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vexatious interruptions which he experienced, did Mr. Lawless say, or do any thing calculated, in the slightest degree, to cause offence Not at all. He submitted patiently to the strictures of the court, and argued the case in the most respectful language. He endeavored to satisfy the Judge that his opinion had not been misrepresented, and that the article was neither contemptuous nor libellous; and that, if even it were libellous, the editor was protected from summary punishment by the guaranties of the constitution. Some cases were presented to the court to sus. tain these positions. All his pleas were overruled, and the Judge was about to pronounce judgment. At this moment, Mr. Lawless, discovering that the matter was likely to become serious, requested the editor to give up his name as the author of the article, wishing himself to meet the consequences. No sooner was this done, than the Judge issued a rule on Lawless, returuable forthwith, to show cause why an attachment should not be issued : against him for contempt; and also why he should not be suspended from practice. The witnesses declare that the feelings of the Judge continued to rise gradually until they reached the highest point of excitement. The rule against the printer had described the article signed “A Citizen” as a false statement, tending to bring odium on the court, and impair the confidence of the public in the purity of its decisions. Not satisfied with this description, the Judge denounces the article in his rule against Fo as containing “malicious” as well as false statements, and ascribes to it an “intent to impair the public confidence in the upright intentions of the said court, and to bring odium upon the a court; and especially with intent to impress the public mind, and particularly many litigants in this court, that they are not to expect justice in the causes now pending therein ; and with intent, further to awaken hostile and angry feelings on the part of the said litigants against the said court, in contempt of the same court.” Now, who but one blinded by his passions could have * given such a description of this article? Is there any gen tleman within the sound of my voice, who, upon reading the commentary will say it is, in any degree, applicable { Lawless came before the court condemned already. When his counsel attempted to prove that the article was • not a contempt, they were told o would not be per: mitted to argue that question. The Judge would not hear a word upou that subject. He had determined it to be a contempt, and his will was the law. A citizen of the United States is thus brought before a judge upon a criminal charge involving in its punishment consequences of the most serious character, and the lips of his counsel are -sealed upon the principal point of his defence, . Not being permitted to present this view of the subject, they argued the remaining question with great ability, and attempted to satisfy the court that even admitting the arti. cle to be contemptuous, it should be tried and punished in a different manner. Their arguments were all in vain. Now comes the concluding scene, which, to my view, displays the evil intention—the improper motives of the

, Judge, in the clearest light. He was nearly blind, and

is unable to read the article himself. At his request. it was read by the district attorney, paragraph by paragraph, and, at the end of each, the Judge made his commentaries. He was much excited, his manner was very warm, and he was occupied two or three hours in delivering his opinion. And what was its whole tenor Instead of the

calm, dignified, and impartial manner which becomes a

judge upon all occasions, and particularly when he him: self is also the party, we find him heated, acrimonious, and severe. He often used the words “calumniator,” “coutemptuous,” “slanderous,” “libellous,” as applied to Mr. Lawless and his article. He even forgot himself so far as to say that in China the house of such a calumniator , would be painted black, as an evidence of the blackness

