APRIL 17, 1830.] The Indians. [SENATE. Are not the United States bound-will they abide by ited, did sever, cut, and lop off the land so ceded before the The first article is, "There shall be perpetual peace and power of the Federal constitution existed, and ex post facto friendship between all the citizens of the United States of declared they were vested in, and belonging to, the Creek America, and all the individuals composing the whole nation of Indians; and because the said intercourse law Cherokee nation of Indians." and treaty of Colerain have confirmed the same. "Article 7. The United States solemnly guarantee to the Cherokee nation all their lands not hereby ceded." "Article 15. All animosities for past grievances shall henceforth cease, and the contracting parties will carry the foregoing treaty into full execution with all good faith and sincerity." The question now is, shall we carry these articles into effect with any good faith or sincerity? Their complaint is, substantially, that the United States had taken from Georgia, lands which had "been duly ceded, fairly paid for, and legally and constitutionally laid out into a county." In conclusion, they "most fervently solicit a revision of the intercourse law and the New York and Colerain treaties, and requiring a confirmation of the county of Tallassee to the State." And "they most earnestly solicit the assistance of the United States to attain the Will it be pretended that the United States might make cession of land the treaty of Colerain, they trust, was inpeace, but had no authority to insert such stipulations as tended to establish." These protestations insist that the those I have quoted. Sir, the substance of these articles treaties of Galphinton and Shoulderbone were valid by are of the essence of a treaty of peace. In every contract reason of the before named reservation in the articles of each party recognizes the separate existence of the other; confederation; but no where deny, and, by implication, adand a treaty of peace-not a truce, not an armistice, not mit, the general right of the United States to make treaatemporary cessation of hostilities, but a treaty of peace-ties with the Indian tribes, and guarantee to them the posin its nature a permanent, enduring contract, must bind session of their lands. They do not breathe a whisper of each party to respect the existence of the other, and never objection to the treaty of Holsten, of 1791, or to any of the to assail or attempt its destruction: must obligate cach also powers involved in making it, but acquiesce therein. to permit the other to continue that existence upon its In February, 1796, by an act of her Legislature, to own territory without attack or violence. To attempt to which I shall hereafter recur, she expressly declared that expel them by force, or subjugate or destroy their sepa- the United States had the right to make treaties with the rate being, is a violation of the compact of peace, and a Indians; a right which they have continually exercised, renewal of the war. In terminating hostilities, therefore, and which she has never questioned, until this recent by the undoubted constitutional power, the United States controversy arose. Not less than fourteen treaties have not only rightfully, but of necessity, embrace such terms been entered into with this same Cherokee nation since as these. Are they not obligatory? I am not contending, the adoption of the constitution: in 1791, 1792, and 1794, [said Mr. S.] that the United States can cede away a part by General Washington; in 1798, by Mr. Adams; one in of any State to a foreign nation, as France or Great Bri-1804, two in 1805, one in 1806, and one in 1807, by Mr. tain, for example. That question I do not mean to touch; Jefferson; three in 1816, by Mr. Madison; one in 1817, it is wholly unnecessary. I only say, that they may agree by Mr. Monroe, General Jackson being the negotiator; that the other party may continue to exist upon the lands and one in 1819, by the same Presdent, Mr. Calhoun bewhich they have always occupied, may retain that which has ever been their own. ing the negotiator. By more than half these treaties large cessions of land were obtained, boundaries defined, But this is not all. The constitution proceeds still far- and the remaining territory, and the protection of the ther, and gives to the United States the general right to United States again and again guarantied to the Indians. make treaties, not merely of peace, but all others. This Shall Georgia now be permitted to deny their validity? power is not only clearly and positively conferred on the If a man seeing another in the act of making a deed of Union, but expressly inhibited to its several members. It his land to a third person, shall stand by in silence, until has been repeatedly and continually exercised in relation the conveyance is completed, and the grantee has parted to the Indian tribes within the United States, and that by with his money, paid the consideration, would any chanthe acquiescence and assent of Georgia herself. cellor, that ever sat in a court of equity, permit that man I know it is said Georgia protested; and this has been to reclaim his property, and thus consummate a fraud on repeated, reiterated, and insisted upon, in every variety of the fair purchaser? But suppose that he shall not only form, as applicable to both the treaties, and all the ques- thus witness the conveyance perfected and the money tions which have been presented. Let us examine: The paid, but himself receive the consideration, can he, with first alleged protest was in February, 1786, prior to the the fruits of the contract in his