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quote from Louis pertaining to sacagewea

Posted by jwilhelm21 on December 29, 2009

Lewis, February 11, 1805

“About five oClock this evening one of the wives of Charbono [Sacajawea] was delivered of a fine boy. It is worthy of remark that this was the first child which this woman had boarn, and as is common in such cases her labour was tedious and the pain violent . . .” (80).

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Liberator Editorial, First Issue

Posted by creyes24 on December 29, 2009

COMMENCEMENT OF THE LIBERATOR.

In the month of August, I issued proposals for publishing ‘The Liberator’ in Washington city; but the enterprise, though hailed approvingly in different sections of the country, was palsied by public indifference. Since that time, the removal of the ‘Genius of Universal Emancipation’ to the Seat of Government has rendered less imperious the establishment of a similar periodical in that quarter.

During my recent tour for the purpose of exciting the minds of the people by a series of discourses on the subject of slavery, every place that I visited gave fresh evidence of the fact, that a greater revolution in public sentiment was to be effected in the free States–and particularly in New England–than at the South. I found contempt more bitter, opposition more active, detraction more relentless, prejudice more stubborn, and apathy more frozen, than among slave owners themselves. Of course, there were individual exceptions to the contrary. This state of things afflicted, but did not dishearten me. I determined, at every hazard, to lift up the standard of emancipation in the eyes of the nation, within sight of Bunker Hill, and in the birth-place of liberty. That standard is now unfurled; and long may it float, unhurt by the spoliations of time or the missiles of a desperate foe; yea, till every chain be broken, and every bondman set free! Let Southern oppressors tremble; let their secret abettors tremble; let their Northern apologists tremble; let all the enemies of the persecuted blacks tremble.

Assenting to the ‘self-evident truths’ maintained in the American Declaration of Independence, ‘that all men are created equal, and endowed by their Creator with certain inalienable rights–among which are life, liberty, and the pursuit of happiness,’ I shall strenuously contend for the immediate enfranchisement of our slave population. In Park Street Church, on the Fourth of July, 1829, in an address on slavery, I unreflectingly assented to the popular but pernicious doctrine of gradual abolition. I seize this opportunity to make a full and unequivocal recantation, and thus publicly to ask pardon of my God, of my country, and of my brethren, the poor slaves, for having uttered a sentiment so full of timidity, injustice and absurdity. A similar recantation, from my pen, was published in the ‘Genius of Universal Emancipation,’ at Baltimore, in September, 1829. My conscience is now satisfied.

I am aware, that many object to the severity of my language; but is there not cause for severity? I will be as harsh as truth, and as uncompromising as justice. On this subject, I do not wish to think, or speak, or write, with moderation. No! no! Tell a man, whose house is on fire, to give a moderate alarm; tell him to moderately rescue his wife from the hands of the ravisher; tell the mother to gradually extricate her babe from the fire into which it has fallen; but urge me not to use moderation in a cause like the present! I am in earnest. I will not equivocate–I will not excuse–I will not retreat a single inch–and I will be heard. The apathy of the people is enough to make every statue leap from its pedestal, and to hasten the resurrection of the dead.

It is pretended, that I am retarding the cause of emancipation by the coarseness of my invective, and the precipitancy of my measures. The charge is not true. On this question, my influence, humble as it is, is felt at this moment to a considerable extent, and shall be felt in coming years–not perniciously, but beneficially–not as a curse, but as a blessing; and posterity will bear testimony that I was right. I desire to thank God, that he enables me to disregard ‘the fear of man which bringeth a snare,’ and to speak his truth in its simplicity and power. And here I close with this fresh dedication:–

‘Oppression! I have seen thee, face to face, And met thy cruel eye and cloudy brow; But thy soul-withering glance I fear not now–For dread to prouder feelings doth give place, Of deep abhorrence! Scorning the disgrace Of slavish knees that at thy footstool bow, I also kneel–but with far other vow Do hail thee and thy herd of hirelings base:–I swear, while life-blood warms my throbbing veins, Still to oppose and thwart, with heart and hand, Thy brutalizing sway–till Africa’s chains Are burst, and Freedom rules the rescued land, Trampling Oppression and his iron rod:–Such is the vow I take–so help me, God!’

Boston, January 1, 1831.

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Annual Message to Congress (1831) by Andrew Jackson

Posted by creyes24 on December 29, 2009

Fellow Citizens of the Senate and of the House of Representatives:

