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FEB. 10, 1825.]

On the Judiciary.

[Senate.

tone to public sentimer.t, and diffuses that moral strength be extended to these states, by appointing additional which gives nerve to physical energy. So far as pro-judges; or, that the system should be changed. He perty is in question, there prevails a firm, a deep-rooted urged the necessity of carefully considering the subject, confidence, fixed in every bosom, in reference to the in all its bearings, before coming to a decision; for, on opinion of the Courts. My object is to place on a firm this decision would depend the character of the judicial basis a like confidence, where any judicial question may system of the United States for years to come, perhaps involve the sovereignty of the states. This bill will ac- forever. He was duly sensible of the claims these states celerate the accomplishment of this most desirable ob- had upon Congress, and the necessity of some provision ject. It would be a waste of time to offer remarks being made for them, but suggested whether it would relative to the expense of extending the system as not be more advantageous to defer the subject till the now proposed. No branch of Government is more vi- commencement of the next session, as there would be tally, more essentially important, than the administration so little probability of its passing through in the present, of justice. The rights of personal liberty, the rights of from the very short time that remained. private property, are involved. It is the repeller of persecution, the shield to innocence. The revenue of the nation amounts, annually, to upwards of twenty millions of dollars of this revenue we annually appropriate less than one hundred thousand dollars to the administration of justice, inclusive of contingent expenses, while million after million for other objects are expended. The appropriation for diplomatic intercourse with foreign powers constitutes a larger amount. It is presumed that no objection will be made by any, as to the small additional expense, which secures to the West equal judicial representation in the Supreme Court of the Union, which secures to us equal advantages.

Mr. KELLY moved the following amendment, which was agreed to:

Mr. TALBOT, of Kentucky, was against the postponement, on the ground, that it had been before the House the whole of the session, and every gentleman wishing to take part in the discussion, had had full time to prepare his arguments. The Senate, he imagined, must be fully aware of the deep interest existing in the Western States on this subject. They had been denied the privilege enjoyed by every state in the Union. This bill had been thoroughly examined by the Judiciary Committee, and amendments had been made, and now a postponement was proposed. He thought they ought not to shrink from an important discussion, because the time was short, and expressed his hopes that the affair would now be settled, or at least make some progress. Mr. HOLMES, of Maine, offered a few remarks, ex

the delay of justice in the Western states, and that some measures for the ir relief ought to be decided on.

"And all suits at law, and in chancery, and all crimin-pressing his opinion that the present system operated to al prosecutions, pending in the district courts, at the passage of this act, and not exclusively cognizable in the district courts, by the laws of the United States, shall be transferred for trial to the circuit courts herein established, for the respective districts in which said suits and prosecutions shall be pending; and the clerk of the said district courts shall transmit the original papers, together with a transcript of the orders and proceedings, had in the said causes and prosecutions, respectively, to the clerk of said circuit court."

Mr. BARBOUR offered his views on the subject at considerable length, and dwelt with much force on its importance, and expressed his conviction that the delay might be productive of some inconveniences, yet they would be nothing to the injury that might be occasioned by acting without great deliberation. A Judge of the Supreme Court could not be unmade, because that court was established by the constitution itself. Mr. B. Mr. KELLY observed, there were a class of cases, expressed the high interest he took in the prosperity of those involving a sum, beneath $2,000, from the deci- the Western states. He allowed the justice of their sion of which there was no appeal. The great object claims on the present occasion, and thought the only dif was to do justice, and then to do it in as satisfactory a ficulty with Congress would be, what would be the mea. manner as possible. There were cases of the descrip- sures which could be adopted to respond most advantation he had mentioned, in which the parties thought in-geously to those claims. There was, Mr. B. said, a justice had been done them, and it was a matter of importance to allow them a writ of error or appeal to the circuit court.

He had prepared an amendment to provide for that class of cases, which he then offered, but subsequently withdrew. It was as follows.