pocket, lay his hand upon treaty of Holsten. It is the report of a committee, ac- the property and wrest it from the innocent grantee? cepted by the House of Representatives only. The ob- Georgia not only acquiesced but actually received all the jections urged therein apply exclusively to the treaty of lands ceded by the Indians, and for which they obtained Hopewell, and must have rested only on the ground of the our promise of protection. I have in my hand some of reservation before mentioned, in one of the articles of her laws disposing of the acquisitions. confederation, and which was omitted in the constitution. The title of one is: "An act to dispose of and distriThe next protest was in February, 1797. It makes no bute the cession of land obtained from the Creek and objection whatever to the treaty of Holsten, and thereby Cherokee nations of Indians by the United States, in the impliedly approves and assents to it. It protests against several treaties of 10th August, 1814, 8th July, 1817, and two treaties with the Creeks made at New York, and 22d January, 1818." Colerain, and the intercourse law of the United States, The grounds of objection insisted on are, that the intercourse law places the military above the civil authority, and prohibits pursuit and retaliation for Indian outrages. That the Creeks, by the treaty of Galphinton, in 1785, confirmed by a subsequent treaty at Shoulderbone, had And now retaining these acquisitions, holding the prosubmitted themselves to Georgia, and become members of ceeds of these treaties in her hands, she declares that they the State, and ceded to her a tract of land, which had been are invalid; thus, at the same moment, binding the Indians actually organized into a county by the name of Tallassee. by their stipulations, and denying them the benefit of And the State protests, "because the treaty of New York in ours. She has not only thus declared the right of the 1790, after the said cession being acted on constitutionally, United States to make treaties, and assented to them when erected and laid out into a county, and the lands appropriat-made, but has repeatedly urged that they should be en And of another: "An act to dispose of the territory lately acquired of the Cherokee Indians by a treaty held by the honorable John C. Calhoun, at the City of Washington, on the 27th day of February, 1819." There are others of similar tenor. SENATE.] The Iadians. [APRIL 17, 1830. tered into for the purpose of obtaining farther acquisitions much relied on. It was advanced by the Secretary of for her benefit; and even as late as the year 1825, con- War, repeated by the committee, and reiterated in the tended that the treaty of the Indian Springs with the speech of the chairman. If this be so, a most unexpected Creeks was obligatory, and should be carried into effect. result follows: it is, that Georgia has never yet had a reAnd it was not until the Indians had firmly refused to publican form of Government: for there has never been assent to farther cessions, and it was perceived that no a moment when such tribes did not exist within her bormore lands could be acquired by negotiation, that the ders. At the time of the adoption of the constitution, this doctrine arose which denies to the United States their same Cherokee nation was much more numerous, and held right to make these compacts. What have the Senate heard to obviate the force of the facts and arguments which I have adduced? What answers have been given? I will advert to them all. sway over a much wider region than at the present time. Nay, the constitution itself confirms the pre-existing treaty of Hopewell, which recognized and guarantied the separate existence of the tribe; and which is now contended to be incompatible with that fundamental compact. Is the existence of a body politic, which the Legislature cannot destroy, necessarily incompatible with a republican form of government? How is it with Dartmouth College in New Hampshire, or the chartered cities of other States? And, first, as to the acts and acquiescence of Georgia, we have the reply in the report of the committee, that, as she protested against the treaty of Hopewell, made in 1785, no inference can be drawn to her disadvantage, from her silence, or from any thing she may have said in relation to any subsequent treaty, because in each of them Another proposition, derived from the same elevated a change was made, by which a portion of her territory and source, and urged with equal vehemence here, is, that jurisdiction was restored to her, and thus her condition these treaties cannot be vald, because the constitution rendered better," &c. Who does not perceive that, under declares that "no new State shall be formed or erected this form of words of restoring--what she never possessed, within the jurisdiction of any other State, without the but which belonged to the Cherokees, before she had a consent of the Legislature" thereof. Sir, no one probeing the substantial, real cause of her assent is alleged poses to create a new State, but to continue an old tribe, to be the benefits which she received! Yes, sir; she did or State, if you so please to denominate it. It is to keep receive the fruits of these solemn contracts: by the estab- faith with a political community more ancient than Georgia lishing of peace and additions to her territories, in 1791; herself; it is to preserve, not to form anew. Here, again, by the cessions of 1798, 1804, 1805, 1806, 1807, 1816, I would observe, that this nation of Cherokees was as 1817, and 1819. And shall we be told that, because it much a State at the time of the adoption of the constituwas for her interest