, [Mr. Wright, of Maryland.] Nei.
ther Mr. Jefferson nor the Senate appear to have then
thought that this was an interference in any matter beyond
their power. How soon afterwards it has been discovered
to be so, I cannot say. It may, perhaps, be inferred that
this treaty was considered more in the nature of a private
contract, than a political treaty in the sense of the constitu-
tion; and the conclusion to which the Senate came may ad-
mit of that explanation. But I think that the proceedings
followed too close upon the Georgia resolutions, to autho-
rize us to consider it as a grave precedent in its bearing on
the question of State Sovereignty.
The committee have referred us to an expression found
in an opinion delivered in the supreme court of New York,
by the Chief Justice, in which they came to the conclu.
sion that the Indians were to be considered as citizens of
the State, and capable of taking by descent. They have
copied into their report an extract of half a dozen words,
in which the Chief Justice said that he “knew of no
half-way doctrine on this subject." It would be quite
enough for New York to say, in answer to this case, that
this opinion was afterwards reversed in the court of errors
with great unanimity, and this very point was then fully
examined by the chancellor. But it would have been more
fair to have furnished us here with a somewhat larger ex-
tract from the opinion of the Chief Justice. The context
would have shown us more clearly the views which led the
court to the conclusion to which they came. He says that
the court “do not mean to say that the condition of the
Indian tribes, at former and remote periods, has been that
of subjects or citizens of the State. Their condition has
been gradtially ehanging, until they have lost every attri-
bute of sovereignty, and become entirely dependent upon,
and subject to, our Government. I know of no half-way
doctrine on this subject.” Now, sir, I think that the fair
import of this is rather against the position taken by the
committee. We all admit that there is no half-way doc-
trine on this point. Every candid man will admit, too, that
a tribe of Indians within any of the States may so far
dwindle away, or abandon their right to self-government,
and so far dissolve their original institutions, that they may
be considered, on the soundest principles, to have become
merged in our society, and extinct for all political purpo-
ses as separate communities. It would be very easy to re-
fer you to eases of that sort in New England. The Chief
Justice said that the time had come when the court, on
those jo. only, might so consider the Indians in
New York. It was not a question involving strict principles
of municipal law merely. The court considered that such
was, in fact, their condition. But the case is reversed, and
the law of the State is settled to this day as the court of
errors left it. The Chief Justice, however, nowhere de-
nied the original native right of the Indians to sovereignty.
That was expressly disclaimed. He asserted no rights of
conquest over them or their lands. He said nothing of dis-
regarding Indian pretensions to their lands; or that any of
the colonies or States had ever maintained that they i.L10
rights of sovereignty or soil. There is nothing of this, or
any thing that countenances it, in the opinion of the court.
Such doctrines as these would have startled the moral sense
of the State, and contradicted her whole history. And
how far, sir, after all, could the committee have pressed
this opinion into their service, if it had never been over.
ruled # It referred only to the condition of the Indians in
New York. It neither speaks nor treats of any others, nor

does it profess to suggest any principles which reach the

case before us here. Upon these, it is silent. . It is very obvious how the court were led to the conclusion to which they came. No one can read this opinion, and fail to see

