EMORY UNIVERSITY
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Georgia anii tfje &ugeeme Court
AN EXAMINATION OP THE OPINION
Ccrcrcl ol t\\e \5mied statesV
AT JANUARY TERM, 1832,
UeliveYed Mr. CViel Justice
IN THE CASE 01?
Samuel a. Worcester, Plaintiff in Error*
Versus
Wbt Stat* of cxeorci.**
"I'll talk a word with this same learned 1futban,'\
3(U0U$ta ••
SS553
1832.
GEORGIA
AND THE
SINCE the establishment of the Federal Consti¬
tution, there has not been a more portentous occur¬
rence, in our civil history, than the recent decision of
the Supreme Court, of the United States, in the case
i>f the Missionary WORCESTER, lear after year,
the elements of poTfttcal explosion have been accumu¬
lated under bur feet—the train has been laid—the
match itself has been finally kindled, and kindled alas !
by those who minister in the temple of justice. O f
polluted and desecrated temple ! With such a priest¬
hood, no longer worthy of any, but the altars of dis¬
cord ! In this solemn pause of expectation, while the
shock is yet suspended, let us endeavor calmly, but
fearlessly, to exhibit in its true character, this sinister
decree. We cannot believe, that our countrymen,
those whose fathers marched shoulder to shoulder,
with our own, into the battles of liberty, will raise fra¬
tricidal hands, to sustain the illusory forms of pervert¬
ed and insulted justice.
The essence of the opinion delivered from the
bench, is a denial that Georgia possesses jurisdiction,
over a district of country, which though now occupied
by the Cherokees, is included within her geographical
limits; and coupled with this denial, is the assertion of
a right in the United States, to resist any attempt of
Georgia, to exercise that jurisdiction. In examining
the opinion, we shall not pursue the sinuous progress of
the Court; but detail in what appears a more natural
order, the titles of Georgia to the jurisdiction in dis¬
pute, encountering as they successively arise, those ar¬
guments which have been adduced in opposition.
3
The history of Georgia as a political sovereignty,
is to be derived from her colonial charter, and other
acts of the British Government preceding the 4th of
July 1776—<-from the declaration of Independence—
the original Articles of Confederation—and the exist¬
ing Constitution of the United States. Without wast¬
ing our time, in a repetition of unimportant particulars,
we shall briefly exhibit the leading principles, and facts,
which relate to the present controversy. It would be
superfluous, to deduce the successive boundaries of
Georgia, step by step, through the tedious verbosity of
charters, treaties, and proclamations, it <vyjll be suffici¬
ent to state, what were her admitted limits, at the era
of the revolution, as subsequently confirmed by the
treaty of 1783; The boundaries of the colony or pro-
vince of Georgia at that time, extended "from the
mouth of the river Savannah, along the north side there¬
of, and up the most northern stream* or fork* of the said
river, to its head or source; from thence in a due west
course, to the river Mississippi, and down the said stream
of the Mississippi, to the latitude thirty oije degrees
north; from thence in a due east course, to the river
Apalachicola, or Chatahouchee, and from the fork of
the said river Apalachicola, where the Chatahouchee
and Flint rivers meet, in a direct line to the head} or
source, of the southernmost stream of the river St, Ma¬
ry's, and along the course of the said river St. Mary's,
to the Atlantic ocean, and from thence to the mouth, or
inlet of the river Sayannah." This colony and twelve
others, on the 4th of July, 1776, declared tbefr Inde¬
pendence in the following terms" We therefore the
representatives of the U. States of America, in Gene¬
ral Congress assembled, appealing to the Supreme Judge
of the world, for the rectitude of our intentions—Do
in the name and by the authority, of the good people of
these colonies, solemnly publish and declare, that these
united colonies are, and; of right ought to be free and
4
independent states, that they are absolved from aH alle¬
giance, to the British crown, and that all political con¬
nexion between them, and the state of Great Britain, is
and ought to be totally dissolved; and that as free and
Independent states, they have full power to levy war,
conclude peace, contract alliances, establish commerce,
and to do all other acts, and things, which independent
states may of rjght do. And for the support of this
declaration, with a firm reliance 011 the protection of
Divine Providence, we mutually pledge to each other?
our lives, our fortunes, and our sacred honour." Every
colony thus, not only asserted its own freedom, and in¬
dependence; but acknowledged, and bound itself to sup¬
port, the freedom and independence of every other*
That it was the individual independence, of each colo¬
ny, thus declared, and guarantied, we shall not stop to
prove, because it has not been denied. Between the 8tli
of July, 1778, and the 2d of March, 178.1^the same col¬
onies, now become independent states, successively ac¬
ceded to " Articles of Confederation and Perpetual
Union," of which the second is expressed in the follow¬
ing terms :—" Each state retains its sovereignty, free¬
dom, and independence, and every power, jurisdiction
and right, which is ijot by this confederation expressly
delegated, to the United States in Congress assembled."'