of his heart, and as a warning that the whole world migh' avoid him. Throughout, Lawless uttered not a word, no a murmur, in reply. At length, able to endure the abuse no longer, after consulting his friends, he rose, and left the court-house. Had you, Mr. Chairman, been a member of the bar placed in the situation of Mr. Lawless, what would have been your conduct on the occasion Could you, with feelings lacerated and excited to frenzy, have sat silently and patiently, and heard the Judge for two or three hours uttering every odious epithet against you, and even declaring that in China your house would be painted black, as an emblem of the blackness of your heart? At the conclusion of this scene, Mr. Lawless was sent for, and sentenced to be committed to prison for twentyfour hours, and suspended from the practice of his profession for eighteen months. He was thus, by the arbitrary mandate of the Judge, not only deprived of his personal liberty, but of the means of supporting himself and his family. , And yet we are to be told that no malice, no evil intention, dictated this proceeding; that the only motive of the Judge was to preserve the administration of justice from contempt. I have stated the facts, and shall leave every gentleman to draw his own conclusions. I admit that we ought not to impeach a judge simply because his conduct has been illegal. Åi must agree that this may be the case, and yet he may not deserve punishment. But illegal and oppressive proceedings, accompanied by violence of manner, by passion, and by the appearance of revenge, present a very different case, and give birth to very different conclusions. I shall not at present permit myself to be drawn into a particular examination of the cases cited by the Judge. His case stands alone. No contempt whatever exists in the article. It is the mere opinion of a lawyer against that of a judge. From the revolution in England until this day, no case can be cited which bears any parallel to the present. If there be such a one on record in that country, I hope it may be produced. Here I might, and perhaps ought to conclude my remarks, but it seems proper and respectful to the committee that I should state what I believe to be the law in regard to contempts of court. In England, there are two kinds of such contempts; the one direct, the other constructive. From necessity, the power to punish direct contempts in a summary manner must exist in every court of justice. Without such a power, they could not roceed with their business. In its exercise, this power is generally confined to cases of , official misconduct in the officers of the court, to the disobedience of parties, jurors, and witnesses, to its lawful orders and process, and to misbehavior in the face of the court, tending to obstruct the administration of justice. If a witness shall wilfully disobey a subpoena, the court from which it issued must, in the nature of things, possess the summary power of compelling his attendance, and punishing him for contempt, by attachment. So, if a sheriff refuse to obey an order of court, necessity requires the exercise of a similar power. If a by-stander will violate order and interrupt the court whilst transacting the business of the country, self-preservation demands that it should possess the power of summarily punishing such an offender. The Supreme Court of the United States have decided that an attempt to bribe a member of this House, although the offer were made in a letter written at a distance, is a direct contempt of its authority, and may be punished by the House with fine and imprisonment. Constructive contempts are, in their nature, of a ve different character, and, under a free Government, will ever be viewed with jealousy and suspicion. The trial of such contempts, in a summary manner, deprives the accused of the protection of a grand and of a petit jury, and often constitutes the injured party both the judge

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and the avenger of his own wrongs. The judge, when the object of the contempt, becomes himself the accuser, tries the offence, and punishes the offender at his own arbitrary diseretion, with as heavy a fine and as long an imprisonment as he may think proper. Is not this a power in its nature revolting to every freeman? Judges J. not cease to be men when elevated to the bench. They are still but frail human creatures. Is it not then a dangerous, a tremendous power to make any man the judge in his own cause of a contempt committed against himself, and under excited feelings to limit him, in the measure of the unishment, only by his own mercy and his own sense of justice Arbitrary discretion thus takes the place of positive law. ! I shall not affirm that no case exists in which the courts of the United States ought to possess the power of punishing summarily for constructive contempts. I can conceive but of one; and then this power, if it exists, is conferred upon the judge, not to enable him to avenge his own wrongs, real or imaginary, but to prevent injustice between the parties to a cause actually pending in court. If, whilst a cause is depending, particularly a case to be *. byla jury, an inflammatory publication should be made in a newspaper, touching the question to be decided calculated to enlist public feeling in favor of the one party, or prejudice it against the other, the court may possibly, under such circumstances, inflict summary justice upon the author. If such a power does exist in this country, it is the utmost limit. But whether it exists or not, if such had been the circumstances of the case now before the committee, I should have been the last man in this House to recommend an impeachment. In Pennsylvania, where the courts are as much respected as in any other State of the Union, even this power has always been denied; and, in 1809, the Legislature of that State passed an act, declaring that no publication out of court, even concerning a cause depending, should be construed into a contempt, so as to render the offender liable to attachment and summary punishment. They thought it most expedient to leave the party who deemed himself injured, to proceed by indictment or action at law to obtain his redress. I have never known the least inconvenience to arise from this legislative enactment. Long before this act had passed, the exercise of this summary J.'. by the courts of that State, in the case of a lis pendens, had been made the subject of legislative investigation and impeachment. The case of Oswald oc. curred in 1788; and although he had been fined and imprisoned for the publication of a most inflammatory article, in relation to a cause then actually depending before the Supreme Court of Pennsylvania, the conduct of the judges became the subject of a most serious investigation by the Legislature. In the case of the Common wealth vs. Passmore, which occurred in 1802, although he had been the author of a publication which on its face was clearly intended seriously to injure the character of one of the parties to a cause depending in relation to that very case, the judges of the Supreme Court were imached, and were within three votes of being convicted y a majority of two-thirds of the Senate, for fining and imprisoning him in a summary manuer for this alleged contempt. Although no man can read that publication without at once pronouncing it a direct attempt to interfere with the due course of justice, yet thirteen out of twenty-four Senators believed the sentence of the court to have been an illegal, arbitrary, and unconstitutional exercise of power, for which the judges ought to have been deprived of their offices. These cases, I presume, produced the act of 1809. From its language, it does not appear the Legislature entertained the most remote idea that any judge, when the cause was no longer pending, and after final judgment had been rendered, would attempt, as Judge Peck has done, to Punish in a summary manner any citizen who might