The representation of the people has been renewed for the 22nd time since the Constitution they formed has been in force. For near half a century the Chief Magistrates who have been successively chosen have made their annual communications of the state of the nation to its representatives. Generally these communications have been of the most gratifying nature, testifying an advance in all the improvements of social and all the securities of political life. But frequently and justly as you have been called on to be grateful for the bounties of Providence, at few periods have they been more abundantly or extensively bestowed than at the present; rarely, if ever, have we had greater reason to congratulate each other on the continued and increasing prosperity of our beloved country. Agriculture, the first and most important occupation of man, has compensated the labors of the husband-man with plentiful crops of all the varied products of our extensive country. Manufactures have been established in which the funds of the capitalist find a profitable investment, and which give employment and subsistence to a numerous and increasing body of industrious and dexterous mechanics. The laborer is rewarded by high wages in the construction of works of internal improvement, which are extending with unprecedented rapidity. Science is steadily penetrating the recesses of nature and disclosing her secrets, while the ingenuity of free minds is subjecting the elements to the power of man and making each new conquest auxiliary to his comfort. By our mails, whose speed is regularly increased and whose routes are every year extended, the communication of public intelligence and private business is rendered frequent and safe; the intercourse between distant cities, which it formerly required weeks to accomplish, is now effected in a few days; and in the construction of rail roads and the application of steam power we have a reasonable prospect that the extreme parts of our country will be so much approximated and those most isolated by the obstacles of nature rendered so accessible as to remove an apprehension some times entertained that the great extent of the Union would endanger its permanent existence. If from the satisfactory view of our agriculture, manufactures, and internal improvements we turn to the state of our navigation and trade with foreign nations and between the States, we shall scarcely find less cause for gratulation. A beneficent Providence has provided for their exercise and encouragement an extensive coast, indented by capacious bays, noble rivers, inland seas; with a country productive of every material for ship building and every commodity for gainful commerce, and filled with a population active, intelligent, well-informed, and fearless of danger. These advantages are not neglected, and an impulse has lately been given to commercial enterprise, which fills our ship yards with new constructions, encourages all the arts and branches of industry connected with them, crowds the wharves of our cities with vessels, and covers the most distant seas with our canvas. Let us be grateful for these blessings to the beneficent Being who has conferred them, and who suffers us to indulge a reasonable hope of their continuance and extension, while we neglect not the means by which they may be preserved. If we may dare to judge of His future designs by the manner in which His past favors have been bestowed, He has made our national prosperity to depend on the preservation of our liberties, our national force on our Federal Union, and our individual happiness on the maintenance of our State rights and wise institutions. If we are prosperous at home and respected abroad, it is because we are free, united, industrious, and obedient to the laws. While we continue so we shall by the blessing of Heaven go on in the happy career we have begun, and which has brought us in the short period of our political existence from a population of 3,000,000 to 13,000,000; from 13 separate colonies to 24 united States; from weakness to strength; from a rank scarcely marked in the scale of nations to a high place in their respect. This last advantage is one that has resulted in a great degree from the principles which have guided our intercourse with foreign powers since we have assumed an equal station among them, and hence the annual account which the Executive renders to the country of the manner in which that branch of his duties has been fulfilled proves instructive and salutary. The pacific and wise policy of our Government kept us in a state of neutrality during the wars that have at different periods since our political existence been carried on by other powers; but this policy, while it gave activity and extent to our commerce, exposed it in the same proportion to injuries from the belligerent nations. Hence have arisen claims of indemnity for those injuries. England, France, Spain, Holland, Sweden, Denmark, Naples, and lately Portugal had all in a greater or less degree infringed our neutral rights. Demands for reparation were made upon all. They have had in all, and continue to have in some, cases a leading influence on the nature of our relations with the powers on whom they were made. Of the claims upon England it is unnecessary to speak further than to say that the state of things to which their prosecution and denial gave rise has been succeeded by arrangements productive of mutual good feeling and amicable relations between the two countries, which it is hoped will not be interrupted. One of these arrangements is that relating to the colonial trade which was communicated to Congress at the last session; and although the short period during which it has been in force will not enable me to form an accurate judgment of its operation, there is every reason to believe that it will prove highly beneficial. The trade thereby authorized has employed to [1831-09-30] upward of 30K tons of American and 15K tons of foreign shipping in the outward voyages, and in the inward nearly an equal amount of American and 20K only of foreign tonnage. Advantages, too, have resulted to our agricultural interests from the state of the trade between Canada and our Territories and States bordering or the St. Lawrence and the Lakes which may prove more than equivalent to the loss sustained by the discrimination made to favor the trade of the northern colonies with the West Indies. After our transition from the state of colonies to that of an independent nation many points were found necessary to be settled between us and Great Britain. Among them was the demarcation of boundaries not described with sufficient precision in the treaty of peace. Some of the lines that divide the States and Territories of the United States from the British Provinces have been definitively fixed. That, however, which separates us from the Provinces of Canada and New Brunswick to the North and the East was still in dispute when I came into office, but I found arrangements made for its settlement over which I had no control. The commissioners who had been appointed under the provisions of the treaty of Ghent having been unable to agree, a convention was made with Great Britain by my immediate predecessor in office, with the advice and consent of the Senate, by which it was agreed “that the points of difference which have arisen in the settlement of the boundary line between the American and British dominions, as described in the 5th article of the treaty of Ghent, shall be referred, as therein provided, to some friendly sovereign or State, who shall be invited to investigate and make a decision upon such points of difference”; and the King of the Netherlands having by the late President and His Britannic Majesty been designated as such friendly sovereign, it became my duty to carry with good faith the agreement so made into full effect. To this end I caused all the measures to be taken which were necessary to a full exposition of our case to the sovereign arbiter, and nominated as minister plenipotentiary to his Court a distinguished citizen of the State most interested in the question, and who had been one of the agents previously employed for settling the controversy. On [1831-01-10] His Majesty the King of the Netherlands delivered to the plenipotentiaries of the United States and of Great Britain his written opinion on the case referred to him. The papers in relation to the subject will be communicated by a special message to the proper branch of the Government with the perfect confidence that its wisdom will adopt such measures as will secure an amicable settlement of the controversy without infringing any constitutional right of the States immediately interested. It affords me satisfaction to inform you that suggestions made by my direction to the chargé d’affaires of His Britannic Majesty to this Government have had their desired effect in producing the release of certain American citizens who were imprisoned for setting up the authority of the State of Maine at a place in the disputed territory under the actual jurisdiction of His Britannic Majesty. From this and the assurances I have received of the desire of the local authorities to avoid any cause of collision I have the best hopes that a good understanding will be kept up until it is confirmed by the final disposition of the subject. The amicable relations which now subsist between the United States and Great Britain, the increasing intercourse between their citizens, and the rapid obliteration of unfriendly prejudices to which former events naturally gave rise concurred to present this as a fit period for renewing our endeavors to provide against the recurrence of causes of irritation which in the event of war between Great Britain and any other power would inevitably endanger our peace. Animated by the sincerest desire to avoid such a state of things, and peacefully to secure under all possible circumstances the rights and honor of the country, I have given such instructions to the minister lately sent to the Court of London as will evince that desire, and if met by a correspondent disposition, which we can not doubt, will put an end to causes of collision which, without advantage to either, tend to estrange from each other two nations who have every motive to preserve not only peace, but an intercourse of the most amicable nature. In my message at the opening of the last session of Congress I expressed a confident hope that the justice of our claims upon France, urged as they were with perseverance and signal ability by our minister there, would finally be acknowledged. This hope has been realized. A treaty has been signed which will immediately be laid before the Senate for its approbation, and which, containing stipulations that require legislative acts, must have the concurrence of both houses before it can be carried into effect. By it the French Government engage to pay a sum which, if not quite equal to that which may be found due to our citizens, will yet, it is believed, under all circumstances, be deemed satisfactory by those interested. The offer of a gross sum instead of the satisfaction of each individual claim was accepted because the only alternatives were a rigorous exaction of the whole amount stated to be due on each claim, which might in some instances be exaggerated by design, in other over-rated through error, and which, therefore, it would have been both ungracious and unjust to have insisted on; or a settlement by a mixed commission, to which the French negotiators were very averse, and which experience in other cases had shewn to be dilatory and often wholly inadequate to the end. A comparatively small sum is stipulated on our part to go to the extinction of all claims by French citizens on our Government, and a reduction of duties on our cotton and their wines has been agreed on as a consideration for the renunciation of an important claim for commercial privileges under the construction they gave to the treaty for the cession of Louisiana. Should this treaty receive the proper sanction, a source of irritation will be stopped that has for so many years in some degree alienated from each other two nations who, from interest as well as the remembrance of early associations, ought to cherish the most friendly relations; an encouragement will be given for perseverance in the demands of justice by this new proof that if steadily pursued they will be listened to, and admonition will be offered to those powers, if any, which may be inclined to evade them that they will never be abandoned; above all, a just confidence will be inspired in our fellow citizens that their Government will exert all the powers with which they have invested it in support of their just claims upon foreign nations; at the same time that the frank acknowledgment and provision for the payment of those which were addressed to our equity, although unsupported by legal proof, affords a practical illustration of our submission to the divine rule of doing to others what we desire they should do unto us. Sweden and Denmark having made compensation for the irregularities committed by their vessels or in their ports to the perfect satisfaction of the parties concerned, and having renewed the treaties of commerce entered into with them, our political and commercial relations with those powers continue to be on the most friendly footing. With Spain our differences up to [1819-02-22] were settled by the treaty of Washington of that date, but at a subsequent period our commerce with the States formerly colonies of Spain on the continent of America was annoyed and frequently interrupted by her public and private armed ships. They captured many of our vessels prosecuting a lawful commerce and sold them and their cargoes, and at one time to our demands for restoration and indemnity opposed the allegation that they were taken in the violation of a blockade of all the ports of those States. This blockade was declaratory only, and the inadequacy of the force to maintain it was so manifest that this allegation was varied to a charge of trade in contraband of war. This, in its turn, was also