This corresponds with the previous declaration of 177G,
excepting,that it contains the term "sovereignty," which
indeed \yas implied in the other, by the words "freedom
and independence." In these articles, the only grant
of power to Congress, relative to the subject in ques¬
tion, is thus expressed:—"The United States in Con¬
gress assembled shall also have the sole, and exclusive
right, and power, of regulating the trade, and managing
all affairs with the Indians, not members of any of the
States; provided, that the Legislative right of any State,
within its own limits, be not infringed or violated." It
is obvious that this, if in any degree a qualification of
state sovereignty, is so slight; as scarcely to be worthy
of estimation. Alexander Haniilion in the Federalist
represents it as a virtual nullity. The sovereignty of
Georgia then, is clearly traced up to the time, when,*
she adopted the Federa) Constitution ; to the examina¬
tion. of which, therefore, we shall now proceed, The
preamble of that instrument declares, that the constit u¬
tion is ordained, and established, by " the people of the
United States." Some superficial! rea?oners have im¬
agined, that the people referred to. are %hc. people of the
United States generally, regarded as a single mass of
population. Very little rellestion however is necessi¬
ty, to dissipate the illusion. The people as a single
mass, had no political existence under the articles of
confederation—they did not form tJie.co;nventi;>;v-—and
finally they had no agency in ratifying the constitution
itself, which was submitted to, and adopted by th«peo¬
ple of each stale, separately. The vote of the. people in
one state, had no power over any other state; and what
js perfectly conclusive—after the constitution went in¬
to operation, by the ratification of nine states; the re¬
maining four, if they had so pleased, might have con¬
tinued separate, free, independent, and sovereign. The
members of the new confederacy then, acceding to it
as sovereigns, not dragged into it as fragments of a gene¬
ral population, lost by the change, only so much of their
sovereign rights, as they had relinquished, or delegated
to the General Government This implication though
sufficiently obvious, it was thought proper to fortify, Jry-
the following amendment of the constitution : uThe
powers not delegated to the United States by the con¬
stitution, nor prohibited by it to the states, are reserved
to the states respectively, or to the people." Nor will
it be improper to remark; that " the people" to Wiionv
in the disjunctive, these powers were reserved, are not
the people of the United States generally ; but the peo¬
ple of each state separately. The former delegated no.
powers; had no-powers to delegate ; were not at the
formation of the constitution a political entity; and ev-
6
en now, have a political existence, only in relation to
powers which have been delegated. The people of the
United States as a single political body, so far from be¬
ing the creator, is in fact as much the creature, of the
constitution, as a president, a congressman, or a judge. It
is a regular corollary too from the premises; that politic
cally speaking, in matters beyond the sphere of the con¬
stitution ; each state is foreign to every other state; and
the United States foreign to all The reserved powers
of Georgia, belong to the state, or the people of the state;
and any interference with their exercise, by another
state, or by the United States, is a foreign interference.
The only modification of state sovereignty by the con¬
stitution, in relation to Indians, is expressed in the fol¬
lowing words:—" The congress shall have power to re¬
gulate commerce with fore ignnati oils, and among the
several states, and with the Indian Tribes." On this
provision it will be unnecessary to dwell. The Court it¬
self declares, that such a concession,, when made by the
Indians, is not to be deemed a relinquishment of sover¬
eignty ; and: we may presume, that the same terms em¬
ployed by a state, are as little subject to such a construe-.
tion. Georgia then, with this slight qualification, re¬
mained not less sovereign, after the adoption of the con¬
stitution, than she had been before.