think proper to comment upon the opinion which had been delivered. What is the question which Judge Peck has attempted to raise in his defence? Although I deny that any facts exist in this case, out of which such a question can arise, yet it may be well to consider the nature of the power which he contends belongs to the judiciary. I never did expect to hear it seriously and gravely asserted, by a judge of the United States, before this House, that, if a libel were published against him affecting his judicial character in relation to an opinion which he had delivered upon the final decision of a cause, he could, in a summary manner, try and punish the offence according to his own discretion. If such a power exists in any case of libel, it is for the purpose of securing justice to the parties in a cause depending. When the cause is decided, the judge, in relation to it, is placed in the same situation with any other public officer, and must suffer the fate to which we are all subjected. If he feels that his general conduct and character are not a sufficient defence against attacks of the press, like every other citizen, he must seek redress by instituting a public prosecution or a private action. In such a case, he possesses no peculiar privileges. He eannot become the judge in his own cause. Will it be contended upon this floor that such an arbitrary and uncon... exists in the judges? That they, in this respect, stand upon a different footing from all other publie ment Why should they be made the judges of such injuries against themselves, more than the President of the United States, the members of this House, or any other high officer of the Government? What, sir, after a judge has committed his final opinion to the world, upon a great constitutional question—a question in which the rights and liberties of the people may be deeply involved, must the citizen who attacks its doctrines, even in inflammatory language, do it under the o of being fined and imprisoned at the arbitrary will and pleasure of the author? If such be the law, wo be to the man who shall be bold enough to hazard a free commentary upon any opinion of a tyrannical judge. Had this doctrine been established ten years ago, the distinguished individual who is now and I hope may long continue to be the Chief Justice of the United States, if the will had not been wanting, might have imprisoned many of the most distinguished patriots of the country, for severe strictures on his constitutional decisions. It may be worthy of remark, that, if this formidable power does exist in the judiciary, it exists without appeal. The principle is well settled, that in cases of commitment for contempt the injured party has no redress. He must endure the penalty, without the possibility of having his case reviewed by any other judicial tribunal. One might almost suppose, from what has transpired in this case, that Judge Peck had forgotten that there was an American revolution in 1776, and that the federal constitution has guarantied to citizens of the United States soune rights which are not possessed by the subjects of the Crown of England. There was a portion of his cross-examination of the witnesses of so strange a character that I could uot, at the time, conceive what was his object. I shall read a few of his questions, with the answers of the witnesses. He asked, “Was it insisted in the argument that the liberty of the citizen, of speech, and of the press, would be violated by the proceeding contemplated by the rule : " A. “It was.” “Was it insisted that the constitution, and the right of trial by jury, were also violated?” A. “It was.” “Was the proceeding represented to be incompatible with the genius of our Government?” A. “I believe it was.” His defence has cast some light upon the object of these questions. However strange it may appear, it seems he was desirous of casting even a darker shade upon his conduct, that it might more nearly resemble some Eng lish preeedeats, in which he alleges the liberty of the