found untenable, and the minister whom I sent with instructions to press for the reparation that was due to our injured fellow citizens has transmitted an answer to his demand by which the captures are declared to have been legal, and are justified because the independence of the States of America never having been acknowledged by Spain she had a right to prohibit trade with them under her old colonial laws. This ground of defense was contradictory, not only to those which had been formerly alleged, but to the uniform practice and established laws of nations, and had been abandoned by Spain herself in the convention which granted indemnity to British subjects for captures made at the same time, under the same circumstances, and for the same allegations with those of which we complain. I, however, indulge the hope that further reflection will lead to other views, and feel confident that when His Catholic Majesty shall be convinced of the justice of the claims his desire to preserve friendly relations between the two countries, which it is my earnest endeavor to maintain, will induce him to accede to our demand. I have therefore dispatched a special messenger with instructions to our minister to bring the case once more to his consideration, to the end that if (which I can not bring myself to believe) the same decision (that can not but be deemed an unfriendly denial of justice) should be persisted in the matter may before your adjournment be laid before you, the constitutional judges of what is proper to be done when negotiation for redress of injury fails. The conclusion of a treaty for indemnity with France seemed to present a favorable opportunity to renew our claims of a similar nature on other powers, and particularly in the case of those upon Naples, more especially as in the course of former negotiations with that power our failure to induce France to render us justice was used as an argument against us. The desires of the merchants, who were the principal sufferers, have therefore been acceded to, and a mission has been instituted for the special purpose of obtaining for them a reparation already too long delayed. This measure having been resolved on, it was put in execution without waiting for the meeting of Congress, because the state of Europe created an apprehension of events that might have rendered our application ineffectual. Our demands upon the Government of the two Sicilies are of a peculiar nature. The injuries on which they are founded are not denied, nor are the atrocity and perfidy under which those injuries were perpetrated attempted to be extenuated. The sole ground on which indemnity has been refused is the alleged illegality of the tenure by which the monarch who made the seizures held his crown. This defense, always unfounded in any principle of the law of nations, now universally abandoned, even by those powers upon whom the responsibility for the acts of past rulers bore the most heavily, will unquestionably be given up by His Sicilian Majesty, whose counsels will receive an impulse from that high sense of honor and regard to justice which are said to characterize him; and I feel the fullest confidence that the talents of the citizen commissioned for that purpose will place before him the just claims of our injured citizens in such as light as will enable me before your adjournment to announce that they have been adjusted and secured. Precise instructions to the effect of bringing the negotiation to a speedy issue have been given, and will be obeyed. In the late blockade of Terceira some of the Portuguese fleet captured several of our vessels and committed other excesses, for which reparation was demanded, and I was on the point of dispatching an armed force to prevent any recurrence of a similar violence and protect our citizens in the prosecution of their lawful commerce when official assurances, on which I relied, made the sailing of the ships unnecessary. Since that period frequent promises have been made that full indemnity shall be given for the injuries inflicted and the losses sustained. In the performance there has been some, perhaps unavoidable, delay; but I have the fullest confidence that my earnest desire that this business may at once be closed, which our minister has been instructed strongly to express, will very soon be gratified. I have the better ground for this hope from the evidence of a friendly disposition which that Government has shown an actual reduction in the duty on rice the produce of our Southern States, authorizing the anticipation that this important article of our export will soon be admitted on the same footing with that produced by the most favored nation. With the other powers of Europe we have fortunately had no cause of discussions for the redress of injuries. With the Empire of the Russias our political connection is of the most friendly and our commercial of the most liberal kind. We enjoy the advantages of navigation and trade given to the most favored nation, but it has not yet suited their policy, or perhaps has not been found convenient from other considerations, to give stability and reciprocity to those privileges by a commercial treaty. The ill health of the minister last year charged with making a proposition for that arrangement did not permit him to remain at St. Petersburg, and the attention of that Government during the whole of the period since his departure having been occupied by the war in which it was engaged, we have been assured that nothing could have been effected by his presence. A minister will soon be nominated, as well to effect this important object as to keep up the relations of amity and good understanding of which we have received so many assurances and proofs from His Imperial Majesty and the Emperor his predecessor. The treaty with Austria is opening to us an important trade with the hereditary dominions of the Emperor, the value of which has been hitherto little known, and of course not sufficiently appreciated. While our commerce finds an entrance into the south of Germany by means of this treaty, those we have formed with the Hanseatic towns and Prussia and others now in negotiation will open that vast country to the enterprising spirit of our merchants on the north—a country abounding in all the materials for a mutually beneficial commerce, filled with enlightened and industrious inhabitants, holding an important place in the politics of Europe, and to which we owe so many valuable citizens. The ratification of the treaty with the Porte was sent to be exchanged by the gentleman appointed our chargé d’affaires to that Court. Some difficulties occurred on his arrival, but at the date of his last official dispatch he supposed they had been obviated and that there was every prospect of the exchange being speedily effected. This finishes the connected view I have thought it proper to give of our political and commercial relations in Europe. Every effort in my power will be continued to strengthen and extend them by treaties founded on principles of the most perfect reciprocity of interest, neither asking nor conceding any exclusive advantage, but liberating as far as it lies in my power the activity and industry of our fellow citizens from the shackles which foreign restrictions may impose. To China and the East Indies our commerce continues in its usual extent, and with increased facilities which the credit and capital of our merchants afford by substituting bills for payments in specie. A daring outrage having been committed in those seas by the plunder of one of our merchant-men engaged in the pepper trade at a port in Sumatra, and the piratical perpetrators belonging to tribes in such a state of society that the usual course of proceedings between civilized nations could not be pursued, I forthwith dispatched a frigate with orders to require immediate satisfaction for the injury and indemnity to the sufferers. Few changes have taken place in our connections with the independent States of America since my last communication to Congress. The ratification of a commercial treaty with the United Republics of Mexico has been for some time under deliberation in their Congress, but was still undecided at the date of our last dispatches. The unhappy civil commotions that have prevailed there were undoubtedly the cause of the delay, but as the Government is now said to be tranquillized we may hope soon to receive the ratification of the treaty and an arrangement for the demarcation of the boundaries between us. In the mean time, an important trade has been opened with mutual benefit from St. Louis, in the State of Missouri, by caravans to the interior Provinces of Mexico. This commerce is protected in its progress through the Indian countries by the troops of the United States, which have been permitted to escort the caravans beyond our boundaries to the settled part of the Mexican territory. From Central America I have received assurances of the most friendly kind and a gratifying application for our good offices to remove a supposed indisposition toward that Government in a neighboring State. This application was immediately and successfully complied with. They gave us also the pleasing intelligence that differences which had prevailed in their internal affairs had been peaceably adjusted. Our treaty with this Republic continues to be faithfully observed, and promises a great and beneficial commerce between the two countries—a commerce of the greatest importance if the magnificent project of a ship canal through the dominions of that State from the Atlantic to the Pacific Ocean, now in serious contemplation, shall be executed. I have great satisfaction in communicating the success which has attended the exertions of our minister in Colombia to procure a very considerable reduction in the duties on our flour in that Republic. Indemnity also has been stipulated for injuries received by our merchants from illegal seizures, and renewed assurances are given that the treaty between the two countries shall be faithfully observed. Chili and Peru seem to be still threatened with civil commotions, and until they shall be settled disorders may naturally be apprehended, requiring the constant presence of a naval force in the Pacific Ocean to protect our fisheries and guard our commerce. The disturbances that took place in the Empire of Brazil previously to and immediately consequent upon the abdication of the late Emperor necessarily suspended any effectual application for the redress of some past injuries suffered by our citizens from that Government, while they have been the cause of others, in which all foreigners seem to have participated. Instructions have been given to our minister there to press for indemnity due for losses occasioned by these irregularities, and to take care of our fellow citizens shall enjoy all the privileges stipulated in their favor by the treaty lately made between the two powers, all which the good intelligence that prevails between our minister at Rio Janeiro and the Regency gives us the best reason to expect. I should have placed Buenos Ayres in the list of South American powers in respect to which nothing of importance affecting us was to be communicated but for occurrences which have lately taken place at the Falkland Islands, in which the name of that Republic has been used to cover with a show of authority acts injurious to our commerce and to the property and liberty of our fellow citizens. In the course of the present year one of our vessels, engaged in the pursuit of a trade which we have always enjoyed without molestation, has been captured by a band acting, as they pretend, under the authority of the Government of Buenos Ayres. I have therefore given orders for the dispatch of an armed vessel to join our squadron in those seas and aid in affording all lawful protection to our trade which shall be necessary, and shall without delay send a minister to inquire into the nature of the circumstances and also of the claim, if any, that is set up by that Government to those islands. In the mean time, I submit the case to the consideration of Congress, to the end that they may clothe the Executive with such authority and means as they may deem necessary for providing a force adequate to the complete protection of our fellow citizens fishing and trading in those seas. This rapid sketch of our foreign relations, it is hoped, fellow citizens, may be of some use in so much of your legislation as may bear on that important subject, while it affords to the country at large a source of high gratification in the contemplation of our political and commercial connection with the rest of the world. At peace with all; having subjects of future difference with few, and those susceptible of easy adjustment; extending our commerce gradually on all sides and on none by any but the most liberal and mutually beneficial means, we may, by the blessing of Providence, hope for all that national prosperity which can be derived from an intercourse with foreign nations, guided by those eternal principles of justice and reciprocal good will which are binding as well upon States as the individuals of whom they are composed. I have great satisfaction in making this statement of our affairs, because the course of our national policy enables me to do it without any indiscreet exposure of what in other governments is usually concealed from the people. Having none but a straight-forward, open course to pursue, guided by a single principle that will bear the strongest light, we have happily no political combinations to form, no alliances to entangle us, no complicated interests to consult, and in subjecting all we have done to the consideration of our citizens and to the inspection of the world we give no advantage to other nations and lay ourselves open to no injury. It may not be improper to add that to preserve this state of things and give confidence to the world in the integrity of our designs all our consular and diplomatic agents are strictly enjoined to examine well every cause of complaint preferred by our citizens, and while they urge with proper earnestness