that they relied chiefly on the effect of the act of April

12th, 1822. The history of this act is well known to every lawyer in that State. Soonoogize, a Seneca, Indian, had been indicted for killing an Indian woman within the Sene. ca lands. She had been put to death under the authority of the Seneca chiefs and sachems. He pleaded to the jurisdiction of the State tribunal, and the question came be fore the Supreme Court for their opinion, in 1821. It was fully discussed by the Attorney General and the counsel for Soonongize, (Mr. Oakley) and the learning, research, and ability displayed in that argument will be long re. membered at the bar, and in the courts of New York. I recollect well the general impression at the bar at that time on the point. The court held the case under advisement until the next winter. They found no principles on which they could safely affirm, in a judicial opiniou, the jurisdic. tion of the State court. They reported the ease to the Go. vernor, and recommended that the question should be sub mitted to the Legislature. The act of 1822 was passed There was, however, no Indian land to acquire. No code of Indian crimes was enacted, nor were Indians disqualified to testify in any case. The object and spirit of it are very manifest in the recital which precedes it. It states that the Senecas had exercised the power of puuishing, even capitally, individuals of their tribe; that the sole and ex: clusive cognizance of crimes belongs to the State; and that to protect the Indians, this jurisdiction ought to be as serted to that extent. Now, sir, what was the ease before the Legislature? and on what motives did they act? They saw that death was inflicted upon the Senecas under their bloody code and summary #. forms, with no regard to proof or any security for the fair investigation of truth. Crimes, too, were of the most fanciful character. Sorcery and witchcraft were among them. The system was, in it. self, [little less than murder. There was some form or mockery of inquiry before the chiefs, but nothing like trial The foundation of what we call punishment had no refer

ence among them to the protection of their society, but

was rather the infliction of personal retaliation or privals revenge. I believe that the case of Soonongize partook somewhat of that character, but I do not recollect the cir cumstances well enough to say that I may not be inistakes on that point. The intention of the Legislature was to rescue them from this condition—to extend to them, if it could possibly be done, some security against the inhuman proceedings of this Indian code—to afford them a fair and impartial trial—a trial by testimony—the aid of counsel, and the security of a jury. It was felt that the State owed it to humanity—to the unfortunate people cast upon her protection—to her own character, and her responsibility to the opinion of mankind, to make that effort to arrest this course of violence and waste of human life. If the act can be sustained, it is undoubtedly desirable that it should be. But this is not the first occasion on which I have expressed my own opinion that it left the whole matter exactly where it found it. It has once been my professional duty to exa mine that question in its bearing upon another case . The sovereignty of the Senecas is yet unimpeached, if it should

be found that they were not subject to the jurisdiction of the

State when this act was passed. That question yet remainst be tried. However benevolent the intentions of the Legis. lature may have been, yet, if it should be found that the consent of the Seneca nation to the exercise of this power was necessary, the courts will pause before they assume jurisdiction under it. I am not aware that the act has ever been executed. It was shortly after its passage, and in the first case which brought up the question as to the condition of the Indians in another form that the Supreme Court, relying on the inferences to be drawn from that law, decided that they were citizens, and subject, like all