Let us now enquire, what is implied by the sim-.
pie assumption, and recognition of sovereignty. Those
who assume it, claim the right ta govern within their
own boundaries, according to their own pleasure; those
who recognize it, disclaim the right, to interfere in the
government of the country, whose sovereignty is recog¬
nized. The abstract, right or wrong, of what is done,
within the limits of a sovereignty, is not a subject of
practical consideration, for those by whom the sover¬
eign is acknowledged. If Devonshire in England,
Normandy in France, Dutchess in New-York;, or Bucks
in Pennsylvania, should complain of the oppressions of
their respective governments, or even claim indepen¬
dence ; it is sufficiently plain, that neither their com¬
plaints, nor pretensions could even be formally exam¬
ined, by States who admitted the sovereignty of Eng¬
land and France, of New-York and Pennsylvania. This
' %>
is the general principle whic^i regulates national socie¬
ty. The Austrian does not accuse the Turk, of oppres¬
sing Albania, or Roumeiia with excessive exactions-
Prussia does not vindicate against Austria, the rights of
her Hungarian provinces—nor does France deem it ne¬
cessary to enquire, whether the Spanish King respects
the privileges of the Catalans, It is well that such is
the usage. Much wrong is doubtless done in the world;
but far greater evils would ensue, if governments like
political Quixottes, taking the highroad inquest of ad¬
ventures, should couch a lance against every injustice
real or imaginary, that they encountered by the way*
Let the enthusiasts meditate on this; remembering
that the present dispute is not concerning the intrinsic
irierits of the policy of Georgia towards the Cherokees;
but concerning the right of any other power, to inter¬
fere between the parties.
Such being the nature of sovereignty, that it ex¬
cludes all foreign authority from its own domain; to
determine how far the exclusion should operate, in the
present instance; we need only advert to the geographi¬
cal boundaries of Georgia, which on the fourth day of
J«ly, 177G, were such as already have been quoted.
The country within those limits, was the only country
known in the political calendar, as " the colony of Geor¬
gia." When therefore, the colony of Georgia was de¬
clared a free, and independent state, those who recog¬
nized lief as such, admitted that they had no right to in¬
terfere, with the exercise of government, within those
limits. If they did not admit this, they admitted noth¬
ing; since except the country so described, there was
no province on earth, to which the recognition could
'8
apply. Its boundary was the very essence of its defini¬
tion—V- ith what arguments can the Court counterbal¬
ance this historical deduction of sovereignty, and the
geographical delineation of its extent ?
For tile present, we may pass by the preliminary
intimation, that the Cherokees are under the protec-
Hon of the United States. It is not perMps to be re¬
garded as an argument; but rather as the formal un¬
furling of the banner of the, Court, in token of the
side, which it had determined to espouse. Let us
proceed to the Inaiii principle, vvhich ft h&$ asMimM.
We are told, " that the U. States* succeeded to all the
claims of Great Britain, both territorial and political;
but no attempt so far as is known, has been made to
enlarge them." The Court seems to be far more par¬
tial to speeches of Mr. Superintendant Stuart, arid
proclamations of Governor Gage, than to the great
elementary state papers of our own government; not
a word is said of the full and unequivocal claims as¬
serted by each state, and recognized by all others, in
the Declaration of Independence, and the'Articles of
Confederation; yet we have seen, that in those venera¬
ble documents ; every state assumed for itself, & guar¬
antied to every other, an unqualified sovereignty with¬
in its existing colonial limits. To what purpose are
we told, that the rights of the states are to Be mea¬
sured by those which belonged to Great Britain ? If
in any case, Great Britain was not absolutely sover¬
eign, within the limits of a colony ; it must be evi¬
dent, that when the colony was converted into an in¬
dependent sovereign state, it did not succeed to her
potter, but assumed that, and as much more as was
necessary to constitute absolute sovereignty. If Great
* The Court means the United States severally. Those w?id have supposed
that it meant the United States collectively, will soon discover their mistakeby »,
le-examinatioh. The latter is ah absurdity, at least, not yet maintained.
3
Britain was entirely sovereign 5 it is wholly unimpof4
tant, whether we succeeded to her sovereignty, or ere*
a led one for ourselves. But to exhibit the logic of the
Judges, in its true character, rather thail for any exi¬
gency of the argument; let us suppose that Georgia
did succeed, to the claims of the British government
as represented; and see whether even in their own ad¬
missions, and exparte references, irresistible proof can¬
not be found; that their conclusions are erroneous.
The Court admits, that " the crown*' so far, " in¬
terfered with the internal affairs of the Indians," as to
u keep out the agents of foreign powers, who as tra¬
ders or otherwise, might seduce them into foreign al¬
liances." Now if the king assumed the right, to keep
out these agents, for the purpose of preventing the al¬
liances, does it not follow a fortiori ; that he assum¬
ed the right, of preventing the alliances themselves ?