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Sec. Be it enacted, That any sentence, judgment, or decree, that shall have been rendered in any of the said district courts, at the passage of this act, which could have been revised by appeal, or writ of error, in the circuit courts herein established, if said courts had been in existence at the rendition of said judgment, sentence, or decree, may, in like manner, be revised, in the said circuit courts, provided the same shall be carried up for that purpose, within twelve months from the passage of this act; and it shall be the duty of the clerks of the said district courts, on the application of the party aggrieved, by himself or counsel, to allow an appeal or writ of error, at the option of the applicant, and send up a certified copy of the record, as required by law in similar cases; and, if bond and good security be given for the prosecution of said appeal, or writ of error, (which the clerk of said district court is hereby authorized to take,) the same shall operate as a supersedeas; but if no such bond be given, the execution of the judgment shall not be suspended thereby

Mr. VAN BUREN agreed that something ought to be done, and they must adopt one of two courses; either the present system, as a system, should be retained, and

great difference of opinion on this subject. He had maturely considered it, and had come to the conclusion that it was necessary to have the Supreme Court separated from the Circuit Court. By the present system, the Judges of the Supreme Court were required to perform circuit duties which were impracticable. Theory and practice had proved that none but men of the highest reputation and long experience should occupy the Supreme Bench; and was it reasonable to suppose that an old man could perform the duties of a Judge in the supreme Court, and then sustain the fatigues of travelling through the country as a Circuit Judge?

Mr. B. then detailed, at some length, the advantages which would arise from giving up the District Court system, and converting these Judges into Judges of the Circuit Courts. The Supreme Court, by being inde pendent, would have full time to deliberate on the important causes which necessarily came before them, without subjecting them to that which he thought was impossible. He did not think the expense was worthy of consideration. Let there be a good judicial system formed, in coincidence with the exigency of the occa sion, so as to satisfy every part of the Union, that their interests had been foreseen and provided for, and he cared not for the dollars and cents involved in such a course. Mr. BARBOUR then submitted the following resolution.

Resolved, That the bill be recommitted to the Judiciary Committee, with instructions to amend the bill so

Sen. & H. of R.]

On the Judiciary.-The Creek Treaty of 1804.

as to exempt the Judges of the Supreme Court from performing circuit duties, and to increase the number of Circuit Judges.

Mr. JOHNSON, of Ken. again addressed the House in favor of the ten Judges, and earnestly hoped that, as they had justice on their side, no further opposition would be made the progress of the bill.

[FEB. 10, 1825.

tion to the recommitment of the bill, but he had objec tions to the latter part of the resolution. If the proposition were divided, then the sense of the Senate would be tried by a comparison between the bill proposed and any other that might be substituted. If the latter should be the case, then he should take an opportunity to submit a plan to the Senate, which he thought preferable Mr. HOLMES, of Maine, expressed his fears that, if to that of his colleague-which was, that the committee the Supreme Court were located within the District of to whom the bill should be recommitted, should be inColumbia, they would become more national. At pre- structed to report a bill providing for a number of Cirsent, they mingled with the people, they understand cuit Courts in the Western country, as many as their nethe laws of the state in which they lived, at least, and cessities might require, and to appoint a number of were they to locate in the District, that connection judges for these courts, which judges should not be would be liable to be broken, and they would be wean-judges of the Supreme Court. He would make another ed from that affection for the state government they had proposition on the subject: when a vacancy should_ochitherto had. He thought they were national enough cur on the bench of the Supreme Court, as it now exists, already, and therefore objected to their being introdu, then the vacancy might be filled by the new made Circed into the District. cuit Judges in the Western country, and the circuit sys tem should be introduced into the Eastern country. This, Mr. T. said, he should sustain, if he had an oppor

Mr. H. expressed his views at some length on this subject, and the interest it might have in inducing them to favor the National Government; and, after some furtunity so to do. ther observations on the tendency of the present bill, concluded by observing, that, of the two schemes proposed, this was the best, with all its imperfections, and would not radically alter the present judicial system.