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others, to the laws of the State. But, since the reversal of
this case, the opinion of Chancellor Kent is considered to be
the law of the State. How much aid, then, to the doctrines
of the report of the Committee on Indian Affairs can be
o drawn from the course of judicial decisions in New York,
even since the passage of the act of 1822, I leave to you
to determine, aud will dismiss this part of the subject with
the remark, that, if by the public or conventional law of
that State, or the Union, whether arising from treaties, or
founded on any political principles of our system, the Se-
neca nation held their sovereignty in 1822, that act has not,
and could not rightfully take it away.
I shall cheerfully eoncede that we are to look to the acts
of the colonies, and especially of the States and the Federal
Government, to determine the rights of soil and sovereign-
sty claimed by the Indian nations; but I shall be compelled
to detain you longer than I should have done, had the Com-
mittee on Indian Affairs claimed with less confidence, and
given us better proof that the fundamental principle that
the Indians had no right to either, had never been abandon-
ed, “ity’r expressly or by implication. Whatever may
have been the public law before the revolution, it would
be quite sufficient to settle this question conclusively in
favor of the Indian nations, by showing what the acts of
the old Congress, the States, and the Federal Government
have been, from the declaration of independence to the
present time. *But, as we find upon our tables a collection
of colonial laws, some of which were passed nearly two
centuries ago, I will trouble you with some reflections that
have occurred to me on this mode of disposing of the diffi-
culties thrown in the way of gentlemen by the history of
later times. I cannot agree that we are to go back quite
so far to ascertain the public or conventional law of the
Federal Government, or to look beyond the revolution for
the political law of the States. This collection of laws
certainly contains some, chiefly of an early date, which may
now appear to be somewhat o, and there is no
doubt that many could be found, which would show less
regard to Indiau rights, and perhaps to the common claims
of humanity, than some of these. There may be much to
disapprove, and much to lament, in our early history. I
cannot say that I have found much instruction from the ex-
tracts laid before us of these early laws of the colonists,
and I certainly feel no gratification that they have been
rescued from oblivion, and placed among the documents
of this House. I am sorry to see them here. It would
" not, however, be difficult to account for the origin of
them, without attributing them to a spirit so unfavorable
to the claims of the native inhabitants of this continent,
as the Committee on Indian Affairs seem to have assumed.
It would be rather remarkable if we could show that In-
dian rights were always held in high respect, or that In-
'dian treaties were always strictly observed. We must
make great allowances for the early colonists. They were
settled here at a great distance from Europe. They were
little regarded, and altogether unprotected, by the mo-
ther country. Their vicinity to these fierce and warlike
nations often produced dangerous collisions with them.
' A state of exasperation sprung up, which led to merciless
wars and bitter and implacable resentments. The French
were on the other side of the Indians, and sometimes ex-
eited them even to the extirpation of the English colo:
' pits. If we consider what the state of society was, and
o how strongly the principle of self-preservation is implant-
ed in the human heart, we should rather wonder that the
Committee on Indian Affairs had not been able to find
ouch more in our early history to sustain their positions.
Was it to be expected that, our fathers were to be more
then men in the critical and afflicting situatious in which
we know, from history, they were often placed Would
you look for calm philosophy in men whose families were
"wakened from their pillows, at midnight, by the yell of
the war-whoops—when they fled naked, in the depth of

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winter, to the nearest thicket, for refuge from the tomahawk —when they looked back upon the conflagration which lighted up the pathless forest around them — when they returned to the burning ruins, and saw the door-posts of their dwellings sprinkled with the blood of their children, and the remnant of their families swept into captivity —or when they gathered from the scorching ashes the calcined relics of all they had held dear on earth If we cannot justify that extremity of retaliation to which human nature, in such circumstances, could be tempted, let us be just enough to their memory to forbear to reproach the errors of their social affections. Why, sir, do we not go back, and bring up for our example, at this day, other laws of our own, or other countries, more gravely enacted, and quite as rigorously enforced We might, perhaps, be able to justify the practice of making slaves of the Indians; or, if we should be inclined to go back still further, we could justify the putting of prisoners of war to death. It is not half a century since the African slave trade was generally condemned by the laws of christian Governments. I i. be very sorry to believe that the Government was driven to justify the passage of this bill under any examples like these, or that we should be forced to confess that we and all the world have made no advance, for two centuries, in poli

tical science, or the morality of the code of public law by which enlightened nations are willing to be governed. I hope that, during that time, our society has gone forward and not backward. We boast much of our improvement in other things, and why should we not be willing to admit it in this? I protest, at least, against going back to the time when the fires of Smithfield were lighted up, and I cannot consent to take the expulsion of the French from Acadia as a fit model to illustrate our duties to the Cherokees. . We had better come down to later times— after christianity had shed its pure light more clearly upon the world—after the colonial Governments had become better established—the code of public law better considered, and the duties of nations better understood and defined. It will be quite as well for us to see what our own Govoruments have done in the last fifty years, aud ask ourselves if we ean honorably repudiate this portion of our history. We may, perhaps, find ourselves so hemmed in on all sides, that this question is not to be debated at this day... If it should turn out to be so, it will profit us