to be silent, because she was receiv- tion as now, and had much greater power and more exing the consideration of the compacts, therefore she now, tensive dominion; and that the treaty of Hopewell, which, after twenty years assent, is under no obligation to abide this argument insists, formed a new Stats since the conby them? stitution, and in violation thereof, was made two years beThe honorable chairman, in his opening speech, assign-fore its adoption, and was confirmed and sanctioned by it. ed several reasons why the United States could not consti- We are next told that the constitution recognizes the tutionally form such treaties. The first was, that "the right of the respective State Legislatures to pass their creature could not possess power to destroy its creator." laws over, and annihilate these communities, by that This expression is calculated to mislead the judgment, clause in the first article, which provides that an enumebecause it refers the mind at once to the relation in which ration of inhabitants, as a basis for representation, shall be we frail and feeble mortals stand to our Omnipotent Ma- made, "excluding Indians not taxed." This provision ker; and it would seem to be just as true to say, the crea- undoubtedly implies that there could be individual Indians ture cannot diminish the power of its creator. The gen- subject to taxation, and therefore to be counted; it also tleman applies it to the General Government, as the work expressly declares that there might be those within a of the several States. Is it true that it cannot, that it does State "not taxed." There may have been, nay, there not take any power from its several members? The ar- were, in some of the States, individual natives voluntarily gument is, that if the Union can secure to the Indians any residing within the white settlements, separate from any portion of her territory by treaty, they may cede away a tribe, and freely subjecting themselves to the local laws. whole State. This would, indeed, as the gentleman must There were those, too, whose nation, as a body, bad disadmit, be a gross and palpable abuse of the authority. appeared; and because these persons had, of their own His reasoning, then, must be, that the United States can- accord, thus sought the State jurisdiction, does it follow not possess any power which, by perversion, may be ex- that it could be extended ever Indian nations, who had erted to the destruction of one of its members. Can they, always resisted it, and with whom, at the moment this then, make any treaty with a foreign nation? If so, there clause was written, and the constitutien formed, the Unitis the same danger of wrongfully transferring a State.ed States had a treaty guaranteeing them against such taxCan they make war? It would be the readiest means of ation, and every other exercise of State authority over lopping off a member by leaving it defenceless. Can them? By what imaginable process could these words, "Inthey organize, discipline, and call forth the militia, and dians not taxed," produce the magical effect of annulling control the whole physical strength? Sir, these are pow- the treaty of Hopewell, then existing in full force? Let us ers expressly inserted in the constitution, and they are substitute the word aliens for Indians. The clause would not to be argued out of it by apprehensions of extravagant then exclude "aliens not taxed." Will it be contended that possible abuses. foreigners existing as a nation, with whom we had treaties The General Government was formed by the States, as such, would be subject to the laws of a State? Would and the creature, says the gentleman, cannot have power it not apply exclusively to the aliens, who had separated to destroy any one of its creators. The State Govern-themselves from the nation and mingled with our citizens? ments, sir, were formed by individuals. If any of these As a last resort, and to me it seems a desperate one, it should be guilty of a capital offence, might he not say, in has been earnestly contended by the gentlemen from Tenthe language of the chairman, you cannot take my life-nessee, Alabama, and Georgia, (Messrs. WHITE, McKINit is impossible, in the nature of things, that the creature LEY, and FORSYTH,) that we cannot constitutionally make can have power to destroy one of its creators. any treaty with any Indian nation within the United States; It is argued that the existence of an Indian community, that the express power to make "treaties" does not emwithin the chartered limits of a State, is inconsistent with brace compacts or agreements with such communities. "a republican form of government," as guarantied by Wherever, sir, the relation of peace and war can exist, the constitution to every State. This argument has been the United States must, of necessity, possess the right to APRIL 17, 1830.] The Indians. [SENATE. make a treaty of peace. That this relation may exist communities as the Creeks and Cherokees, as those with with these native tribes has never yet been doubted, and transatlantic nations, such as France and Spain. will not at this day be questioned. No one will have the Contemporary exposition has always been deemed of assurance, in the face of all history, in defiance of what great force in settling even the most difficult questions of is known by the whole world, to declare that our contests constitutional law. Practice and precedent, too, have ofwith the aboriginal nations are, on their part, insurrec- ten been considered as decisive authority. Mr. Madison, tions, rebellions, subjecting them to be tried and executed who has, with so much justice, been denominated the as traitors. The