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citizen, of speech, and of the press, and the right of trial by jury, had been interposed to shield the accused, and interposed in vain. Let him speak for himself. He says— “In the present instance, although the petitioner, Mr. * Lawless, has attempted to give solemnity to his com“plaint, by representing the freedom of the press, the “right of trial by jury, and the liberty of the American “citizen, to have been violated in his person, in the sum“mary punishment for a contempt of court, inflicted on “him, yet your memorialist has no fear of satisfying this “honorable House, if an opportunity shall be afforded “him, that these are the trite topics continually resorted “to, and resorted to in vain, in Great Britain, whenever “the courts of the country have found it necessary to pu“nish summarily a contempt.” Heaven forbid that these topies should ever becometrite in the United States 1 that they should ever lose their protecting energy It is, I believe, admitted, at this day, by all classes of liticians, that the sedition law was unconstitutional. That was the argument in favor of that measure? The Federal Government, said its advocates, must necessarily possess the incidental power of protecting itself against malicious libels; an argument much stronger when appli. ed to that Government, the two Houses of Congress, and the President of the United States, than to Judge Peck. Yet he, for the purpose of preserving his judicial dignity, claims a power which Congress could not confer upon him. If you were to pass an act to-morrow, authorizing the judge to try and punish libels, in cases between third persons, it would be a dead letter on the statute book, on account of its repugnance to the constitution. But yet he claims the power of trying and punishing such offences, even where he himself is the party. The sedition law was moderation itself, compared with this claim. Under its provisions, the accused was entitled to the benefit of a graud and petit jury, and had an opportunity of confronting the witnesses against him, face to face. In the case now before the committee, Judge Peck combined in his own person the offices of the prosecutor, the grand jury. the tit jury, and the judge; and he punished, according to is own discretion, the libel committed against himself. In such a proceeding, it is not wonderful that the guaranties of the constitution, however strong their language, should have been resorted to in vain. The constitution declares that Congress shall make no law abridging the freedom of the press; but Judge Peck punishes the exercise of this freedom even when he himself is the party. Should the committee sanction these principles, the Judge will indeed have established that the constitution, the right of trial by jury, and the liberty of the press, are nothing better than trite topics. Need I urge this argument further On this floor, it is scarce necessary to refer to the English law for the purpose of showing what libels are considered contempts P court in that country. I have examined all the English authorities to which I had access, and I have not been able to find a single case in which their courts have summarily punished a libel, except in causes actually depending. Although the language of Blackstone and Lord Hardwicke is sufficiently general to embrace other cases, I doubt exceedingly whether one can be found in the books, where the doctrine was applied in practice after the cause had been decided. From the very first sentence of the opinion of the Tennessee court, in the case of Derby, it appears that there was a cause pending. What was the particular character of that contempt, is not stated in the opinion; and thus we -- are left wholly in the dark in regard to its merits. It is hardly necessary to remind the committee that I have been arguing the question as if the publication of Mr. Lawless had been libellous against the Judge, instead of being the tame and respectful article signed “A Citizen.”


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I have now said all that I deem necessary. I have spoken with great pain to myself, and I fear to the committee also. Indeed, I have been scarcely able to proeeed at all, as you must have perceived. Under these circumstances, I feel much indebted to the committee for their attention.

Mr. B. concluded by submitting the resolution which had been reported by the Committe on the Judiciary.

[The following speech of Mr. HUNTINGron was inadvert. ently, in compiling the volume, omitted at its proper place, and is inserted here.]

May 18, 1830.

The House having resolved itself into a Committee of the Whole on the State of the Union, and the bill from the Senate, “To provide for an exchange of lands, with the Indians residing in any of the States or Territories, and for their removal west of the river Mississippi,” being under consideration, Mr. HUNTINGTON rose, and said:

If the bill for which this has been substituted, though nearly identical with it, had been accompanied by a report from the committee, confined to a statement of facts and principles connected with what are said to be the objects of the bill itself, he should not have troubled the House with any remarks upon it. I would not, said Mr. H., have mingled in a debate which would then have been limited to the expediency of adopting the legislative provisions proposed to be enacted. But as the committee have reported the bill, “in conformity with the suggestions contained in the report, and to effect the object recommended in the message of the President;" as that report and that message contain sentiments with which I do not accord; as they advance principles which, in my judgment, are not teuable—principles which, if I understand them correctly, deprive the Indian tribes to whom they are applied, of rights well defined, long enjoyed, and secured and guarantied by the most solemn compacts, and the plighted faith of a nation which, hitherto, has been, and always, I trust, will be, jealous of its own honor, and who will not set the first example of a christian nation, who will disregard its own engagements, because they have been entered into with a weak, defenceless, unprotected people, I have not been willing to give a silent vote upon the proposition now before us. My own sense of duty, and the sentiments of a great portion of my constituents, who take a deep interest in this subjeet, demand of me that I should express their opinions and mine, on a topic which enters into the best feelings of our nature, which is connected with the honor of our common country, and the welfare of a race once powerful, but now weak, and looking to us with anxiety, but not without hope for that protection which the faith of the Government is pledged to afford.