*:: little, to know that, in a winter's search among the archives of one of our historical societies, we have been able to find a single treatise, written a century ago, to prove that the Indians never had any rights at all on this continent. I have looked into that work of the Rev. John Bulkley, from which the gentleman from Tennessee read us an extract; and it is very true that it makes out the whole case. The learned author zealously maintains that the Indians were in a state of nature; that they had

no homes, and no Governments, and, consequently, no more right to the soil or sovereignty, than the auimals

which they followed in the chase. This is the substance of his argument; and he undoubtedly convinced himself of the truth of his hypothesis. But to prove that against our treaties, is to prove nothing, unless it be shown that we are in a state of nature, too; and that men in a state of nature ary released from the moral law of nature. It would be much easier to get rid of our treaty obligations, by assuming, at once, that, christian nations were not bound to keep their faith with infidels; and plentiful casuistry can be found for that, too. This matter is not to be

disposed of in that way; nor will it be hereafter. It is too late for us to deny our claims to be considered a civilized people; that we are willing to acknowledge the public and social law of the human family, and to be bound by

that code of universal morality which is confessed by

every Government which feels it to be honorable to sland

within the pale of christian nations. It is uot a trifling

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thing for us to start any principles, at this day, on which we may claim to absolve ourselves from the obligation of that faith which we have pledged in all our Indian treaties. The question is too solemnly settled. If it was now an briginal question, and a mere speculative inquiry, we might treat it as a theme for the exercitation of ingenuity with a better grace, and shelter ourselves from the imputations which may follow, under some more plausible apology. But we cannot approach our Indian treaties on any side, without finding them secured by sanctions which cannot safely be despised. I fully admit, that, shortly after the discovery of America, the o became established, by European nations, that they held their dominions here, as among themselves, by the right of discovery; and that this doctrine must be considered as settled at this day, let its origin have been what it may. We should hold a maxim of such long standing in the greatest respect. Some inconveniences may have followed from uncertainties in the history of the early discoverers, and the difficulty of its application to the claims of nations, as the population advanced into the interior. But, from the very uature of the subject, any rule would p. have led to some collisions. This may have en considered the best; and almost any rule was preferable to none. It was clearly better for England, and, probably, for France, too, to establish this rule, than to submit the question of title to the decision of the Pope, who claimed all undiscovered lands as his spiritual patrimony, and parcelled out his unknown dominions on maps which furnished him nothing but degrees of longitude to define the extent of his earthly donations. We must consider, therefore, that this question of priority in right is to be settled by É. of discovery. Occupation does not seem to have been, at first, considered as strictly essential, though it was generally taken symbolically. It is probable, too, that this rule had no reference originally to any question growing out of the title of the natives. The morality of such an application of it would have more seo merited the sarcasm of one of our poets, who has said, o “The time once was here, to the world be it known, “When all a inan sail’d by or saw was his own.” As the spirit of discovery advanced, the claims of the native occupants, who might be found here, presented another i. The voyages of Columbus had shown it to be probable that every part of the new world was peopled. It was necessary to find some semblance of principle to dispose of their title. In an age which was overshadowed with superstition, and when the human mind was darkened by bigotry, it was not found difficult to silence conscience, and even enlist the religious feelings of mankind in favor of the schemes of avarice and ambition. They were, therefore, cloaked under the garb of religion. Ojeda's proclamation will show us the nature of the claims of Spain to the soil and sovereignty of South America against the natives. “l, Alonzo de Ojeda, servant of the most high and powerful kings of Castile and Leon, the conquerors of barbarous nations, their messenger and captain, notify to you, and declare in as ample form as I am capable, that God our Lord, who is one and eternal, created the heavens and the earth, and one man and one woman, of whom you and we, and all the men who have been, or shall be, in the world, are descended. But, as it has come to pass, through the number of generations, during more than fourthousand years, that they have been dispersed into different parts of the world, and are divided into various kingdoms and provinces, because one country was not able to contain them, nor could they have found in one the means of subsistence and preservation; therefore, God our Lord gave the charge of all those people to one man, named St. Peter, whom he constituted lord and head of the human race; that all men, in whatever place they are born, or in what

ever faith or place they are educated, might yield, obe. dience unto him. He hath subjected the whole world t his jurisdiction, and commanded him to establish his resi.