Since then, Georgia has succeeded to the claims of the
crown; by what authority, does the government of the
U. States, contract alliances With the Cherokees ? The
Constitution permits it, only to regulate commerce
with them ; and by implication, to make such com¬
pacts, as may be necessary for the execution of that
power. Every treaty with them therefore, which
transcending that necessity, stipulates for the rights and
obligations, of a general protection, comes under the
head of those alliances, proscribed by the very reasoning
of the bench ; for what is stleh a treaty* but an alliance
with a power foreign to Georgia ? Let us now exam¬
ine, the principal passage quoted from the royal pro¬
clamation of IT63. These Are its words—"and we
do further declare-it to be our royal will and pleasure*
for the present as aforesaid, to reserve under our sover¬
eignty, protection and dominion for the use of the said
Indians, all the lands and territories" " lying to the
westward of the sources, of the rivers which fall into
the sea from the west, and northwest as aforesaid: and
o
10
we do hereby strictly forbid, on pain of our displea*
sure, all our loving subjects from making any purcha¬
ses or settlements, whatever, or taking possession ol any
of the lands above reserved, without our special leave
and licence for that purpose first obtained." The king
then, reserves those lands and territories, for the use of
the Indians—not recognizing any political right or pre¬
tension of theirs; but by his royal will and pleasure—
not permanently; but for the present; and expressly
under his sovereignty, protection, and dominion. Could
fatuity itself have made a quotation more suicidal ?
Grant Georgia 4he powers implied in this; and what
would remain for the re3t of the wrorld ? Comment
could only weaken the argument.
Those who are conversant with the annals of Eu¬
ropean colonies, will probably not entertain, a higher
respect for the history, than for the logic of the bench.
At another time, the subject may occupy our atten¬
tion. But for the present, wre shall decline examining
the historical evidences, of European sovereignty, in
America, for the following reasons : 1st. The politi¬
cal rights of the States, wrhen they ceased to be colo¬
nies, were founded on the. mutual assumption and
guaranty, of unqualified independence, or sovereignty,
without any reference to the degree of power, previ¬
ously possessed by Great Britain. 2d. If Great Bri¬
tain had limited herself in that sovereignty, to which
it is alleged, that the states have succeeded; it is clear;
that excluding as she did, all extraneous intervention
in her colonial affairs; she would never have permitted
any foreign judicature, to decide what was the extent,
of her self-imposed limitations. Consequently those
states which are her supposed successors, could not suf¬
fer the Supreme Court, to interpret the canons of their
local sovereignty, on a topic not submitted to it, by the
Constitution. Let the Judges ascertain what powei*
11
Georgia has relinquished, or delegated to the Federal
Government—that is their concern; not what pow¬
ers she originally possessed—for whatever their origin,
that is her concern alone.—3d. If the word " claims"
was intended, to signify those powers only, which had
been actually exercised by Great Britain ; that term
did not express all the powers, which she possessed in
relation to the Indians. For in addition to those which
had been exercised, she undeniably possessed likewise,
the sovereign prerogative, of remodelling her own in¬
stitutions—of exercising other powers, which had pre¬
viously lain dormant—of changing at her pleasure, the
whole system of her Indian government, without chal¬
lenge from any foreign state ; in the same manner, that
she might have altered, her revenue or road laws. To
this prerogative also* if to any, Georgia must have suc¬
ceeded, and this alone is sufficient, to extinguish the
whole dispute, concerning the extent of her claims.
4th. By the shewing of the Court, itself, in its own
historical exposition, Great Britain^ to whose claims
the states are said to have succeeded, did assert her so¬
vereignty, protection, and dominionh over the very
country in question,.
The Court did not think proper, to make a general
review, of the public acts of Georgia, in relation to the
Cherokees ;* and we should not have discerned the ne¬
cessity, of following it, in such a digression. When we
have leisure, to ramble so far from the point, we shall
probably extend' our excursion, to the statute booksj
and other historical monuments, of more than one
member of the national family. Whatever rights, ti¬
tles, or privileges, Georgia as a sovereign, either by
succession, or assumption, may at any time have allow¬
ed to the Cherokees, her sovereignty excluding all for-
. * This article was already sketched, when the writer looked over the opjnioa. of"
Jtr. Justice M*Lean. It did not seem to require an alteration of his plan.
12
eign interference, necessarily forbids; that any tribu¬
nals but her own, should determine their nature and
extent. Even if our public officers or assemblies,
mistaking their duty, have ever approved, or acquiesced
in the usurpations, of the Federal Government, their
error would be no* authority against the stale. They
were commissioned, to exercise and maintain its pow*
ers, not give them away.