those that are well founded, to countenance none that are unreasonable or unjust, and to enjoin on our merchants and navigators the strictest obedience to the laws of the countries to which they resort, and a course of conduct in their dealings that may support the character of our nation and render us respected abroad. Connected with this subject, I must recommend a revisal of our consular laws. Defects and omissions have been discovered in their operation that ought to be remedied and supplied. For your further information on this subject I have directed a report to be made by the Secretary of State, which I shall hereafter submit to your consideration. The internal peace and security of our confederated States is the next principal object of the General Government. Time and experience have proved that the abode of the native Indian within their limits is dangerous to their peace and injurious to himself. In accordance with my recommendation at a former session of Congress, an appropriation of $500K was made to aid the voluntary removal of the various tribes beyond the limits of the States. At the last session I had the happiness to announce that the Chickasaws and Choctaws had accepted the generous offer of the Government and agreed to remove beyond the Mississippi River, by which the whole of the State of Mississippi and the western part of Alabama will be freed from Indian occupancy and opened to a civilized population. The treaties with these tribes are in a course of execution, and their removal, it is hoped, will be completed in the course of 1832. At the request of the authorities of Georgia the registration of Cherokee Indians for emigration has been resumed, and it is confidently expected that half, if not two-third, of that tribe will follow the wise example of their more westerly brethren. Those who prefer remaining at their present homes will hereafter be governed by the laws of Georgia, as all her citizens are, and cease to be the objects of peculiar care on the part of the General Government. During the present year the attention of the Government has been particularly directed to those tribes in the powerful and growing State of Ohio, where considerable tracts of the finest lands were still occupied by the aboriginal proprietors. Treaties, either absolute or conditional, have been made extinguishing the whole Indian title to the reservations in that State, and the time is not distant, it is hoped, when Ohio will be no longer embarrassed with the Indian population. The same measures will be extended to Indiana as soon as there is reason to anticipate success. It is confidently believed that perseverance for a few years in the present policy of the Government will extinguish the Indian title to all lands lying within the States composing our Federal Union, and remove beyond their limits every Indian who is not willing to submit to their laws. Thus will all conflicting claims to jurisdiction between the States and the Indian tribes be put to rest. It is pleasing to reflect that results so beneficial, not only to the States immediately concerned, but to the harmony of the Union, will have been accomplished by measures equally advantageous to the Indians. What the native savages become when surrounded by a dense population and by mixing with the whites may be seen in the miserable remnants of a few Eastern tribes, deprived of political and civil rights, forbidden to make contracts, and subjected to guardians, dragging out a wretched existence, without excitement, without hope, and almost without thought. But the removal of the Indians beyond the limits and jurisdiction of the States does not place them beyond the reach of philanthropic aid and Christian instruction. On the contrary, those whom philanthropy or religion may induce to live among them in their new abode will be more free in the exercise of their benevolent functions than if they had remained within the limits of the States, embarrassed by their internal regulations. Now subject to no control but the superintending agency of the General Government, exercised with the sole view of preserving peace, they may proceed unmolested in the interesting experiment of gradually advancing a community of American Indians from barbarism to the habits and enjoyments of civilized life. Among the happiest effects of the improved relations of our Republic has been an increase of trade, producing a corresponding increase of revenue beyond the most sanguine anticipations of the Treasury Department. The state of the public finances will be fully shown by the Secretary of the Treasury in the report which he will presently lay before you. I will here, however, congratulate you upon their prosperous condition. The revenue received in the present year will not fall short of $27,700,000, and the expenditures for all objects other than the public debt will not exceed $14,700,000. The payment on account of the principal and interest of the debt during the year will exceed $16,500,000, a greater sum than has been applied to that object out of the revenue in any year since the enlargement of the sinking fund except the two years following immediately there after. The amount which will have been applied to the public debt from [1829-03-04] to [1832-01-01], which is less than three years since the Administration has been placed in my hands, will exceed $40,000,000. From the large importations of the present year it may be safely estimated that the revenue which will be received into the Treasury from that source during the next year, with the aid of that received from the public lands, will considerably exceed the amount of the receipts of the present year; and it is believed that with the means which the Government will have at its disposal from various sources, which will be fully stated by the proper Department, the whole of the public debt may be extinguished, either by redemption or purchase, within the four years of my Administration. We shall then exhibit the rare example of a great nation, abounding in all the means of happiness and security, altogether free from debt. The confidence with which the extinguishment of the public debt may be anticipated presents an opportunity for carrying into effect more fully the policy in relation to import duties which has been recommended in my former messages. A modification of the tariff which shall produce a reduction of our revenue to the wants of the Government and an adjustment of the duties on imports with a view to equal justice in relation to all our national interests and to the counteraction of foreign policy so far as it may be injurious to those interests, is deemed to be one of the principal objects which demand the consideration of the present Congress. Justice to the interests of the merchant as well as the manufacturer requires that material reductions in the import duties be prospective; and unless the present Congress shall dispose of the subject the proposed reductions can not properly be made to take effect at the period when the necessity for the revenue arising from present rates shall cease. It is therefore desirable that arrangements be adopted at your present session to relieve the people from unnecessary taxation after the extinguishment of the public debt. In the exercise of that spirit of concession and conciliation which has distinguished the friends of our Union in all great emergencies, it is believed that this object may be effected without injury to any national interest. In my annual message of [1829-12], I had the honor to recommend the adoption of a more liberal policy than that which then prevailed toward unfortunate debtors to the Government, and I deem it my duty again to invite your attention to this subject. Actuated by similar views, Congress at their last session passed an act for the relief of certain insolvent debtors of the United States, but the provisions of that law have not been deemed such as were adequate to that relief to this unfortunate class of our fellow citizens which may be safely extended to them. The points in which the law appears to be defective will be particularly communicated by the Secretary of the Treasury, and I take pleasure in recommending such an extension of its provisions as will unfetter the enterprise of a valuable portion of our citizens and restore to them the means of usefulness to themselves and the community. While deliberating on this subject I would also recommend to your consideration the propriety of so modifying the laws for enforcing the payment of debts due either to the public or to individuals suing in the courts of the United States as to restrict the imprisonment of the person to cases of fraudulent concealment of property. The personal liberty of the citizen seems too sacred to be held, as in many cases it now is, at the will of a creditor to whom he is willing to surrender all the means he has of discharging his debt. The reports from the Secretaries of the War and Navy Departments and from the Postmaster General, which accompany this message, present satisfactory views of the operations of the Departments respectively under their charge, and suggest improvements which are worthy of and to which I invite the serious attention of Congress. Certain defects and omissions having been discovered in the operation of the laws respecting patents, they are pointed out in the accompanying report from the Secretary of State. I have heretofore recommended amendments of the Federal Constitution giving the election of President and Vice-President to the people and limiting the service of the former to a single term. So important do I consider these changes in our fundamental law that I can not, in accordance with my sense of duty, omit to press them upon the consideration of a new Congress. For my views more at large, as well in relation to these points as to the disqualification of members of Congress to receive an office from a President in whose election they have had an official agency, which I proposed as a substitute, I refer you to my former messages. Our system of public accounts is extremely complicated, and it is believed may be much improved. Much of the present machinery and a considerable portion of the expenditure of public money may be dispensed with, while greater facilities can be afforded to the liquidation of claims upon the Government and an examination into their justice and legality quite as efficient as the present secured. With a view to a general reform in the system, I recommend the subject to the attention of Congress. I deem it my duty again to call your attention to the condition of the District of Columbia. It was doubtless wise in the framers of our Constitution to place the people of this District under the jurisdiction of the General Government, but to accomplish the objects they had in view it is not necessary that this people should be deprived of all the privileges of self-government. Independently of the difficulty of inducing the representatives of distant States to turn their attention to projects of laws which are not of the highest interest to their constituents, they are not individually, nor in Congress collectively, well qualified to legislate over the local concerns of this District. Consequently its interests are much neglected, and the people are almost afraid to present their grievances, lest a body in which they are not represented and which feels little sympathy in their local relations should in its attempt to make laws for them do more harm than good. Governed by the laws of the States whence they were severed, the two shores of the Potomac within the 10 miles square have different penal codes—not the present codes of Virginia and Maryland, but such as existed in those States at the time of the cession to the United States. As Congress will not form a new code, and as the people of the District can not make one for themselves, they are virtually under two governments. Is it not just to allow them at least a Delegate in Congress, if not a local legislature, to make laws for the District, subject to the approval or rejection of Congress? I earnestly recommend the extension to them of every political right which their interests require and which may be compatible with the Constitution. The extension of the judiciary system of the United States is deemed to be one of the duties of the Government. One-fourth of the States in the Union do not participate in the benefits of a circuit court. To the States of Indiana, Illinois, Missouri, Alabama, Mississippi, and Louisiana, admitted into the Union since the present judicial system was organized, only a district court has been allowed. If this be sufficient, then the circuit courts already existing in 18 States ought to be abolished; if it be not sufficient, the defect ought to be remedied, and these States placed on the same footing with the other members of the Union. It was on this condition and on this footing that they entered the Union, and they may demand circuit courts as a matter not of concession, but of right. I trust that Congress will not adjourn leaving this anomaly in our system. Entertaining the opinions heretofore expressed in relation to the Bank of the United States as at present organized, I felt it my duty in my former messages frankly to disclose them, in order that the attention of the Legislature and the people should be seasonably directed to that important subject, and that it might be considered and finally disposed of in a manner best calculated to promote the ends of the Constitution and subserve the public interests. Having thus conscientiously discharged a constitutional duty, I deem it proper on this occasion, without a more particular reference to the views of the subject then expressed to leave it for the present to the investigation of an enlightened people and their representatives. In conclusion permit me to invoke that Power which superintends all governments to infuse into your deliberations at this important crisis of our history a spirit of mutual forbearance and conciliation. In that spirit was our Union formed, and in that spirit must it be preserved.