dence:at Rome, as the most proper place for the govern

ment of the world. He likewise promised and gave him power to establish his authority in every other part of the world, and to judge and govern all christians, Moors Jews, Gentiles, and all other people, of whatever see: or faith they may be. To him is given the name of Pope which signifies admirable, great father, and guardian, be cause he is the father and governor of all men,” &c. “One of these pontiffs, as lord of the world, hath made a grant of these islands and of the terra firma of the ocean sea to the Catholic King of Castile, Don Ferdinand and Donna Isabella, of glorious memory, and their successors, our sovereigns, with all they contain, as is more fully, ex. pressed in certain deeds passed upon that occasion, which you may see, if you desire it,” &c., He, then requires them to acknowledge the Pope and the King as the lord of “these islands;” to embrace their religion, and submit to his Government, and concludes thus: “But if you will not comply, or maliciously refuse to obey my injunctions then, with the help of God, I will enter your country by force. I will carry on war against you with the utmost vio. lence. I will subject you to the yoke of obedience to the church and the King. I will take your wives and chil: dren, and will make them slaves, and selléand dispose of them according to his Majesty's pleasure. I will seize your goods, and do you all the mischief in my power, as rebellious subjects who will not acknowledge or submit to their lawful sovereign. And I protest that all the blood. shed and calamities which shall follow are to be imputed to you, and not to his Majesty, or to me, or to the gentle. men who serve under me. And as I have now made this declaration and requisition unto you, I require the notary here present to grant me a certificate of this, subscribed in proper form.” So much for the Spanish title. The state of feeling in England, too, was favorable to the same code of public law for America. Rymer has given us at large the commission of Henry VII, to the Cabots, from which I have taken an extract. This king was a near family connexion of Ferdinand of Spain. The tenor of this commission is to sail with the King's ves. sels, “ad inveniendum, discooperiendum, et investigandso quaseunque insulas patrias, regiones sive provincias gentilo um et infidelium, in quacunque parte mundi positas, gue christianis omnibus ante haec tempora fuerunt incognita" They are then commanded to take possession of their dis. coveries. The Latin is as barbarous as the doetrine. No translation could do it full justice. It is not improbable that this paper was the work of Empson and Dudley, who were the confidential advisers of Henry VII. Their characters are well known to all who have looked into any history of that period. The kingdom is said to have never been in a more disreputable condition than it was at that time. No man was safe; and this reign is said to have been chiefly distinguished by its rapacity and meanness. The successor of this king rewarded the crimes of Empson and Dudley by a bill of attainder. James I. made some improvements upon these examples Qf his predecessors. A king who held his notions of prerogative at home, was not apt to respect the rights of those abroad very highly. He commissioned Richard Penkevel to sail on a voyage of discovery, and took care to make “assurance doubly sure” to the lands of the natives of America. He prescribed in Penkevel's commission the tenure by which the lands were to be held, before the voyage was even commenced, declaring that they should be held “ of Us, as parcel of our manor of East Green wich in Kent, in soccage and not in capite". It was on a notion derived from some commission or charter of that sort, that the right of Parliament to tax America was main: tained about the time of our-revolution, on the ground