Before I enter into the examination of what are called in the report “the pretensions of the Indians, and of the obstacles which are considered as being in the way of their indulgence by the Government,” I solicit the attention of the committee to the language of the Executive, in his message at the opening of the session, and to the construction or commentary which has been put upon it, in another place. I im examine it with all the respect which is due to the Chief Magistrate of this nation, and to the elevated and honorable station which he occupies; but at the same time, and holding his advisers responsible for it, I shall make this examination with all the freedom of a representative of the people sworn to support the constitution of the United States. I noticed with much pleasure in the inaugural address of the present Executive, the fol: lowing expressive sentence: “It will be my sincere and constant desire to observe towards the Indian tribes within our limits a just and liberal policy; and to give that humane and considerate attention to their rights, and their wants, which are consistent with the habits of our Govern

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ment, and the feelings of our people.” How far this pledge has been observed, will be seen in the progress of this discussion. In the message, Congress are informed that the President has been called on by a portion of the Southern tribes for protection, in consequence of the extension by the States of Georgia and Alabama of their laws over these tribes; that, in answer to this application he stated to them that their attempt to establish an independent Government would not be countenanced by the Execu tive of the United States; that it was too late to inquire whether it was just for the United States to include these Indians and their territory within the bounds of new States, whose limits they could control; and that they should be distinctly informed that if they remained within the limits of the States, they must be subject to their laws. The same opi nions are advanced in the letter of the Secretary of War to the Cherokee delegation, dated April 18, 1829, in which they are told, by order of the President, that the State of Georgia has extended over their country her legislative enactments, in virtue of her authority as a sovereign, independent State, which she and every State embraced in the confederacy, from 1783 to the present time, when their independence was acknowledged and admitted, pos. sessed the power to do, apart from any authority or opposing interference by the General Government. In these documents, then, we find the legislation of Georgia and Alabama over the Indian tribes within their chartered limits, sustained, as of right, and an explicit avowal made that the President will not interfere to prevent it. And what is the construction put upon this language Not merely that the operation of the State laws is not to be op posed, because the guaranties contained in treaties with the Indians do not require it; not that, if they did require it, the existing laws are insufficient for that purpose, but * because,” as stated in the report to the Senate by the Committee on Indian Affairs of that o “in the opinion of the Executive, constitutional objections exist, which it is not in the F. Congress to remove, by any law which they could enact" . If this be the right interpretation of the views, entertained by the Executive, the doctrine is advanced, that treaties made with all the forms and solemnities known to the constitution, ratified by the President with the consent of his constitutional advisers, and thus made, so far as the executive branch of the Government can make them, the supreme law of the land, and declared so to be by the constitution, are not to be regarded and enforced, if, in the opinion of the President, such treaties contain provisions inconsistent with wheth, considers the legitimate rights of the States; or, expressed in other words, if the Executive deems a law of Congress, or a treaty duly ratified, to be an encroachment upon state rights, or for any other reason, an excess of delegated power, he is at liberty to refuse his aid in caus, ing them to be "faithfully executed." Is this a sound interpretation of the duties which the constitution has devolved upon the President Is he made the judge of the extent of the powers of Congress, or the treaty-making wer, after that power has been exercised in the manher prescribed by the constitutions, Has he been constituted, in such cases, a judge, to determine whether treaties are constitutionally binding? whether laws which have been enacted are void, for want of power to enact them t If so, there seems to be no necessity for the clause in the constitution, which provides that “the judicial power shall extend to all cases in law and equity arising under the constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” If so, there is no division of the department of this Government into executive and judicial: the latter, for all prao. tical purposes, is annihilated; and the provision, that a bill which has been returned by the President with objections, reconsidered, and then approved by two-thirds of both