Having thus seen; that the sovereignty of Geor«
gia is sustained, by the Declaration of Independence,
the Articles of Confederation, the Constitution of the
United States* and even by the acknowledged claims
©f the British crown, to which it is alleged that she
has succeeded; let us enquire whether there is any
process, by which the legislative, or treaty-making
powers of the Federal Government, can have altered
her political character.—The legislative may be spee¬
dily dispatched. Only those laws of the U. States
made in pursuance of the constitution, are declared
to be the supreme laws of the land. When Congress
passed an act for the regulation of trade, [commerce]
" and intercourse" with the Indian tribes; it was guilty
either of usurpation, or of an idle tautology; since
the constitution delegated the right, to regulate com¬
merce only, with such intercourse as was necessarily
implied in that term. The same principle is applica¬
ble to every similar case-—the point is too plain for dis¬
putation.—Has the treaty-making power greater lati¬
tude, in this respect, than the legislative ?
When the several American states, uniting for that
purpose, formed a distinct Federal Government; they
placed a new member, in the society of nations. At its
birth, it acquired the privileges, and incurred the obli¬
gations, of that national law, which defines the rights,
and regulates the intercourse of all. The constitution
13
does not best@.w 011 it, any specific diplomatic capacities;
but declares in the general, that certain functionaries
shall exercise, the treaty-making1 power; Those who
make treaties^ must of course determine with whom, &
for what, they are to be made. The President therefore,
with the concurrence of two thircfe of the senate, in his
treaty ^making capacity, might recognize the sovereignty,
of Martinique, of Jamaica, and of Cuba; hut the gov¬
ernment, by taking measures conformable to the recogni¬
tion, would unquestionably give just cause of war, to
France, to England, and to "Spain. Considered in the
abstract, the treaty-making power, by recognizing the
independence of the Cherokees, might invite the Uni¬
ted States, to assume a similar hostile relation to Geor¬
gia. But while common sense, and common justice
prevail, there are circumstances, which must forever
preclude such a possibility. The declaration of the 4th
of July, 1776, in which the thirteen united colonies,
mutually guarantied to each of the number, its freedom
and independence, is stiU obligatory; as is also the im¬
plied guaranty of individual sovereignty, between the
same parties, contained in the articles of confederation.
Nor plainly as this is deducible, from the documents
themselves, has it been left to a mere inference. By the
first section, of the ninth article, of the constitution, it is
declared; that " All debts contracted, and engagements
entered into, before the adoption of this constitution,
shall be as valid against the United States, under this
constitution, as under the confederation." In the re-
cords of the nation, there is not an engagement more
solemn, positive, and explicit, than that, which is con¬
tained in the Declaration of Independence. Can a trea¬
ty, incompatible with the validity of that engagement,
be considered as binding. Treaties are the supreme
law of the land; but what treaties ?—" all treaties made
or to be made, under the authority of the U. States."—
What is the authority of the United States ?•—4he just
14
power of the United States—that delegated to them by
the constitution—not an extra-constitutional power,
whose acts the citizen would not be hound to obey, or
the Court have any right to sustain. Admit for a mo¬
ment the contrary supposition; that a treaty may abro¬
gate the constitution ; and what a torrent of absurdi¬
ties, at once overwhelms us! By a compact with his
Holiness the Pope, all public worship in Louisiana,
might be prohibited, unless conformable to the rites, of
the Roman Catholic Church. Don Miguel might se¬
cure himself, against the republican rudeness, of the
American press, by a provision; that nothing relative t«
Portugal, should5 6e published in our journal^^without
the imprimatur of his consular agents—Leaving the ca¬
ses of pontiff & king, to the consideration of the Court;
as they are not likely to receive that honour, from any
body else; we shall pass on to our conclusion—that
every treaty, incompatible with the engagement, which
guaranties the freedom, independence, sovereignty of
Georgia, within her colonial limits, is contrary to the
constitution, and consequently void*
This summary exposition, of the treaty-making
poweiy would be amply sufficient; but let us try what
deductions may be made, under this head of the sub¬
ject, from the cardinal principle of the Court; that
Georgia has succeeded, to the claims of^Great Britain.