Mr. JOHNSON, of Kentucky, hoped no further steps would be taken, till the gentleman from Virginia should have delivered his views on the subject, and moved that the Senate adjourn.

The Senate then adjourned.

HOUSE OF REPRESENTATIVES-SAME DAY. Mr. JENNINGS, of Indiana, submitted the following: Resolved, That the Committee of Ways and Means be instructed to inquire into the expediency of releasing by law all claim which the United States have upon Maston S. Clarke, of the state of Indiana, as one of the securities of the late Collector of the Internal Revenue of the late territory of Indiana."

Mr. BARBOUR again rose, and entered into an argument to show the superiority of his plan, as it tended to produce equality throughout the Union, and contended that his friendship for the people of the West was sufficiently evident, from his having proposed a system which would tend to improve their condition more than that proposed by themselves. He again argued on the imposs.bility of men, advanced in years, being able to undertake a journey of two or three thousand miles; and as proof of the inconveniences attending the present system in the West, adverted to the fact that had been stated, that there were 900 cases on one docket in Kentucky, In offering this resolve, Mr. J. said, that the indiviand exhibited a striking view of the evils that must ne-dual referred to in the resolution he had presented, cessarily be produced by this delay, in the administration of justice, where these judges were obliged to travel with such haste, and preside in so many places. The decisions they pronounced were without confidence, and produced a stream of litigation which concentred in Washington, and thus the decket of the Supreme Court was continually accumulating.

was allied to one of the most numerous and useful families in the Western Country. That he had been one of the early pioneers of the Western frontier, participated in most of the conflicts produced by the wars with the Indians, and had acted a conspicuous part in the battle of Tippecanoe, as well as on other similar occasions; and who, by his perseverance and enterprize, had posMr. B. then referred to the fact that, in Virginia, their sessed himself of a comfortable competency for his nuSupreme Court was occupied the whole year round in merous and rising family. This, said Mr. J. was his sitdeciding cases, and inquired how it could be possible uation when he became one of the securities of a late that the Supreme Court, which sat for a few weeks only, Collector of the Internal Revenue of the late Territory could possibly dispose of all their business, consisting of Indiana, who has since, by a decision of the District generally of causes of a most important character, and Court, been found a delinquent to a considerable amount urged this as one of the most striking proofs of the ne--the result of which has been, that Col. Clark has been, cessity of exempting the judges from circuit duty, so that the stream of justice might not become clogged.

Mr. B. then answered, at considerable length, the several objections of the gentleman from Maine, (Mr. HOLMES.) He did not, he said, propose to locate them in the District-he was indifferent where they resided, so they performed their duty-but, supposing that he had proposed so to locate them, he said he was ignorant of the wonderful power of the air of Washington, and appealed to the gentleman himself, (Mr. H.) as to the effects he experienced from it. He thought there was no danger of their being biased in their decisions. They had passed the fiery ordeal of forty years' expogure to the eyes of the country; they were invested with their power by the Supreme Magistrate; and must receive the sanction of this body-the guardians of the state; they had not only the character they had previously acquired, to maintain, but the solemn injunctions of their high office to support; they were exempt, as far as men could be, from the little passions of the day, and yet these were the men who were to be tainted by the air of Washington; this was an idle fear.

Mr. TAZEWELL, of Virginia, said he had no objec

by the operation of law, stripped of all his property,
both real and personal, not leaving to him so much as
the sword he had honored, or his tomahawk and scalp-
ing knife, which had been his constant companions as a
private soldier. He hoped the resolution would be
adopted.
The resolve was agreed to.