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Rives’s Treaty (1831)

Posted by creyes24 on December 29, 2009

CONVENTION WITH FRANCE

The United States of America and His Majesty the King of the French, animated with an equal desire to adjust amicably, and in a manner conformable to equity, as well as to the relations of good intelligence and sincere friendship which unite the two countries, the reclamations formed by the respective Governments, have, for this purpose, named for their plenipotentiaries, to wit, the President of the United States, by and with the advice and consent of the Senate, William C. Rives, Envoy Extraordinary and Minister Plenipotentiary of the said United States, near His Majesty the King of the French, and His Majesty the King of the French, Count Horace Sebastiani, Lieutenant General of his Armies, his Minister Secretary of State for the Department of Foreign Affairs, &c. &c., who, after having exchanged their full powers, found in good and due form, have agreed upon the following articles:

Article I.

The French Government, in order to liberate itself completely from all the reclamations preferred against it by citizens of the United States, for unlawful seizures, captures, sequestrations, confiscations, or destructions of their vessels, cargoes, or other property, engages to pay a sum of twenty-five millions of francs to the Government of the United States, who shall distribute it among those entitled, in the manner and according to the rules which it shall determine.

Article II.

The sum of twenty-five millions of francs, above stipulated, shall be paid at Paris, in six annual instalments, of four millions one hundred and sixty-six thousand six hundred and sixty-six francs sixty-six centimes each, into the hands of such person or persons as shall be authorised by the Government of the United States to receive it.

The first installment shall be paid at the expiration of one year next following the exchange of the ratifications of this convention, and the others at successive intervals of a year, one after another, till the whole shall be paid.

To the amount of each of the said instalments shall be added interest at four per cent. thereupon, as upon the other instalments then remaining unpaid; the said interest to be computed from the day of the exchange of the ratifications of the present convention.

Article III.

The Government of the United States, on its part, for the purpose of being liberated completely from all the reclamations presented by France on behalf of its citizens, or of the Royal Treasury, (either for ancient supplies or accounts, the liquidation of which had been reserved, or for unlawful seizures, captures, detentions, arrests, or destructions of French vessels, cargoes, or other property,) engages to pay to the Government of His Majesty (which shall make distribution of the same in the manner and according to the rules to be determined by it) the sum of one million five hundred thousand francs.

Article IV.

The sum of one million five hundred thousand francs, stipulated in the preceding article, shall be payable in six annual instalments, of two hundred and fifty thousand francs; and the payment of each of the said instalments shall be effected by a reservation of so much out of the annual sums which the French Government is bound, by the second article above, to pay to the Government of the United States.

To the amount of each of these instalments shall be added interest at four per cent. upon the instalment then paid, as well as upon those still due; which payments of interest shall be effected by means of a reservation, similar to that already indicated for the payment of the principal. The said interest shall be computed from the day of the exchange of the ratifications of the present convention.

Article V.

As to the reclamations of French citizens against the Government of the United States, and the reclamations of citizens of the United States against the French Government, which are of a different nature from those which it is the object of the present convention to adjust, it is understood that the citizens of the two nations may prosecute them in the respective countries before the competent judicial or administrative authorities, in complying with the laws and regulations of the country, the dispositions and benefit of which, shall be applied to them, in like manner as to native citizens.