Is there a reasonable creature who believes; that Great
Britain would have allowed France, Spain, or any oth¬
er po wer, to make treaties with the Cherakees, assum¬
ing the right, to protect them, against the legislative, or
executive acts, of the mother country ? But it so hap¬
pens; that we are not driven to the necessity of reason¬
ing on what would have been. Great Britain lost
Georgia, and twelve other colonies ; but she preserves
the two Canadas, in which, there are various tribes or
nations of Indians. She retains in those provinces, the
IS
l ights, to which the Court asserts; that Georgia tia$
succeeded here. —Grave and learned Judges ! Daniels of
the federal judgment seat! hold up youf hands—your
laces too if it be possible, and tell us, whether upon your
consciences you believe ; that the United States might
justly form treaties, with Canadian Indians, involving
pretensions like those, which you design to enforce a-
gainst Georgia ? Blush ! but keep in reserve one deep-
er tint. The U. States in obtaining Louisiana by ces¬
sion, succeeded-to the claims of France, which accord¬
ing to the Court, were substantial!}' the same, as those of
Great Britain. For, both France and Spain, the previ¬
ous sovereigns, are associated with her, in the class of
European discoverers, who are all supposed to have as¬
sumed, similar rights, in relation to their colonial Indi¬
ans. Since that cession, would the United States ever
have permitted England, France, Spain or any other
power, to maintain treaties, with the Mandans, or Os-
ages, creating relations like those n8w urged against
Georgia ? Does the Court expect to avoid the force of
the argument, by contending; that while its doctrine
admits a right, to exclude the intervention of European
potentates, it goes no farther ? If so futile a discrimin¬
ation was really contemplated; let us bring it at once
to a decisive test. Would the U- States have permit¬
ted treaties like those in question, to be maintained be¬
tween the Indians of Louisiana;* and an Asiatic, Af¬
rican, or Europeo-American power ? Waving an im¬
mediate application of the two former eases, which
could at present be only theoretical; let us come to the
latter, which exists on our very borders, and is emin¬
ently practical. Alongside of Louisiana lies Mexico, a
Europeo-American power, a confederated republic, a
government of precisely the same pedigree, with that
of the United States. Now, Georgia, by supposition
* We refer of course, to the original pro via 05 ut Lcuis'uiUkj now ir^o
icreril states and territories.
has Certain claims, in relation to the Cherokees—the
United States have the same claims, in relation to the
Indians of Louisiana —The U. States pretend to the
right of intervening^ between Georgia, and the Chero¬
kees—can Mexico intervene between the U. States, and
the Indians of Louisiana? i. e. can the very same spe¬
cies of government, interfere with the very same spe¬
cies of claims Ha ! It is now their bull that menaces
our ox—let them beware of the Court!
The World h^s still Some o£ the slaves of syllables^
Much stress hasljeen laid, on the etinployinfeht of the
terms " nation" and " treaty," in transactions with the
Indians. It is contended; that the application of the one to
an Indian people, and of the other to a compact entered
into with them, implies an acknowledgment, of their
political independence. The court would fain turn
this verbal nicety, to good account, by something like the
following induction.—The constitution declares that
44 all treaties made, or which shall be made^ under the
authority of the United States, shall be the supreme
law of the land."—At Hopewell in the year 1785, be¬
fore the adoption of the constitution, the United States
made a "treaty," with the Cherokees.—-That word
" treaty" implying the recognition of political indepen¬
dence, the constitution itself, has established the sov¬
ereignty of the Cherokees! Such is the train of argu¬
ment, that winds with serpent insinuation, through the
reasoning of the bench. But this pretension iijcp so.
many others, is shivered against the mutual guaranty
of the States, proclaimed in the Declaration of Inde¬
pendence, and implied in the Articles of Confederation,
if the treaty of Hopewell in 1785, did import a denial
of the sovereignty of Georgia, within her colonial lim¬
its, it was void; for it was not made under the author¬
ity of the United States, but in violation of their most
solemn pledges—it was an act of usurpation. This is
17
conclusive. But it may be added; that the character
of the treat/, is totally misrepresented. If it derogated
from the claims of Georgia, it was not by acknowledg¬
ments to the Indians, but by the assumptions of the IL
States. Those who will take the trouble, to peruse that
document, must perceive at a glance, what the Court
has vainly endeavoured to disguise; that although bear¬
ing the name of treaty, it is virtually, a dictation of
law to ths Cherokees, irreconcilable with any notion
of their sovereignty.-—So much for things. Let us
now return to our words.—Englishmen must be con¬
sidered tolerable authority, in their ownlanguage; and
Great Britain, to whose political, and territorial claims,
we are said to have succeeded, may be presumed to
have known, the meaning of expressions, employed by
herself, in relation to those claims. ; : Where, indeed,
could we more reasonably expect, to find an explanation
of these inherited terms, than in the documents of our
predecessors, illustrated by their practice ? It has al¬
ready been seen, that the royal proclamation of 1763,
asserted sovereignty, protection, and dominion, over
those territories, a part of which is now occupied by
the Cherokees; and all the world moreover knows,
without reference to any proclamation; that Great
Britain permitted no foreign interference, whatever, in
her colonial affairs. Under these Circumstances, in the
year 1773, through the agency of Sir James Wright,
and superintendent Stuart, the British King made a
"treaty," yes \ & Hreaty* at Augusta, with the Chero¬
kee and Creek Indians ; and in this " treaty," the Indi¬
ans are denominated, indiscriminately, "nations and
tribes." Bid the King intend by this act, to renounce
the claims of 1763, and to acknowledge, either Chero¬
kees or Creeks* as an independent people, who might
fori&j&lliaiicesi with any foreign state I Has the wildest
3.