THE CREEK TREATY OF 1804.
On motion of Mr. M'LANE, of Delaware, the House
proceeded to consider the bill "making further appro-
priation for the military service for the year 1825,"

Mr. FORSYTH, of Georgia, moved to recommit the bill to the Committee of Ways and Means, with instructions to strike out the appropriation of $20,000, for the arrearages due under the treaty with the Cherokees, of 1804, and ratified in 1824, and also the appropriation of $1000, for the annuity under the same treaty for the present year. Mr. F. remarked that he had the honor to call the attention of the House, at an early period of the present session, to the subject now before it, by a resolution calling on the President of the United States for information respecting this treaty. The information

FEB. 10, 1825.]

The Creek Treaty of 1804.

[H. of R.

Nor was

any letter likely to be written to him on the subject, inasmuch as it is extremely probable that, at the time of the making of the treaty, he was in Washington, and it was not laid before the Senate, because he refused to do so. He could not in fact have done so, in consistency with his duty. Five thousand dollars had already been paid, which alone was as high a price as had ever been given for the cession of Indian lands; and the course which the President probably took, was co notify the Indians, that, if they were satisfied with this sum, they might retain it, but, if not, the United States would give up the land, and they must return the money.

was received on the 27th December, and was referred our Indian agent been searched? And if any accito the Committee of Ways and Means. The treaty, dent has happened to destroy this, why are not his though made in 1804, was not touched for twenty years, private papers referred to? It is manifest, from the face and was not ratified until both the Commissioners who of the papers, that Mr. Jefferson has no distinct recolmade it were dead, and all knowledge of the transac-lection on the subject, and has been deceived by the aption lost at Washington. In 1824, the Cherokees came plications made to him. The letter from that illustrious to the Government and claimed the ratification of the man is written under the supposition that he has comtreaty. The Senate had the subject for some time un-mitted an error, and it is such as might, under that supder consideration, and at length concluded to ratify it, position, be expected from him. He has been unjust to on the ground that its not having been ratified at an ear- himself; and one part of the anxiety which I feel, arises lier period, was wholly owing to accident. He should from a desire that this injustice may not be done to him. now ask leave to call the attention of the House to the If he had duly reflected on the price which this treaty documents received from the Executive Department, engages to give for the land, he would at once have perfrom which he hoped to shew that the ratification of the ceived that there was good reason why the treaty was treaty had not been accidentally omitted, but that it was not ratified but forgetting this, he supposes that the the duty of the President to refuse to ratify it; that the non-ratification was the effect of mere accident and incircumstances of the case had so greatly changed since advertency. The reasons of this supposition he states 1804, that the ratification of this treaty, in 1824, was in to be, first, that he can find no letter addressed to him fact a fraud-the land having been already, by a previ- on the subject, although he has kept an accurate list of ous treaty, transferred to the United States. It appears all the letters received and written by him for many that instructions were given in 1804, to Return J. Meigs | years; and the second is, that he perceives, from a list and D. Smith, to enter into a treaty with the Cherokee of papers presented to the Senate, that this treaty was Indians, they went accordingly to the Cherokee coun- never laid before them. try and made a treaty, by which a tract of land four