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* that we were represented in the House of Commons as * parcel of the county of Kent. Now, sir, it is useless for gentlemen to puzzle themselves with learned theses and ingenious disquisitions, to show that the European nations would have been justified in expelling the natives from their lands, on the ground that they were in a state of na"ture, and that man in a state of nature has no right to any a thing which he holds—not even to his life. King Henry, James, Ferdinand, and the Pope, set up no such doctrines : themselves. They doubtless asserted the best which they could find, and ought to have the privilege of being heard for themselves, and justifying themselves upon their own o H.P. We may search as closely as we may into the history of the claims they set up, and shall find at last that they were defended solely on the ground that these were heretic and infidel countries, and that the claims of hereties and infidels to the earth were entitled to no regard in a preference to Catholic dominion. But as the age of superstition and bigotry passed away—as prerogative bea came weakened, and popish supremacy fest into disrepute * -as the minds of men became enlarged, and the #. law improved, better principles were established. Before the beginning of the last century, moral and political science had become too far emancipated from the supersti. , tion, and intolerauce of the times of Alexander VI, as well , as the Tudors and Stuarts, to sanctify any longer the violences which had been committed in the name of religion , and prerogative. Grotius had long before given the true foundation of all original title. “Primus acquirendi modus est occupatio eorum qui nullius sunt” We have the right to take that which others have not already appropriated to themselves, but we have no right to take away our neighbor's property. This was the rule laid down by that great civilian and christian moralist. Then it came to be held by some that Indian occupation was no occupation for any purpose—that it was the state of nature, without the security of natural law. Some were so very liberal as to admit that the Indians were men, but held that they roved over the earth as vagrants and outcasts of the human family, with no more title even to what they actually cultivated, than the brutes that fled before them, or the winds which passed over the forest, and that they were fair subjects for sorce or fraud for all who might find it to be their interest to ensnare or hunt them down. There were John Bulkleys before 1734, who held to this doctrine as stoutly As John Bulkley of Colchester. But I doubt if any other treatise like this can be found in the whole history of New England. Why these people were, above all others, to be excluded from the social law of mankind, was not as closely inquired into as might have been. It was true that their kings and sachems had few or no prerogatives. They were generally governed by councils assembled 'from their whole nation. But if the head men and warriors proved to be sometimes refractory, the kings had no power to send them to Tower-hill or Tyburn. They lighted up no fires for heretics, and never sent their own prophets to the stake—they roasted their enemies only. They were ferocious and merciless in war, but they had no St. Bartholomew days. They held large tracts of uncultivated * country, but they had no laws of the forests—it was neither death nor transportation for a starving man to take a deer; and it is probable they never heard a discussion on the morality of spring-guns. They believed in witchcraft, ‘ as well as some others of their fellow-men—and in that they came somewhat nearer to a certain king, who sat in his closet with his treatise on demonology open before him, and conveyed away their country by parchment and green * wax, before he knew where it was to be found. We can! not deny that the European Governments originally held * the o: of the Indian nations in very little regard. * There were great temptations to treat them lightly, and they were not looked upon with that deference to the sounder principles of justice, and that humanity which