1"S
brain ever suggested such a supposition ? If ilie a-
gents of the British Government had attached to these
bugbear words, the same meaning imputed to them
by the Court; since they confessedly enjoyed the pri¬
vilege, of selecting their own phraseology : would they
not simply have written, " compact" or " agreement,"
instead of " treaty"; and omitted the word " nations"
altogether ? Or are we to believe; that they really at¬
tempted, with traitorous absurdity, to dethrone their
own sovereign, by a stroke of the pen; to obliterate
his pretensions, by this gratuitous baptism, of the ink¬
stand ? In truth, the Court makes but an indifferent
figure, in this puerile quibbling. It has argued like a
martinet in logic, a sophomore wrangler—it has par¬
aded technical subtilities, in a case, where they are not
applicable—it has been employed, in the very unpro¬
fitable occupation, of " cutting blocks with a razor."
Ill construing the treaties, between the U. States
and the Cherokees, the Court appears to be, rather ad¬
vocate, than judge; wresting every article with zeal¬
ous ingenuity, in favour of the latter. But it is obvi¬
ous, that the structure of our argument, does not de¬
mand, an enquiry on this subject.—Grant that the con¬
struction has been correct, and we are at once brought
to the question; whether the government of the U.
States should violate its earliest obligations—those to
white men, for the sake of observing subsequent en¬
gagements, with Indians, which it had no authority to
make. Those who cannot promptly, answer the
question for themselves, would not probably, be much
enlightened by a discussion.
With the arguments of the bench, we have done.
If the claims of Georgia cannot be vindicated, by the
19
Declaration of Independence, the Articles of Confe¬
deration, the Constitution of the United States, the ve¬
ry quotations and admissions, of the bench itself; why
then—-speech has lost its use-—english has no longer a
meaning ; and the Court may triumph at once, over
the Language and the Laws*
Elsewhere it is urged; that Georgia has long been
c? ' o o
silent, under those acts of usurpation, of which she now
complains; and . that their policy was sanctioned, in
some instances at least, by the votes, of her own sena¬
tors and, representatives. The answer is easy. The
senators and representatives of Georgia, were not di¬
plomatic agents, authorized to cede, any particle of her
sovereignty-—they were functionaries, appointed to act
according. to the principles, of the constitution; and
had as little right, to invade her prerogatives, as the
senators and,representatives, of Massachusetts, or Ken¬
tucky. Her silence could under > no circumstances,
have forfeited her rights.; and for many years, it has
been imputable to a cause, as honourable to her, as it
is unfortunately otherwise, to the general government.
In the year 1802, Georgia ceded to the United States,
that vast territory, now embracing the states of Ala¬
bama and Mississippi; in consideration of which, the
United States bound itself, "as early as the-same could
be peaceably obtained, on reasonable terms," to extin¬
guish for the benefit of Georgia, the Indian title in all
her unsettled domain, not ceded to the Union—a part
of which domain, is now occupied by the Cherokees.