Secretary of War will not say so: for he great constitutional lawyer of this country, declared, in a told the Cherokees, in April last, "your people were at message to Congress, that the question of the constituenmity with the United States, and waged a war upon our tionality of the Bank of the United States, had been so frontier settlements; a durable peace was next entered settled by the sanction of the different departments of the into with you until 1791." The committee and its chair- Government, that it was no longer to be agitated; and yet man [Mr. WHITE] will not tell us so: for their report, ac- only one bank had then been chartered. If his argument companying this bill, declares that the Cherokees waged had, in that instance, any force, it is here irresistible. "a war against the citizens of these States prior to the From the organization of the Government down to this treaty of Holsten, in 1791." Rebellion! by those who very session of Congress, the practice has been unbroken never owed allegiance, and with whom, ever since our and invariable. We find these treaties made in 1789, national existence, we have either had open war or sub-1790, 1791, 1792, 1794, 1795, 1796, 1797, 1798, and alsisting treaties! But, independent of this power of peace most, if not quite, every year since. I have counted no and war, why does not the general authority to make less than one hundred and twenty-four Indian treaties, treaties embrace those with the Indians? Gentlemen con- formed under the present constitution, being more than tent themselves with a positive and earnest denial. three for each year. If authority and practice can settle any question, this is at an end. The word treaties, say they, in the constitution, does not mean compacts or contracts with Indian tribes. Why not? Did not those who formed and adopted the constitution so understand it? To answer this question we must ascertain how that word was used, and what were the ideas attached to it, at the time and anterior to its insertion in that instrument. This rule of construction is the foundation of all science. When any term is used by an author, it is understood to carry with it the ideas which he has previously affixed to it; that he denotes by it what he always has done. Hence, in the science of law, when the student has ascertained what the writer means by the the words fee simple, or larceny, if he subsequently finds those words used by the same author, he attaches to them the same meaning. In 1790, General Washington delivered a speech to the Seneca Indians, some extracts from which I will now read: "I, the President of the United States, by my own mouth, and by a written speech signed with my own hand, and sealed with the seal of the United States, speak to the Seneca nation. "The General Government only has the power to treat with the Indian nations, and any treaty formed and held without its authority will not be binding. "Here, then, is the security for the remainder of your lands. No state nor person can purchase your lands, unless at some public treaty held under the authority of the United States. The General Government will never consent to your being defrauded; but it will protect you in These contracts with aboriginal communities have been all your just rights. denominated treaties from the first settlement of this Hear well, and let it be heard by every person in country. It has been their peculiar and appropriate name, without even an alius dictus. Great Britain made treaties with the Indians; the several colonies formed many, and gave them the same appellation. The Continental Congress, from the time it first assembled until it was merged in the present national Government, uniformly called them treaties. They did so in 1775, 1776, 1778, 1783, 1784, 1785, 1786, 1787, 1788, and even to the day of the formation and adoption of the constitution. We find them repeatedly and particularly mentioned in July, August, and October, 1787; the constitution being formed in September of the same year. Nor is this all. In the articles of confederation, power was given to make treaties. It had been repeatedly exer. cised in establishing our relations with Indian tribes; particularly the Delawares, the Six Nations, the Cherokees, the Choctaws, the Chickasaws, and the Shawnees; and, on the first of September, 1778, was issued the proclamation of Congress and of General Washington, to enforce the treaty of Hopewell. The word treaties, thus invariably known and used, and which had received a practical construction under the confederation, was inserted by the same great men in the constitution of the United States. Could any one doubt its meaning? Did Georgia misunderstand it? She had herself made treaties with all the forms of negotiation, through commissioners fully empowered, in 1773, 1783, and 1785, they were so denominated by her at the time and ever afterwards. On the 3d of August, 1787, a motion was made by Mr. Few, delegate in Congress from Georgia, seconded by Mr. Blount, from North Carolina, to take measures to "explain and confirm all former treaties" with the Creek Indians. There is as much evidence that this word was intended to embrace conventions with such your nation, that the President of the United States de- "But your great object seems to be the security of your remaining lands, and I have, therefore, upon this point, meant to be sufficiently strong and clear. "That in future you cannot be defrauded of your lands. That you possess the right to sell, and the right of refusing to sell your lands. "That therefore the sale of your lands in future will depend entirely upon yourselves. But that when you may find it