Article VI.

The French Government and the Government of the United States reciprocally engage to communicate to each other, by the intermediary of the respective legations, the documents, titles, or other informations proper to facilitate the examination and liquidation of the reclamations comprised in the stipulations of the present convention.

Article VII.

The wines of France, from and after the exchange of the ratifications of the present convention, shall be admitted to consumption in the States of the Union at duties which shall not exceed the following rates, by the gallon, (such as it is used at present for wines in the United States,) to wit, six cents for red wines in casks; ten cents for white wines in casks; and twenty-two cents for wines of all sorts in bottles. The proportion existing between the duties on French wines thus reduced, and the general rates of the tariff which went into operation the first of January, 1829, shall be maintained, in case the Government of the United States should think proper to diminish those general rates in a new tariff.

In consideration of this stipulation, which shall be binding on the United States for ten years, the French Government abandons the reclamations which it had formed in relation to the 8th article of the treaty of cession of Louisiana. It engages, moreover, to establish on the long staple cottons of the United States, which, after the exchange of the ratifications of the present convention, shall be brought directly thence to French by the vessels of the United States, or by French vessels, the same duties as on short staple cottons.

Article VIII.

The present convention shall be ratified, and the ratifications shall be exchanged at Washington, in the space of eight months, or sooner, if possible.

In faith of which, the respective plenipotentiaries have signed these articles, and thereto set their seals.

Done at Paris, the fourth day of the month of July, one thousand eight hundred and thirty-one.

W.C. Rives, (l. s.)

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The court case of the Cherokee Nation V. State of Georgia (Jan. 1831)

Posted by creyes24 on December 29, 2009

CHEROKEE NATION V. STATE OF GEORGIA.

Johnson, Justice.–In pursuance of my practice, in giving an opinion on all constitutional questions, I must present my views on this. With the morality of the case, I have no concern; I am called upon to consider it as a legal question.

The object of this bill is to claim the interposition of this court, as the means of preventing the state of Georgia, or the public functionaries of the state of Georgia, from asserting certain rights and powers over the country and people of the Cherokee nation. It is not enough, in order to come before this court for relief, that a case of injury, or of cause to apprehend injury, should be made out. Besides having a cause of action, the complainant must bring himself within that description of parties, who alone are permitted, under the constitution, to bring an original suit to this court. It is essential to such suit, that a state of this Union should be a party; so says the second member of the second section of the third article of the constitution; the other party must, under the control of the eleventh amendment, be another state of the Union, or a foreign state. In this case, the averment is, that the complainant is a foreign state.

Two preliminary questions then present themselves: 1. Is the complainant a foreign state, in the sense of the constitution? 2. Is the case presented in the bill one of the judicial cognisance? Until these questions are disposed of, we have no right to look into the nature of the controversy any further than is necessary to determine them. The first of the questions necessarily resolves itself into two: 1. Are the Cherokees a state? 2. Are they a foreign state?

1. I cannot but think that there are strong reasons for doubting the applicability of the epithet “state,” to a people so low in the grade of organized society as our Indian tribes most generally are. I would not here be understood as speaking of the Cherokees, under their present form of government; which certainly must be classed among the most approved forms of civil government. Whether it can be yet said to have received the consistency which entitles that people to admission into the family of nations is, I conceive, yet to be determined by the executive of these states. Until then, I must think, that we cannot recognise it as an existing state, under any other character than that which it has maintained hitherto as one of the Indian tribes or nations.

There are great difficulties hanging over the question, whether they can be considered as states, under the judiciary article of the constitution. 1. They never have been recognised as holding sovereignty over the territory they occupy. It is in vain now to inquire into the sufficiency of the principle, that discovery gave the right of dominion over the country discovered. When the populous and civilized nations beyond the Cape of Good Hope were visited, the right of discovery was made the ground of an exclusive right to their trade, and confined to that limit. When the eastern coast of this continent, and especially the part we inhabit, was discovered, finding it occupied by a race of hunters, connected in society by scarcely a semblance of organic government, the right was extended to the absolute appropriation of the territory, the annexation of it to the domain of the discoverer. It cannot be questioned, that the right of sovereignty, as well as soil, was notoriously asserted and exercised by the European discoverers. From that source we derive our rights, and there is not an instance of a cession of land from an Indian nation, in which the right of sovereignty is mentioned as a part of the matter ceded.

It may be suggested, that they were uniformly cessions of land, without inhabitants; and therefore, words competent to make a cession of sovereignty were unnecessary. This, however, is not a full answer, since soil, as well as people, is the object of sovereign action, and may be ceded, with or without the sovereignty, or may be ceded, with the express stipulation that the inhabitants shall remove. In all the cessions to us from the civilized states of the old world, and of our transfers among ourselves, although of the same property, under the same circumstances, and even when occupied by these very Indians, the express cession of sovereignty is to be found. In the very treaty of Hopewell, the language or evidence of which is appealed to, as the leading proof of the existence of this supposed state, we find the commissioners of the United States expressing themselves in these terms. “The commissioners plenipotentiary of the United States give peace to all the Cherokees, and receive them into the favor and protection of the United States on the following conditions.” This is certainly the language of sovereigns and conquerors, and not the address of equals to equals. And again, when designating the country they are to be confined to, comprising the very territory which is the subject of this bill, they say, “Art. 4. The boundary allotted to the Cherokees for their hunting-grounds” shall be as therein described. Certainly, this is the language of concession on our part, not theirs; and when the full bearing and effect of those words, “for their hunting-grounds,” is considered, it is difficult to think, that they were then regarded as a state, or even intended to be so regarded. It is clear, that it was intended to give them no other rights over the territory than what were needed by a race of hunters; and it is not easy to see, how their advancement beyond that state of society could ever have been promoted, or, perhaps, permitted, consistently with the unquestioned rights of the states, or United States, over the territory within their limits. The pre-emptive right, and exclusive right of conquest in case of war, was never questioned to exist in the states, which circumscribed the whole or any part of the Indian grounds or territory. To have taken it from them by direct means, would have been a palpable violation of their rights. But every advance, from the hunter-restate to a more fixed state of society, must have a tendency to impair that pre-emptive right, and ultimately to destroy it altogether, both by increasing the Indian population, and by attaching them firmly to the soil. The hunter-state bore within itself the promise of vacating the territory, because when game ceased, the hunter would go elsewhere to seek it. But a more fixed state of society would amount to a permanent destruction of the hope, and, of consequence, of the beneficial character of the pre-emptive right.

But it is said, that we have extended to them the means and inducement to become agricultural and civilized. It is true: and the immediate object of that policy was so obvious, as probably to have interpreted the view of ulterior consequences. Independently of the general influence of humanity, these people were restless, warlike, and signally cruel in their irruptions, during the revolution. The policy, therefore, of enticing them to the arts of peace, and to those improvements which war might lay desolate, was obvious; and it was wise, to prepare them for what was probably then contemplated, to wit, to incorporate them in time into our respective governments; a policy which their inveterate habits and deep- seated enmity has altogether baffled. But the project of ultimately organizing them into states, within the limits of those states which had not ceded or should not cede to the United States the jurisdiction over the Indian territory within their bounds, could not possibly have entered into the contemplation of our government. Nothing but express authority from the states could have justified such a policy, pursued with such a view.

To pursue this subject a little more categorically. If these Indians are to be called a state: then–1. By whom are they acknowledged as such? 2. When did they become so? 3. And what are the attributes by which they are identified with other states?