This compact, which was firmly relied on, removed all
solicitude, for the past, the present,' or the future; and
Georgia did not deem it necessary, to agitate the coun¬
try, by the discussion of questions, which appeared
only speculative, while her practical interests wwere
considered secure. Is this then a fault ? Do qui
countrymen reproach us, with having expected; that
their government would prove ultimately honest ? It
was an error we admit—-that has been too clearly de¬
monstrated by the event. Georgia dealt with the
United States, on terms of honour; and the conditions
of the agreement, left great latitude to men, who were
incapable of feeling; that a confidence reposed is the
highest of obligations. But though bound, by a com¬
pact so loose, nothing can be plainer, than that the-go¬
vernment has been guilty, of the grossest breach of
faith. She had promised, to extinguish the Indian title,
" as early as the same could be peaceably obtained, on
reasonable terms." On what, did the arrival of this
contingency, so much depend, as the disposition of the
Indians, to emigrate from the territory in question r
Was it honourable—was it fair dealing under these
circumstances, to diminish the willingness of the In¬
dians to migrate, by positive acts of her own, even
supposing them to be constitutional ? Owing a debt
long due, whose discharge was prevented, by an ex¬
traneous impediment; instead of endeavouring to re¬
move that impediment, she exerts her own power, and
usurps that of others, to prevent the possibility, of its
removal. Georgia had discerned, and denounced the
signs of such a policy—they are no longer signs. In
the face of the compact of 1802, the Court with ad¬
mirable composure, informs us, that from an Act of
1819, it is evident, the general government had already
formed, a "settled purpose," to "fix" the Cherokees,
within the limits of Georgia.—Serene assurance!
Here then is the sanctity of Federal obligation ! Is it
wonderful, that such a cool, highbred insolence of
wrong, should arouse the pride, and indignation of
Georgia ! The length and complication of the process,
cannot affect, the moral character of the result. If the
United States, instead of a single, plain act of injus-
•21
tice, has chosen to construct a regular drama, of ini¬
quity, with legislation, diplomacy, and judicature for
dramatis personae ; it may redound to the honour of
her ingenuity; but instead of diminishing the crime,
it has only increased the number of the criminals.
We have made a contract with her, as one. With
Protean craft, she endeavours to elude us, by devices,
which in a private individual, would be instantly stig¬
matized as swindling. Does the word sound harshly?
Aye! It is harsh in the extreme.—But whose is the
fault?—-Ours?—-No ! It is the fault of those, who have
been guilty of the delinquency; of the language,
which affords, no gentler term to express it. In an
age, when truth, putting aside the gentlemen of the
antechamber, arraigns royalty to its face ; shall the
liberty cap shelter a duplicity, which the diadem could
no longer protect ? If the government, of the United
States, does really feel, that she has a vocation to preach
political morality, to the gentiles-—be it so-—a call is
not to be resisted. But let her take care; that she
does not, like some other missionaries, provoke the sug¬
gestion; that her doctrine has greatly, the advantage of
her life. In short, before she undertakes to inculcate,
the higher virtues abroad; "let her remember to prac¬
tice, common honesty at home.
We cannot part from our subject, without turning
again to the judges of that ill omened bench; & lament¬
ing, that John Marshall should be found, conspicuous
among them. For his associates in error-^men by "the
catalogue"—the every day food of oblivion, whose
earthward names, all Arabia could not embalm; let
them pass to their destiny. But the tame of Marshall
belongs to history, and we grieve to behold it, go tar¬
nished to her archives. One excuse, and one only can
be plead for him—" Longa Tithonum minuit senec-
fus" Let hi in hasten from a field* which promises
him no longer a trophy; while yet, the charitable
apology of the poet, may serve as a cover, for the re*
treat, of his shattered reputation.
In these momentous circumstances, the precise
policy, which Georgia should adopt, remains to be de¬
termined. Let us trust; that whatever contingencies
may arise; she will want neither courage, to sustain her
honour, nor counsel, to temper her courage. She has
no passion for change—she retains the strongest attach¬
ment, to, the system of her adoption. But if her own
government is to wrong her, with a bad faith, which
would not be endurable, from a stranger—if complaints
of one injury, are to be answered, by the infliction of a
greater—-if she is now to be bullied, because she will
not submit, to be quietly duped; it needs no spirit of
divination, to pronounce; that the portents are evil.
Yet we do not despair. A case so plain* appeals to the
common sense of our countrymen. Georgia sues for
no favour—advances no factitious pretension, of yester¬
day. She contends for rights alone—rights coeval
with the Republic, and emblazoned, in the very register
of its birth. Let the sober wisdom of the nation, pon¬
der on her claims, unbiassed by the flippancy, of pert;
fanaticism, or the astute follies, of scholastic jurispru¬
dence. Under such correction, all may yet be well.
But if this last hope is to fail—if Georgia is indeed
proscribed—if insulting tyranny, marking her for a vic¬
tim, presents to'her option, the sole alternatives, of dan¬
ger and degradation.—Speak tombs of the Revolution !
For you can proclaim her choice!
OGLETHORPE.