miles Now, sir, the conclusion of Mr. Jefferson, from both in width and twenty-four miles in length, containing these reasons, is certainly erroneous; for, in the first about sixty-three thousand acres, was ceded to the Unit-place, the treaty itself was never sent to him. The whole ed States on condition that the Cherokees were to re-intercourse was with the War Department. ceive $5,000 in cash and an annuity of $ 1,000, which at five per cent. was equal to $ 20,000. So that the land cost the United States near forty cents an acre. Now, he would refer to all previous treaties, and indeed to all treaties ever made by this Government with Indian tribes, to shew, that by no other treaty was the land ever purchased of them at a rate exceeding seven cents the acre. He took it for granted, that in 1804, this treaty had been presented to the President; but that officer, perceiving that five or six times the usual price had been given for the land, refused to ratify the treaty. It certainly was his duty so to do. He thought that the testimony of the Cherokees themselves went far to shew that this was the Colonel Meigs, who then presided over the Cherofact. In their application of the 19th of January, 1824, kees, and was the agent of the United States, for that to have the treaty ratified, they say that the reasons why nation, was a man of the purest character; the annuity it was not, were not fairly known to them."-Not fair for that tribe must have passed through his hands, and it ly known! It appears then that some reasons were giv- would have been his duty to call upon the Government en. But, if there could be any doubt of this, it is effec- every year for the annuity stipulated in this treaty, if he tually removed by the concluding passage of their ap- or that nation had understood it to be binding on the U. plication, in which they hope that "their Great Father States. He never has done so, nor has the subject been will reconsider the subject." This amounts to a decla-touched while this virtuous citizen lived. To my mind, ration, that he had considered the treaty, and had refus- said Mr. FORSYTH, this is, of itself, sufficient evidence; ed to ratify it, and they now asked him to reconsider it. for I am morally certain that that man would have called He had another reason for believing that the treaty on the President to perform the engagement, if he had could not have been ratified in 1804. This tract, well understood the President to be bound. But this subject known in Georgia by the name of Wafford Settlement, presents itself before us in another, and a graver form. had been settled by citizens, who claimed under grants The President of the United States has conceived himfrom the state, made on the basis of a treaty between self at liberty to refer to an illustrious individual, now the state and the Cherokees, before the adoption of the retired from office, to know whether he did, or did not, Federal Constitution. Mr. F. here quoted the Sd article submit this treaty to the Senate, and whether it was, or of a reaty made at Augusta, in 1783; and from which he was not, ratified. argued that this settlement lay within the bounds of Geor. gia, at the date of the constitution. These grants had been judicially investigated and sustained by the courts of the state. The question, therefore, for the President to decide, was, whether, for the sake of correcting an error in a subsequent treaty, he should give $25,000 for land, which, in fact, belonged to Georgia in 1783; whether he should pay an enormous and unprecedented price to the Cherokees, for what did not, in fact, belong to them. No evidence had been received from the Executive Department, to show in what manner this transaction took place. We are told that the Government has appealed for information to the recollections of Mr. Jefferson. Sir, is this a source from whence documentary evidence is to be drawn? Are we to go to the recollection of a former venerable chief magistrate, illustrious as he may be? Why has not the correspondence with