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has since so highly improved the moral law of nations. The spirit of avarice was excited, and the thirst of dominion was tempted, by the developments of the resources of the new world. Grants and charters followed, and were often dispensed as rewards to favorites. But, sir, whatever may have been the theories on which the Government at home asserted its supremacy, I deny that our English ancestors who first colonized these States, ever countenanced that disregard of Indian rights, or carried into practice that system of injustice to the native inhabitants, which has been asserted in the report of the Committee on Indian Affairs. On the settlement of the country, one of two courses was to be pursued—to deny altogether the claims of the Indian occupants for any purpose, and to dispossess them by violence, under any plausible or convenient pretext, or to treat them as holding a qualified right in the soil, and extinguish their title honestly by pur. chase. We have already seen in the proclamation of Ojeda, the system pursued by Spain. The natives were treated as fit for spoil only. The history of Spanish America is the most disgraceful tissue of injustice, cruelty, and perfidious villany, which stains the annals of christendom; and Spain has suffered for her crimes the retributive justice of Providence. But, to the honor of our ancestors, history has given us no North American annals like these. They held the doctrine of discovery so far as "to protect the chartered rights of the colonies against the encroachments of others, but they never sanctioned any system which left the Indian nations unprotected against themselves, and fit subjects for lawless plunder. They were men who acted up to their profession before the world. The honorable gentleman from Tennessee, in asking where we should look for the monuments of William Penn, directed us to the noble institutions and enviable prosperity of Pennsylvania. This is all very just to the name of Penn, but it falls short of full justice to his memory. I can tell him where he can find another monument to the fame of that excellent man. Vattal has perpetuated his name to all ages, and in all nations, in that work in which he has commended to all mankind the invariable respect in which William Penn and the puritans of New England held the right of the native inhabitants of America to their native country. It is very true that, in the colonies, the Crown was considered as the only legitimate source of title for its own subjects, and in most of them the lands were generally held under patents from the crown, or the colonial Governments. This was early established, and continues to be maintained to this day. The discoveries had been made under commissions from the Crown, and possession was taken in its name. As between the King and his subjects, the lands were treated as the domain of the Crown, and Indian purchases were not admitted against the grants of the King or his title. He was considered, in theory, in the light of an original foedal proprietor of the country. It was, therefore, said, that what otherwise might have been called at the bar of the courts the seisin of the Indian nations, was nothing more against the Crown than a naked occupancy. By the original title of the colonists, under their charters, they held in fact under the King, as the lord paramount of the realm. We hold this doctrine ourselves, so far as it applies to our Governments; but we claim no supremacy over the Indian right, even in theory, because they are to be treated as in a state of nature, and without governments of their own, which we have never acknowledged; or as heretics and infidels. Instances may doubtless be found in our history, (and the committee have been able to collect a few,) in which there was occasionally collision between some of the colonists and the Indian nations on the point of title. It is probable that, in some few cases, injustice was done; but the practice of the colonists settled down at last in favor of the sanctity of the Indian title to their lands. The committee have suggested that we should not give

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much weight to “the stately forms which Indian treaties have assumed, nor to the terms often employed in them,” but that we should rather consider them as “mere names" and “forms of intercourse.” If treating these Indian nations as proprietors of a qualified interest in the soil—as competent to enter into treaties—to contract alliances—to make war and peace—to stipulate on points involving and often qualifying the sovereignty, of both parties, and possessed generally of political attributes unknown to individuals, and altogether absurd in their application to subjects, is nothing more than "mere names" and "stately forms,” then this long practice of the Crown, the Colonies, the States, and the Federal Government, indeed, proves nothing. Words no longer mean what words im

rt, and things are not what they are. But these treaties so been looked upon as something quite substantial, in the time of them. Things as firmly settled as these, are not to be easily moved. This most honorable portion of our history is not to be obliterated by a dash of the pen. From a period not long anterior to the revolution in England, there are numerous Indian treaties made by the agents of the Crown, as well as the Colonies. These were doubtless made with the full approbation, and in many instances under instructions or F. from the Crown officers. They have been acted upon and acknowledged, in a way that puts all question as to their obligation at rest. The Crown and the Colonies found it to be their interest to take that course; the motives which led to it were various, and are quite obvious, even to a careless reader of our history. As long ago, as 1684, we find a “definitive treaty" made at Albany, between Lord Effingham, then Governor of Virginia, and Colonel Dongan, of New York, with the Five Nations. One of the chiefs said to them on that occasion, that “this treaty had spread so far in the earth, that its roots would reach through the whole land; and if the French should tread upon the soil anywhere, the Indian nations would immediately feel it." They kept this treaty faithfully, and the Colonies owed their ecurity, for many years to it. Shortly before our revolution, the principle may be considered to have been so far settied, that these nations might well claim to be invested with the capacity to contract in that way, as qualified sovereignties. The doctrines held in the time of Henry VII and the Stuarts, were op'o'; changed before the declaration of independence. On the 8th of April, 1772, General Gage issued at New York, “by order of the King,” a proclamation, fully recognising the obligations of the Crown under its treaties with the Indian nations. I do not mean, sir, to be understood to say that this acknowledgment of qualified sovereignty would have been admitted by the British Government to the full extent that we have carried it since. We found it so far settled at the period of our *. that we openly adopted it as the public law for ourselyeo. We have ever since placed our relations with the Indians on that footing, and they are not to be disturbed now on any fanciful hypothesis. . As to their right to the soil, however, that was long before solemnly settled in practice, and has remained so for a period too long to be now questioned. New England is hek under fair and honest purchase from the natives. A very small part of it was ever claimed by actual conquest. o: and New York were acquired in the same way... Mr. Jefferson says, in his notes, speaking for Virginia, “That the lands of this country were taken, from them by conquest, is not so general a truth as is supposed. ... I find in our historians and records, repeated proofs of purchase, which cover a considerable part of the lower country, and many more would doubtless be found on further search. The upper country we know has been acquired allogether by pur. chases, made in the most unexceptionable form". There is not a foot of land now held Ho: for which we cannot produce, from authentic history, her title by pur