As to the first question, it is clear, that as a state they are known to nobody on earth but ourselves, if to us: how then can they be said to be recognized as a member of the community of nations? Would any nation on earth treat with them as such? Suppose, when they occupied the banks of the Mississippi, or the sea coast of Florida, part of which, in fact, the Seminoles now occupy, they had declared war and issued letters of marque and reprisal against us, or Great Britain, would their commissions be respected? If known as a state, it is by us, and us alone; and what are the proofs? The treaty of Hopewell does not even give them a name other than that of the Indians; not even nation or state: but regards them as what they were, a band of hunters, occupying as hunting-grounds, just what territory we chose to allot them. And almost every attribute of sovereignty is renounced by them, in that very treaty. They acknowledge themselves to be under the sole and exclusive protection of the United States. They receive the territory allotted to them as a boon, from a master or conqueror; the right of punishing intruders into that territory is conceded, not asserted as a right; and the sole and exclusive right of regulating their trade and managing all their affairs in such manner as the government of the United States shall think proper; amounting in terms to a relinquishment of all power, legislative, executive and judicial, to the United States, is yielded in the ninth article. It is true, that the twelfth article gives power to the Indians to send a deputy to congress; but such deputy, though dignified by the name, was nothing and could be nothing but an agent, such as any other company might be represented by. It cannot be supposed, that he was to be recognised as a minister, or to sit in the congress as a delegate. There is nothing express and nothing implied, that would clothe him with the attributes of either of these characters. As to a seat among the delegates, it could not be granted to him.

There is one consequences that would necessarily flow from the recognition of this people as a state, which of itself must operate greatly against its admission. Where is the rule to stop? Must every petty kraal of Indians, designating themselves a tribe or nation, and having a few hundred acres of land to hunt on exclusively, be recognised as a state? We should, indeed, force into the family of nations, a very numerous and very heterogeneous progeny. The Catawbas, having, indeed, a few more acres than the republic of San Marino, but consisting only of eighty or an hundred polls, would then be admitted to the same dignity. They still claim independence, and actually execute their own penal laws, such as they are, even to the punishment of death; and have recently done so. We have many ancient treaties with them; and no nation has been more distinctly recognised, as far as such recognition can operate to communicate the character of a state.

But secondly, at what time did this people acquire the character of a state? Certainly, not by the treaty of Hopewell; for every provision of that treaty operates to strip it of its sovereign attributes; and nothing subsequent adds anything to that treaty, except using the word nation instead of Indians. And as to that article in the treaty of Holston, and repeated in the treaty of Tellico, which guaranties to them their territory, since both those treaties refer to and confirm the treaty of Hopewell; on what principle can it be contended, that the guarantee can go further than to secure to them that right over the territory, which is conceded by the Hopewell treaty; which interest is only that of hunting-grounds. The general policy of the United States, which always looked to these Indian lands as a certain future acquisition, not less than the express words of the treaty of Hopewell, must so decide the question.

If they were not regarded as one of the family of nations, at the time of that treaty, even though, at that time, first subdued and stripped of the attributes of a state, it is clear, that, to be regarded now as a state, they must have resumed their rank among nations, at some subsequent period. But at what subsequent period? Certainly, by no decisive act, until they organized themselves recently into a government; and I have before remarked, that, until expressly recognised by the executive, under that form of government, we cannot recognise any change in their form of existence. Others have a right to be consulted on the admission of new states into the national family. When this country was first appropriated or conquered by the crown of Great Britain, they certainly were not known as members of the community of nations; and if they had been, Great Britain, from that time, blotted them from among the race of sovereigns. From that time, Great Britain considered them as her subjects, whenever she chose to claim their allegiance; and their country as hers, both in soil and sovereignty. All the forbearance exercised towards them was considered as voluntary, and as their trade was more valuable to her than their territory, for the reason, and not from any supposed want of right to extend her laws over them, did she abstain from doing so.

And thirdly, by what attributes is the Cherokee nation identified with other states? The right of sovereignty was expressly assumed by Great Britain over their country, as the first taking possession of it; and has never since been recognized as in the, otherwise than as dependent upon the will of a superior. The right of legislation is, in terms, conceded to congress, by the treaty of Hopewell, whenever they choose to exercise it. And the right of soil is held by the feeble tenure of hunting-grounds, and acknowledged on all hands and subject to a restriction to sell to no one but the United States, and for no use but that of Georgia. They have, in Europe, sovereign and demi-sovereign states, and states of doubtful sovereignty. But this state, if it be a state, is still a grade below them all; for not to be able to alienate, without permission of the remainder-man or lord, places them in a state of feudal dependence.

However, I will enlarge no more upon this point; because I believe, in one view, and in one only, if at all, they are or may be deemed a state, though not a sovereign state, at least, while they occupy a country within our limits. Their condition is something like that of the Israelites, when inhabiting the deserts. Though without land that they can call theirs in the sense of property, their right of personal self- government has never been taken from them; and such a form of government may exist, though the land occupied be in fact that of another. The right to expel them may exist in that other, but the alternative of departing, and retaining the right of self-government, may exist in them. And such they certainly do possess; it has never been questioned, nor any attempt made of subjugating them as a people, or restraining their personal liberty, except as to their land and trade.

But in no sense can they deemed a foreign state, under the judiciary article. It does seem unnecessary, on this point, to do more than put the question, whether the makers of the constitution could have intended to designate them, when using the epithets “foreign” and “state.” State, and foreign state, are used in contradistinction to each other. We had then just emerged ourselves from a situation having much stronger claims than the Indians for admission into the family of nations; and yet we were not admitted, until we had declared ourselves no longer provinces, but states, and showed some earnestness and capacity in asserting our claim to be enfranchised. Can it then be supposed, that when using those terms, we meant to include any others than those who were admitted into the community of nations, of whom, most notoriously, the Indians were no part?

The argument is, that they were states; and if not states of the Union, must be foreign states. But I think it very clear, that the constitution neither speaks of them as states or foreign states, but as just as what they were, Indian tribes; an anomaly unknown to the books that treat of states, and which the law of nations would regard as nothing more than wandering hordes, held together only by ties of blood and habit, and having neither laws nor government, beyond what is required in a savage state. The distinction is clearly made in that section which vests in congress power to regulate commerce between the United States with foreign nations, and the Indian tribes.

The language must be applied in one of three senses; either in that of the law of nations, or of the vernacular use, or that of the constitution. In the first, although it means any state not subject to our laws, yet it must be a state and not a hunter horde; in the vernacular, it would be not be applied to a people within our limits and at our very doors; and in the constitution, the two epithets and used in direct contradistinction; the latter words were unnecessary, if the first included the Indian tribes. There is no ambiguity, though taken literally; and if they were, facts and circumstances altogether remove it.

But had I been sitting alone in this cause, I should have waived the consideration of personal description altogether; and put my rejection of this motion upon the nature of the claim set up, exclusively. I cannot entertain a doubt, that it is one of a political character altogether, and wholly unfit for the cognisance of a judicial tribunal. There is no possible view of the subject, that I can perceive, in which a court of justice can take jurisdiction of the questions made in the bill. The substance of its allegations may be thus set out. That the complainants have been, from time immemorial, lords of the soil they occupy. That the limits by which they hold it have been solemnly designated and secured to them by treaty, and by laws of the United States. That within those limits, they have rightfully exercised unlimited jurisdiction, passing their own laws and administering justice in their own way. That in violation of their just rights, so secured to them, the state of Georgia has passed laws, authorizing and requiring the executive and judicial powers of the state to enter their territory and put down their public functionaries. That in pursuance of those laws the functionaries of Georgia have entered their territory with an armed force, and put down all powers legislative, executive and judicial, exercised under the government of the Indians.