for your interest, to sell any parts of your lands, the United States must be present by their agent, and will be your security that you shall not be defrauded in the bargain you shall make. "You now know that all the lands secured to you by the treaty of Fort Stanwix, excepting such parts as you may since have fairly sold, are yours, and that only your own acts can convey them away. Speak, therefore, your wishes on the subject of tilling the ground. The United States will be happy to afford you every assistance in the only business which will add to your numbers and happiness. The United States will be true and faithful to their engagements. "Given at Philadelphia, 29th December, 1790. GEORGE WASHINGTON. "By the President: THOMAS JEFFERSON. "By command of the President of the United States. "H. KNOX, Secretary for the Department of War." SENATE.] us. "The United States will be true and faithful to their cured by them, and making appropriations to enable the engagement." Such was the solemn declaration of the President to hold others. At this very session, the Senate Father of this Country in the infancy of this republic. Hea- has ratified new treaties: and during the present month, ven grant that his sacred promises may be kept and his we have made an appropriation to enable the President to confident prediction verified. The question is now before form another, with the tribes in Indiana. While that bill No sophistry can evade, no ingenuity can elude it. was under discussion, an amendment was proposed, proWill the United States be true and faithful to their en-hibiting the use of any part of the money therein granted gagement," or false and treacherous? in secret presents to the chiefs; and it was insisted by the The Cherokees present this solemn interrogatory, and gentlemen from Tennessee, Louisiana, and Illinois, [Messrs we must return a deliberate response. It seems almost as GRUNDY, LIVINGSTON, and KANE,] that such a proviso, if their case had been formed for the purpose of determin- merely restricting the use of money which Congress was ing whether it be possible to bind this nation by its plight- granting, would trench upon the high, independent, coned faith. stitutional power of the President in negotiating treaties. Nay, the second section of the bill now under consideration, provides for the removal of "any tribe or nation of Indians, now residing within the limits of any of the States or territories, and with which the United States have existing treaties;" and now we are told by the chairman that such treaties cannot exist--that they are no treaties. I have already referred to our repeated and reiterated engagements by the sages of the Revolution, in the Congress of 1785; by Washington and the constellation of brilliant names around him, in 1791, 1792, and 1794; by the elder Adams and his cabinet in 1798; by Mr. Jefferson, in four successive treaties, in 1804, 1805, 1806, and 1807; by Mr. Madison, in several formed in 1816; by Mr. Monroe, in 1817, General Jackson himself subscribing it with his own hand as commissioner; and by another in 1819, to which Mr. Calhoun affixed his name, as negotiator. All these treaties were ratified by the Senate, and sanctioned by every department of the Government. It is in effect asserted, that every President and every Senate have been guilty of usurpation, in extending the treaty-making power beyond its legitimate objects: for if these contracts are not treaties, within the true meaning of the constitution, they could be made only by the authority of Congress. But the President and Senate alone-In 1794, that greatest and best of men, whose name we the treaty-making power--have always negotiated them, profess so much to venerate, and which should be, of all ratified them, and by proclamation announced them to the others, the highest authority to this Senate, and to the na-nation, as the supreme law of the land. Every State Letion, delivered a speech to the chiefs and warriors of the gislature, and the whole people, have heard these annunCherokee nation, in which, speaking of the lands upon ciations, and looked on, during all these proceedings, in Cumberland, he says: "These have been confirmed by silent acquiescence. two treaties, of Hopewell, in 1785, and Holsten in 1791." Again--"The treaties which have been made cannot be altered. The boundaries which have been mentioned must be marked and established, so that no dispute shall happen or any white people cross over it." Even in 1798, when all the acts of the General Government, and particularly those of the Executive, were scrutinized with the utmost rigor, it was never suggested, even in Virginia, where the discussions were most animated, that there had, in this respect, been any irregularity. But In 1795, the Governor of Tennessee, upon which State now, upon the pressure of an exigency, it is discovered, it is now asserted these treaties are not obligatory, wrote for the first time, that all has been wrong. The present a letter to President Washington, in order to "prevent occasion has brought with it new and peculiar lights, by infractions of them," by encroachments upon the lands of which gentlemen now perceive what was in the minds and the Indians. And as late as 1824, the gentleman from intentions of the framers of the constitution better than Tennessee, who reported this bill, [Mr. WHITE] gave an they did themselves. They were ignorant of their own able and elaborate opinion in writing, in which he stren- work. The venerated fathers of the republic, and all the uously asserts and maintains their validity and the rights of high and honored names who have presided over its dest.the