Houses of Congress, shall become a law, is a dead letter. The President, if he can lawfully refuse to execute a law, or enforce the provisions of a treaty, because he has eonstitutional objections or scruples, constitutes himself the executive and judicial departments of this Government. Such, in my judgment, is not his prerogative; and I believe it is the first time in the history of this nation, since the adoption of the constitution, that opinions like these have been advanced. Sure I am that they were not the opinions of any of his predecessors, or of those wise men who framed the constitution, or of the people of this country; and I have deemed it indispensable to advert to them, lest it might be thought from silence that they met with universal approbation. The Executive has no constitutional right to say he will not execute a law, because he considers it void for want of authority to enact it. No such discretion has been confided to him; I trust it never will be; and if his scruples are such as to deter him from enforcing it, let him resign the trust which has been confided to him. This is the only course he can adopt under such circumstances. The legislative and †† are powerless, and the Government is a rope of sand, if such opinions are entertained and acted on. Every law may depend for its execution upon the will of the Executive. And in these days of strict construction, it may be feared that few legislative enactments will pass unhurt through this ordeal of Presidential discretion. Having thus, very briefly, adverted to the opinions entertained and avowed by the Executive in regard to the “pretensions” of the Indian tribes, on the supposition that their construction of the treaties made with them, and of the laws enacted to regulate the intercourse with them, is correct, I proceed to consider the great questions involved in this discussion. The report denies to the Indian tribes any title whatever to the lands which they occupy within the chartered limits of any State; and asserts a right in the States within which they are located, to extend their legislative enactments over them, and, consequently, a power to annihilate their political existence as communities, to be governed by their own laws, usages, and customs. Nor does the Executive, in his message, acknowledge any title to the lands as subsisting in the tribes. In the letter from the War Department, before referred to, the Secretary says, “an interference to the extent of affording you protection and the occupancy of your soil, is what is demanded of the justice of this country, and will not be withheld;" though he adds what would seem to make this interference of little, if any use, looking very much like “keeping the word of promise to the ear, and breaking it to the hope.” It is in these words: " Yet, in doing this, the right of permitting to you the enjoyment of a separate Government within the limits of a State, and of denying the exercise of sovereignty to that State within her own limits, cannot be admitted. It is not within the range of power granted by the States to the General Government, and, therefore, not within its competency to be exercised. No remedy can be perceived, but a removal beyond the Mississippi, where alone can be assured to you protection and peace. To continue where you are, within the territorial limits of an independent State, can promise you nothing but interruption an disquietude.” And the President, in his message, speaking in reference to the same tribes, says; “Though their emigration should be voluntary, yet it seems visionary to suppose that claims can be allowed on tracts of country on which they have neither dwelt nor made improvements, merely because they have seen them from the mountain, or passed them in the chase.” It will be observed that this language is spoken of the Cherokees, who have dwelt on, and ..f. lands; and seems, at least, to imply that they have not to the lands within their boundaries. But it is unnecessa. ry to make further reference to the message. I shall con

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tent myself with referring to the report; and, so far as I am able to comprehend it, there is not only no acknow. ledgment of any title in the Indian tribes, but the spirit of every part of it is utterly at war with any such acknowledgment, The committee say, (p. 4) “It is certain that possession, actual or constructive, of the entire habitable portion of this continent was taken by the nations of Europe, diVided out, and held originally, by the right of discovery as between themselves, and by the rights of discovery and conquest, as against the aboriginal inhabitants. The pre: tensions of the Indians to be the owners of any portion of : were wholly disregarded by the Crown of Engud.” Here the opinion is advanced, that the Crown by discovery and conquest obtained either the possession, or right of possession, of the whole of the soil then and now occupied by Indian tribes, and admitted no right in these tribes to any portion of it. The title and the possession being thus in the Crown, it parmitted the Indians, in all of them, to be governed or otherwise disposed of by the colonial authorities, without any interference on its part, until within a short period before the revolution.” And in all the acts, first oft. colonies, and afterwards by the States, the fundamental principle that the Indians had no rights, by virtue of their ancient possession, either of soil or sovereignty, has never been abandoned, either expressly or by implication. The principle was adopted (p. 8) that the Indians had no Fo interest in their hunting grounds; their right to old their reserved lands can be supported on no other round than the grant or permission of the sovereignty or tate in which such lands lie. This was in the Crown before the revolution, and in the States after that event, succeeding, as they did, to the sovereignty over all the lands within the limits of their respective charters. The Indian boundaries were cousidered temporary. The trea: ties made with them were but a mode of Governmeut and a substitute for ordinary legislation, which were from time too time dispensed with. (P. 12.) Territory and jurisdiction, considered in reference to a State or a nation, are inseparable; the one is a necessary incident to the other; and as a State cannot exist without territory, the limits of that territory are, at the same time, the limits of its jurisdiction. The policy of Georgia (p. 13) has always been to contract the Indian reservations, gradually, within such reasonable limits, that no part of the country should remain uncultivated. Her policy in this respect was a part of her rights; any thing which tends to defeat its operation, is a deprivation of right. It is understood that neither Georgia nor any other State will attempt to appropriate the lands within the Indian reservations without their consent. Can it be doubted, after these quotations, that the report denies to the Indians the right both of sovereignty and soil? It would seem not: and supposing this to be its meaning, and as expressive of the opinions of the counimittee, which we are called upon to adopt or reject, I proceed to an examination of the nature and extent of the i. title to the lands within their boundaries. In my judgment, neither of the positions assumed by the committee in their report is tenable. I think it capable of demonstration, that the right of the Indian tribes to the lands which they occupy is paramount to, and exclusive of all others, whether nations, States, or individuals; it is a right to occupy, enjoy, possess, and use, according to their own discretion, indefinitely and forever, and, for all practical purposes, is absolute. The only restriction is that of alienation at pleasure. This power of alienation is not, and cannot be claimed by these tribes: for the right of discovery, in the first instance, and the voluntary comact of the tribes afterwards, gave to the Government of the {. States the ultimate title, charged with the Indian