chase from the Indian nations. This system, sir, was conscientious in itself, and founded in good morals. We may here stand up boldly, like honest men, besore all mankind. I am not willing to blot out these fairest page. of our history. I will not consent that these proud mono ments of our country's honor shall be defaced. I would not darken the living light of that glory which thesei. lustrations of the justice of our ancestors have spread ove every page of their history, for all the Indian lands this avarice ever dreamt of, and all the empire which ambition ever coveted. The administration appears to have conceded to Get gia the right of sovereignty and soil which she claims, in the report of 1827, over the Cherokees and their lands, under the impression that such was the operation of the treaty of 1783. The Secretary of War has placed it on that ground, and assumed, in that respect, the principles of the Georgia report. . We have never considered the treaty as any thing more than the acknowledgment of our independence, and we took the rights of the Crown by accession, . The King admitted that he treated with us as a power already independent. He granted us nothing of our sovereignty. He merely relinquished, for himself and his successors, his claim to the government, proprio, and territorial rights over the country. We do not claim these from his gift. The treaty took no such form. W became independent, in fact, in 1776, and our national a | pacity came into existence at that time. We were the at liberty, as an independent power, to adopt any policy of | assume, any principles we believed to be just in regardie the Indian nations. It is too late to inquire whether wo | might not have begun differently. We must be bound| now by the system which we in fact adopted, and our o quiry should be to know to what principles of public law we are pledged before the world, and in good faith, to abide by in our conduct towards the Indian nations. What doctrines, then, have been assumed—acknowl —as firmed—established, and acted upon for almost half a cer tury on our part, and trusted to by those we have deal: with 1. Before you made the treaty of 1788, you had *|| knowledged the qualified sovereignty of some of these n*, tions. . In 1776, we guarantied to the Delaware natio “all their territorial rights, in the fullest and most amp manner, as it had been bounded by former treaties.” The treaty states that the article was inserted to obviate the false suggestion which our enemies had, by every artifice in their power, inculcated upon all the Indians, that the United States intended to expirate them, and take posses. . sion of their country. . In the treaty of 1804 they were solo knowledged to be the “original proprietors,” and you o' then admitted them to be the “rightful owners” of the lands there referred to. An arrangement was provided, in some of your treaties, for allowing the Delawares and Cherokees deputies to the old Congress. I could reser you to numerous treaties, before and since the treaty of 1783, which conclusively repel the notion that the Indians were transferred to us as serfs of the Crown. It would be an unpardonable waste of time to examine them, or a fiftieth part of them. They include almost every Indian nation within the States. #. old Congress acted through out on the principles which I have stated. The constitution has put to rest a question which arose out of the power of Congress under the confederation, and shows how largely it was intended to vest the management of the It. dian affairs in the new government. The articles of cott federation had narrowed the power of “regulating trade and managing all affairs with the Indians,” by confining it to such as were not members of any of the States, and previding that the legislative right of any State within its own limits should not be infringed or violated. The constitution omitted these restrictions. Mr. Madison, in the [ Federalist, speaking on this point, says: “The regulation of commerce with the Indian tribes is

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