Sir, I ask this House whether such a power resides in the President of the United States? Whether he can place, on the vague recollection of a former President, the propriety of ratifying a treaty which is to bind the nation? On whom does the responsibility of treaties now rest? On him who is now President, or on the person who was President in 1804? The Cherokees now come and ask him to reconsider the determination of his predecessor, with respect to this treaty; any arrangement which would justify the President of the United States in doing so, would justify him in laying before the Senate any treaty that had been rejected by his predecessor. This, however, is somewhat foreign to the subject immediately before us. Let us now look at the contract made by a treaty with the Cherokees in 1817, and completed in 1819. By this a large territory is ceded to the U. S. much larger than that for which this appropriation

H. of R.]

The Creek Treaty of 1804.

[FEB. 10, 1825.

is to be made, and extends beyond and around it. By made, the Indians abandoned their land, and the settlers this treaty the Wafford Settlement is conveyed to the were suffered to remain, and others to enter. The InU. S. if it never was before? for it will not be pretended dians executed the treaty in good faith, and the only that when a large tract is conveyed by a treaty, a small question that we ought to have any difficulty in deciding, tract in the centre of it is to be excepted from the con- would be, not whether they are entitled to receive the veyance, unless express stipulation to that effect is con- arrearages of the annuity, but whether we ought not to tained in the treaty itself. The latter treaty establishes allow them interest for the whole time it has not been a new boundary line. It makes full cession to the U. paid. The committee propose only the principal, withS. and now, in 1824, they claim a stipulation from the U. out interest. Supposing the treaty had been ratified in S. to give them an annuity for granting a part of this 1806, would any gentleman then have said that the Govery land. Such are the circumstances on which Ivernment ought not then to execute it? Why was it ground my opposition to this item of appropriation. I not ratified? It was not the fault of the Indians, but of feel no great zeal on the subject, but have considered it the United States. The documents will show that it was my duty to lay the subject before the House. the fault of our own Government. Mr. Jefferson, in his letter, so far from depending on loose recollections, says, that the treaty ought to have been ratified. [Here Mr. M'I.. quoted the letter.] He declares that the treaty is genuine. The letter of Col. McKee, now a member on this floor, proves that the treaty was made, for he was a witness to it. Mr. Jefferson says that the transaction is the treaty itself was found in the War Office. Mr. Jefferson expressly says, "the treaty had all my approbation." The treaty then has been fulfilled by the Indians; it was not ratified, because it was mislaid; it has since been found, and has been ratified, and, under these circumstances, the House is called to appropriate. The gentleman from Georgia asks if the President ought to go to Mr. Jefferson for his recollections on this subject? Sir, this question might have been proper enough in the Senate, and at the time when the ratification of the treaty was under consideration, but it certainly is not a question for us to settle now. The President went to him as to a creditable and highly respectable witness; but, as the treaty has since been ratified, the question is precluded. The gentleman says that this tract is included in a subsequent grant of the Cherokees. That is true-but was the price also included? A negotiation was set on foot with that tribe, for a large tract of land, and this tract happened to lie within the boundary; but is it just that it should not therefore be paid for? If the arrears are great, it is not the fault of the poor Indians; every gentleman knows how humble is their situation; they were, in a manner, forced into the sale of their lands by the interposition of our troops. What means had these poor creatures to enforce a ratification of our treaty The treaty has at length been found, and has been ratified. And now, our only duty is, to make all haste to do them justice.

Mr. M'LANE, of Delaware, observed in reply, that it was his duty to state the facts on which the Committee of Ways and Means had recommended an appropriation to carry this treaty into effect. It might be considered a matter of just surprise, that it should be asked whether this House will appropriate a sum of money, solemnly and explicitly pledged in a treaty, solemnly and deliber." well remembered," and it turns out to be a fact, that ately ratified. The subject was important in its bearings, and he trusted that the House would deliberate before they established a precedent which might have important consequences. In order to the successful carrying on of the system of our Government, it was necessary that each branch of it should confine itself to its own sphere, and should give to the other branches that degree of importance which was their just due. The Constitution had assigned to the President and Senate the power of making treaties, whether with foreign nations or with the Indian tribes. When a treaty had been constitutionally made and ratified, this House is bound, by the strongest obligations, to make the necessary provision for carrying it into effect. He would not say that this duty was always and absolutely imperative. Yet the reasons must be strong indeed, which justify the House in a refusal to do so.