of acquiring that right. In other words, the Indians have the sole right of occupancy. To that they have a just and legal right, and it includes the use in such a manner as they please, and is indefinite in duration, and of which they cannot be dispossessed, except by cession or compact. The Government have the exclusive right of purchase, and the ultimate right, whenever the possession becomes vacant, by voluntary dereliction, or by the extinction of the tribes. I think, also, it can be shown that these tribes are separate distinct communities, wholly independent of the States; not subject to their legislation, and possessing the right of self government—the right to be governed by their own laws, customs, and usages; and under no restraint, except such as they have imposed upon themselves, in their treaties with the United States. The foundation of their title is occupancy. They have been in possession, claiming the right to the soil, from our first knowledge of them. They were found here when this country was discovered. They, and they only, have possessed it, and this occupancy has been from time immemorial. Writers on jurisprudence agree in the proposition “that the original right to all kinds of property arose from preoccupancy, and that in a state of nature every one might possess himself of, and retain, any vacant subject. The first occupant had a right to grant, cede, or transfer the subject he had possessed himself of to such persons, and upon such terms, as he thought proper: and if, before such grant, cession, or transfer, the occupant died, his property descended to his children The right of transmitting property always resided in the owner, and civil institutions only prescribed the mode of carrying that right into effect. In that period of society, when countries were formed, and their boundaries fixed, we find that different districts were appropriated to the native owners, the first occupants, or, in case of vacant or derelict lands, to the first discoverers.” What rights over the lands inhabited and possessed by the Indian tribes, did the Government making the first discovery of them acquire Were they such as to annihilate the previous existing title of the aborigines to them 1 Not at all. The discovery conferred the right of making settlements, or forming establishments, whenever the prior right of occupancy was lawfully exlinguished; connected with the right of pre-emption, and the ultimate right in fee, whenever the Indian tribes should become extinct. The power to exclude other nations from occupying, or making purchases of the natives, was an incident to the discovery, and was afterwards conferred by the Indians in their treaties. It will be obvious that this view of the subject is correct, by referring to the uniform course adopted by the Crown of England, by the colonies, by the States, after the revolution, and by the States and General Government, since thato: up to he present time; confirmed by repeated adjudications of the highest judicial tribunal of this nation. The first attempt to dispose of a whole continent, without reference to the rights of the aboriginal inhabitants, was made in 1493, the year after the discovery of America, by Pope Alexander the Sixth, who gave it to the Crown of Spain, on the assumed principle that infidels were unjust possessors of the lands on which their. Creator had placed them. This grant was accepted, contrary to the advice of the civilians and Crown lawyers of Spain; and one of the bishops, in a treatise dedicated to Charles the Fifth, holds this strong language: “The natives of America having their own lawful kings and princes, and a right to make laws for the good government of their repective dominions, could not be expelled out of them, or deprived of what they possess, without doing violence to the laws of God, as well as the laws of nations.”

right of possession, or occupancy, and the exclusive power. The English princes, though they did not acquiesce in

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