Indians. He says "the Cherokees are to be consid- nies, have been involved in deep darkness, and wandered ered as a nation, a community having a country distinctly in gross error! marked out, and set apart for their use; that their interest I have thus, [said Mr. S.] endeavored to present my is as permanent and fixed in it, as the pledge and the faith views with respect to the claims of the State of Georgia. of the United States can make it; inasmuch as they have Whether we regard original principles of international law, solemnly guarantied it to them as a nation, without any as applicable to the right of discovery; or the express limitation of time." With reference to the treaty of Hol-powers conferred by the articles of the confederation; or sten, he says they are "to be viewed as a nation possess the confirmation of pre-existing treaties, by the adoption ing all the powers of other independent nations, which are of the constitution; or the authority vested by that instrunot expressly, or by necessary implication, surrendered up ment in the General Government, and the renunciation of by that treaty." And again, they have not surrendered powers by the respective States; the invariable practice the power of making municipal regulations for their own and usage of the Union, and the acts, acquiescence, and internal government." assent of Georgia herself; it is manifest that we are bound to perform our engagements to the Indians, and are under no incompatible and paramount obligations to that State. But now that we, the United States, are called upon to "be true and faithful to these engagements," it is contended that they are not obligatory; and, in order to sustain that position, it is insisted that the constitution gives But let us now, for the sake of the argument, make the no power to make treaties with Indian nations, within the violent supposition, that the pretensions of Georgia are United States. Although every President of the United well founded, and that the United States cannot rightfully States and the members of his cabinet, every administra- fulfil their stipulations as against her. In that case the tion and all the great men by whom it was surrounded and States of Alabama and Mississippi would stand on very difsustained, have formed and established such Indian trea- ferent ground. Their claims have been mingled and blended with those of the elder sister, as if they were precisely Every Senate of the United States, and I believe every the same, and hers have been put forward as the only submember of every Senate, have ratified and confirmed such jects of discussion, when in truth there is a broad line of Indian treaties. Every House of Representatives of the distinction which ought to be marked and remembered, United States, and I believe every member thereof, have For the sake of distinctness and brevity I shall speak of affirmed and sanctioned them, by passing laws for their Alabama alone. It is conceded on all hands, as a fundadue execution, paying from year to year the annuities se- mental proposition, that the United States are bound to ties. APRIL 17, 1830.] The Indians. [SENATE. fulfil their engagements to the Cherokees specifically, ex-common consent." Then succeeds an article embracing cept when prevented by incompatible obligations, prior the clause before read, and which was incorporated into the in point of time. Now, sir, the State of Alabama did not compact of 1802. The ordinance subsequently declares, exist until the year 1819; when she voluntarily came into "That the said territory, and the States which may be the Union after the fifteen treaties with this nation had formed therein, shall forever remain a part of this confedbeen previously established and proclaimed as the supreme eracy." This ordinance, with all its provisions, was affirmlaw of the land. But it is said that Alabama was formed ed and established by the adoption of the constitution, and from territory once belonging to Georgia, and succeeded thus that instrument itself contemplated that all the States to to all her rights. Without stopping to examine the diffi-be thereafter formed northwest of the Ohio, should be culties attending such a supposed transmission of a right forever subject to those conditions, by which it is now conto resist treaties, it is sufficient to say that, by the compact tended no one could ever be constitutionally restrained. of 1802, Georgia ceded to the United States all her “right, It is insisted by the gentleman from Alabama [Mr. M’KINtitle, and claim," "to the jurisdiction and soil" of all the LEY] that Georgia could not transfer soil and jurisdiction territory now constituting Alabama and Mississippi. The to the United States; that the compact of 1802, attempting whole right of Georgia, whatever it was, thus became vest- to do so, was unconstitutional and void; and that the tract ed in the General Government, and so remained until 1819; of country which it was intended to convey remained a during which time not less than eight of these treaties were part of that State until the year 1819. If the gentleman's made. Who could then contest their validity? Are our doctrine is correct it remains so still, she having never treaties valid with the nations in Florida, Arkansas, and Mi- conveyed it. Another consequence would flow from this chigan? Can we enter into engagements with any tribes doctrine, which I should exceedingly deplore; it is, sir, within the boundaries of the United States, even beyond that Alabama is not a member of this Union! By the the Rocky mountains, or any where upon this continent? constitution no new State can be formed or admitted into Can we