The present treaty had been made, as was stated, in 1804; but, from causes which fully appear from the documents submitted to this House by the Executive Department, it was not ratified until 1824. As soon as it was ratified, a communication was addressed, by the Department of War, to the Committee of Ways and Means, requesting an appropriation to carry it into effect. The committee hesitated in complying; they saw that the ratification had not taken place till 20 years after the treaty, and there were arrearages of $20,000. They wished to have this more fully accounted for; and, accordingly, no appropriation was presented to this House Mr. FORSYTH again rose, and observed, that a curiat the last session. The Executive Department was ous question presented itself in relation to the different called on for information: a communication had since branches of this government, viz: whether, when the been made, and laid before the committee, by which President and Senate have entered into a contract, this their doubts were entirely removed; and, in consequence House may refuse to carry it into effect. His opinion on of which, they now recommend the appropriation. The this question was well known. I hold not only that this Cherokees were in possession of this land within the li- House has the power, but that it is its duty, to inquire mits of Georgia, in 1804. Their lands were intruded on into the propriety of such contracts, and, whenever the by citizens either of that state or some other; and an public interest requires it, to interpose and prevent application was, in consequence, made by the Cherokees their fulfilment. He took it for granted, if this House to the United States to dispossess the intruders. The was satisfied that the demand to carry the treaty into ef. Government of the United States felt that it was their fect was a gross fraud on the United States, it will not duty to do so. Orders were issued accordingly, and, give the means of fulfilling the treaty. For himself, he military force sent to put them into execution. When had no doubt that the whole originated in gross error, the troops arrived on the spot, they found that the set- and time should at least be allowed for a farther investi tlers, for the most part, had crops then growing, and not gation. The gentleman from Delaware laid the whole gathered; and the officers interceded with the Chero- stress of his argument on Mr. Jefferson's letter, and Mr. kees to delay the removal of the intruders until their Jefferson's recollections and opinions seemed to be the crops could be gathered in, and finally succeeded in per- ground on which the President an I Senate went, in rati. suading them to sell the land to the United States. The fying the treaty. Mr. Jefferson says, indeed, that the Government accordingly issued a commission to Messrs. treaty had his approbation, but justice to that distinMeigs and Smith, to negotiate for the purchase. A trea-guished officer requires me to come to an opposite con. ty was held, in which the Indians agreed to sell, and the commissioners to buy their land. "The terms were as have been stated. They were to receive $5000 in cash, and an annuity of $1000. As soon as this treaty was

clusion, and from the face of his letter, I deny that this treaty had his approbation. The price paid for the land is equal to its value at this day! It is six times as much as has ever been given for any Indian land! Two ques

FEB. 10, 1825.]

The Creek Teaty of 1804.

[H. of R.

tions were asked Mr. Jefferson; the first 1s, Whether the tion required the exercise of any powers confided to treaty is genuine? He says that it is, and of this there this branch of the constitution. But, in making the mocan be no doubt. The second is, Whether the omission tion, which led to the operation of the powers of the to ratify it was accidental or intentional? To this he re- House, he had never pretended that it ought to be explies that he does not know. But, actuated by a desire ercised in any case but as a check upon some abuse of to take to himself every degree of blame which can just-power, or to avoid a manifest and great evil to the state. ly attach to him, he represents it as accidental. But the The same ground was taken, as he understood, by all treaty never had, or could have had, his approbation. those who supported the powers of the House on that It is not correct that the lands of the Cherokees were in- occasion, and that no one pretended that, in every stiputruded upon by the citizens of Georgia, nor were they tion, made by the President and Senate, under the trea in possession of the Cherokees, when the treaty was ty-making power, which came before this House, they formed, but they were in dispute, and, as he had already were to inquire into the mere expediency of the stipu stated, were occupied by persons whose claims, founded ation; and, if it were such as they might not have been on grants under the treaty of 1783, have undergone a inclined to make, that they were on that account alone, judicial investigation. This fact the gentleman from justifiable in refusing their agency in carrying it into efDelaware did not notice. The gentleman from Dela- fect. ware says, the treaty was mislaid; but how does this agree with the other facts of the case? The subject, according to his own showing, was one of great interest; the Cherokees had made a complaint to government, orders had been issued, and even military force had been employed. Is it conceivable that, if the Cherokees understood themselves to be entitled to an annuity, and that annuity was not paid to them, they would not complain? That the virtuous agent who presided over them would have been so negligent of what he owed to the nation, as not to make a complaint to this government? Yet the subject is not touched till he is dead! which was conclusive proof that there were reasons why the treaty was not ratified. The gentleman from Delaware had bespoke the favor of the House for the Cherokees, on account of their humble situation, and their inability to resist the power of this nation, and that, therefore, no great scrutiny was needful in making an appropriation for their benefit. Whatever might have been their humility formerly, Mr. F. said, they were no longer humble. They had been exalted by the kindness of government. None could forget the peculiar distinction with which they were treated in this city last winter. Yet they had mingled with the other tribes in resisting and frustrating the wishes of Congress, as expressed in the act of last session. He did not wish to urge this to their prejudice, but merely mentioned it as a countervailing consid ration to the appeal made by the gentleman from Delaware to the feelings of the House on this question.