make the solemn guarantee proposed by this bill? the Union within the limits of an old one, without the conIf so, we are legally constrained by our promises to the In-sent of the latter. Now, sir, Georgia has never consented dians of Alabama, made before the existence of that State. to the admission of Alabama, except by the transfer of soil But this is not all. Still another insuperable difficulty and jurisdiction, by virtue of the compact of 1802. If presents itself to her claims to legislate over and destroy that conveyance was inoperative, no consent has been givthe Indian nations. The following article is a part of the en. If that compact was absolutely void, as the gentleman fundamental law to which Alabama owes her being, and contends, it is a legal nullity, and he can hold no rights unwithout which she cannot exist: "The utmost good faith der it. Congress, too, have never given their consent, shall always be observed towards the Indians; their lands except upon the basis of the binding efficacy of that comand property shall never be taken from them without pact, and upon the express condition that its requisitions their consent; and in their property, rights, and liberty, should be the fundamental law of the new State. But, they never shall be invaded or disturbed, unless in just says the gentleman, Congress had no power to pass such a and lawful wars authorized by Congress; but laws found- law. If so, the act respecting the admission of Alabama ed in justice and humanity shall, from time to time, be was unconstitutional and void, and neither created nor made, for preventing wrongs being done to them, and for admitted any new State. The ingenious gentleman has preserving peace and friendship with them." This was reasoned so profoundly upon constitutional law that he has originally a part of the fourth article of the ordinance re- argued himself and his colleague out of their seats in this specting the Northwestern territory: and was, by express Senate! Now, sir, against this I most seriously protest; reference, incorporated into the first article of the compact they cannot be spared; we need the aid of their talents of 1802, and made a fundamental and perpetual condition and experience. in the act of Congress which provided for the admission of Alabama. What is the answer to all this? We have it from the gentleman from Alabama, [Mr. MCKINLEY.] The compact of 1802 [says he] was unconstitutional; Georgia could not transfer to the United States either soil or jurisdiction. If this be so, the first consequence is that the dispute between that State and the General Government, respecting the ownership of the Crown lands obtained by conquest, which that compact was supposed to have happily put to rest forever, by mutual and reciprocal cessions, could never be settled! In the next place: that the combined powers of the State and of the Union cannot do that, under the constitution, which the members individually might have done without the constitution. It is an attribute of complete sovereignty to be able to convey and receive territory. It is insisted that this attribute, as between the States, is annihilated; although all powers not granted are reserved to the members. I will not say that such an effect could not be produced by the constitution; but it is at least so extremely improbable, that those who contend for it, in any particular instance, should be required to show it clearly, which has not been done. How will the gentleman escape from the consequences which I have deduced? Will he contend that the compact and the law were valid and invalid at the same time? That they conferred rights, but could not impose obligations upon his State? Even if such an extraordinary position were assumed, how would it affect the present question? If he can infuse any degree of vitality into that which was dead before its birth; if he can make that compact efficacious, as the consent of Georgia to Alabama's becoming a State, would it not also be effectual as her consent that the United States should exercise jurisdiction over the territory, so far as to make treaties with the Indian tribes? If, then, the gentleman will admit that Georgia assented to any thing, by virtue of that compact, she consented to the formation of these treaties, and thus they were valid by her authority before Alabama was brought into being. As a dernier resort, the gentleman insists that the true construction of the language of the ordinance gives all the right over the Indians for which his State contends, because the latter clause requires that “laws shall, from time to time, be made for preventing wrongs being done to them, and for preserving peace and friendship with them." That is, laws restraining the whites, our own citizens, from enIt is insisted by the gentleman that no State can be sub-croaching upon the natives, and thereby endangering the ject to the restraining condition of the ordinance referred public tranquillity. If Maine or New York should pass to, because it is inconsistent with her constitutional equali- laws for "preventing wrongs being done to" the Canaty with the other members of the Union. That ordinance dians, "and for preserving peace and friendship with was established in July, 1787. It declares that "the fol- them," would that give jurisdiction over the British prolowing articles shall be considered as articles of compact vinces? But let us read the whole clause, the true conetween the original States and the people and States of struction of which confers this unlimited power: "The aid territory, and forever remain unalterable, unless by utmost good faith shall always be observed towards the |