Applying these principles to the present case, Was it such a one as would justify the exercise of this right? Is it not rather one that, if we were the proper constitutional organ for ratifying the treaty, would demand its execution? A more urgent call on the honor, and justice, and humanity, of the nation, could scarcely be presented. Twenty years ago an intrusion had been made on the lands of a friendly tribe of Indians, contrary to express and highly penal laws of the United States. The Government had then the alternative of raising a force sufficient to remove the aggressors, or to satisfy the Indians by a purchase. They attempted the former the settlers were ordered to remove, but the savages, with a moderation and humanity that would have done honor to a civilized nation, suffered the trespassers to remain until they could gather the corn they had planted. In the mean time, the Government, calculating perbaps, the difficulty and expense of breaking up the settlement, determined to endeavor to make a purchase. It was made. Of this there is no doubt-no dispute. How it was made, is another question. Whether the poor wretches yielded to the strong arguments of the troops who were among them-whether those troops found it easier to enforce a treaty than to remove the settlers, is not now the question. The treaty was made. Five thousand dollars were paid, and one thousand agreed to be annually paid. It was executed in the utmost good faith by the savage contracting party. lands were given up, and the possession of the United States has never, from that time to this, been disturbed. A copy of the treaty, duly executed, was delivered to the head men of the nation; but the copy intended to be sent to Washington for ratification, never arrived. Last year, the Chiefs of the nation arrived at Washington, bringing with them their copy of the treaty, and demanding the payment of the annuity. The President, finding no such document on record, had recourse to secondary evidence—to a witness who, from his station, his character, his accuracy, and perfect possession of all his mental faculties, could best elucidate the matterhe applied to the venerable man who was then Presi dent of the United States, to know, first, whether he recollected whether such a treaty existed? Secondly, Mr. WOOD, of New York, desired to know wheth-whether any reasons had prevented him from submiter the Indians were in possession of this land from 1804 to 1817? Or whether the United States took possession of it?

The gentleman says that the omission was accidental, and that the House may execute the treaty nunc pro tunc, but the House is not authorized to do so, because evidence is no doubt in existence, and can be procured, of the reason why the treaty was not ratified. If it shall be shown that Mr. Jefferson was not to blame, then the question will recur, How far are we bound by the mistakes of a subsequent administration, to carry this treaty into effect? For himself, he thought the House was not bound, and, as to the consideration of injustice, he insisted that the Cherokees were amply paid by the 5,000 dollars which they had already received-a price which exceeds the rate paid for any other lands purchased of the Indian tribes.

Mr. FORSYTH stated, in reply, that those whom the Indians called intruders, were in possession of the land in 1804, and had been ever since.

Mr. LIVINGSTON, of Louisiana, said, this motion presented an important question, on which he was not called on now, for the first time, either to form or express an opinion. About thirty years ago, he had made a motion, at the time of the ratification of a treaty negotiated by Mr. Jay, with Great Britain, on the discussion of which it was solemnly resolved that this House had the constitutional powers to grant or withhold its co-operation in carrying a treaty into effect, whenever its execu

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ting it to the Senate for ratification? To this be answers, that he remembers the treaty-that, as it had his entire approbation, no reason could have existed to prevent him from submitting it to the Senate; and that he sup poses it must have been mislaid in the War Office on its passage to him. This conjecture proved true; on search being made among the miscellaneous papers of that office, the treaty was found: it was sent by the present Chief Magistrate to the Senate, who, after examin ing all the circumstances of the case, advised its ratification. It was ratified, and we are now called on to interpose the extraordinary powers of the House to avoid the contract, by refusing an appropriation to carry it into effect.

The reasons for this refusal are, that this delay in de

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