What does this series of allegations exhibit, but a state of war, and the fact of invasion? They allege themselves to be a sovereign independent state, and set out that another sovereign state has, by its laws, its functionaries, and its armed force, invaded their state and put down their authority. This is war, in fact; through not being declared with the usual solemnities, it may perhaps be called war in disguise. And the contest is distinctly a contest for empire. It is not a case of meum and tuum, in the judicial, but in the political sense. Not an appeal to laws, but to force. A case in which a sovereign undertakes to assert his right upon his sovereign responsibility; to right himself, and not to appeal to any arbiter but the sword, for the justice of his cause. If the state of Maine were to extend its laws over the province of New Brunswick, and send its magistrates to carry them into effect, it would be a parallel case. In the Nabob of Arcot’s Case (3 Bro. C. C. 292; s. c. 1 Ves. jr. 371; 2 Ibid. 56), a case of a political character not one half so strongly marked as this, the courts of Great Britain refused to take jurisdiction, because it had its origin in treaties entered into between sovereign states: a case in which the appeal is to the sword and to Almighty justice, and not to courts of law or equity. In the exercise of sovereign right, the sovereign is sole arbiter of his own justice. The penalty of wrong is war and subjugation.

But there is still another ground, in this case, which alone would have prevented me from assuming jurisdiction; and that is, the utter impossibility of doing justice, at least, even-handed justice, between the parties. As to restoring the complainant to the exercise of jurisdiction, it will be seen at once, that this is no case for the action of a court; and as to quieting him in possession of the soil, what is the case on which the complainant would have this court to act? Either Cherokee nation are a foreign state, or they are not. If are not, then they cannot come here; and if they are, then how can we extend our jurisdiction into their country?

We are told, that we can act upon the public functionaries in the state of Georgia, without the limits of the nations. But suppose, that Georgia should file a cross-bill, as she certainly may, if we can entertain jurisdiction in this case; and should, in her bill, claim to be put in possession of the whole Indian country; and we should decide in her favor; how is that decree to be carried into effect? Say, as to soil; as to jurisdiction, it is not even to be considered. From the complainant’s own showing, we could not do justice between the parties. Nor must I be considered as admitting that this court could, even upon the other alternative, exercise a jurisdiction over the person, respecting lands under the jurisdiction of a foreign nation. I know of no such instance. In Penn v. Lord Baltimore, the persons were in England, and the land within the king’s dominions, though in America.

There is still another view in which this cause of action may be considered in regard to its political nature. The United States, finding themselves involved in conflicting treaties, or, at least, in two treaties respecting the same property, under which two parties assert conflicting claims; one of the parties, putting itself upon its sovereign right, passes laws which in effect declare the laws and treaties under which the other party claims, null and void. It proceeds to carry into effect those laws, by means of physical force; and the other party appeals to the executive department for protection. Being disappointed there, the party appeals to this court, indirectly to compel the executive to pursue a course of policy, which his sense of duty, or ideas of the law, may indicate should not be pursued. That is, to declare war against a state, or to use the public force to repel the force, and resist the laws of a state, when his judgment tells him the evils to grow out of such a course may be incalculable. What these people may have a right to claim of the executive power is one thing; whether we are to be the instruments to compel another branch of the government to make good the stipulations of treaties, is a very different question. Courts of justice are properly excluded from all considerations of policy, and therefore, are very unfit instruments to control the action of that branch of government, which may often be compelled, by the highest considerations of public policy, to withhold even the exercise of a positive duty.

There is then a great deal of good sense in the rule laid down in the Nabob of Arcot’s Case, to wit, that as between sovereigns, breaches of treaty were not breaches of contract cognisable in a court of justice; independent of the general principle, that for their political acts, states were not amenable to tribunals of justice.

There is yet another view of this subject, which forbids our taking jurisdiction. There is a law of the United States, which purports to make every trespass set out in the bill to be an offence cognisable in the courts of the United States. I mean the act of 1802, which makes it penal to violate the Indian territory. The infraction of this law is in effect the burden of complaint. What then, in fact, is this bill, but a bill to obtain an injunction against the commission of crimes? If their territory has been trespassed upon, against the provisions of that act, no law of Georgia could repeal that act, or justify the violation of its provisions. And the remedy lies in another court and form of action, or another branch of jurisprudence.

I cannot take leave of the case, without one remark upon the leading argument, on which the exercise of jurisdiction here over cases occurring in the Indian country, has been claimed for the complaint; which was, that the United States, in fact, exercised jurisdiction over it, by means of this and other acts, to punish offences committed there. But this argument cannot bear the test of principle. For the jurisdiction of a country may be exercised over her citizens, wherever they are, in right of their allegiance; as it has been in the instance of punishing offences committed against the Indians. And also, both under the constitution and the treaty of Hopewell, the power of congress extends to regulating their trade, necessarily within their limits. But this cannot sanction the exercise of jurisdiction, beyond the policy of the acts themselves, which are altogether penal in their provisions. I vote rejecting the motion.

Baldwin, Justice.–As jurisdiction is the first question which must arise in every cause, I have confined my examination of this, entirely to that point, and that branch of it which relates to the capacity of the plaintiffs to ask the interposition of this court. I concur in the opinion of the court, in dismissing the bill, but not for the reasons assigned. In my opinion, there is no plaintiff in this suit; and this opinion precludes any examination into the merits of the bill, or the weight of any minor objections. My judgment stops me at the threshold, and forbids me to examine into the acts complained of.

As the reasons for the judgment of the court seem to me more important than the judgment itself, in its effects on the peace of the country, and the condition of the complainants, and as I stand alone on one question of vital concern to both; I must give my reasons in full. The opinion of this court is of high authority in itself; and the judge who delivers it has a support as strong in moral influence over public opinion, as any human tribunal can impart. The judge, who stands alone in decided dissent on matters of the infinite magnitude which this case presents, must sink under the continued and unequal struggle; unless he can fix himself by a firm hold on the constitution and laws of the country. He must be presumed to be in the wrong, until he proves himself to be in the right. Not shrinking even from this fearful issue, I proceed to consider the only question which I shall ever examine in relation to the rights of Indians to sue in the federal courts, until convinced of my error in my present convictions.

My view of the plaintiffs being a sovereign independent nation or foreign state, within the meaning of the constitution, applies to all the tribes with whom the United States have held treaties; for if one is a foreign nation or state, all others, in like conditions, must be so, in their aggregate capacity; and each of their subjects or citizens, aliens, capable of suing in the circuit courts. This case, then, is the case of the countless tribes, who occupy tracts of our vast domain; who, in their collective and individual characters, as states or aliens, will rush to the federal courts in endless controversies, growing out of the laws of the states of congress.

In the spirit of the maxim obsta principiis, I shall first proceed to the consideration of the proceedings of the old congress, from the commencement of the revolution up to the adoption of the constitution; so as to ascertain whether the Indians were considered and treated with, as tribes of savages, or independent nations, foreign states, on an equality with any other foreign state or nation; and whether Indian affairs were viewed as those of foreign nations, and in connection with this view, refer to the acts of the federal government on the same subject.

In 1781 (1 Laws U.S. 586), a department for foreign affairs was established, to which was intrusted all correspondence and communication with the ministers or other officers of foreign powers, to be carried on through that office; also with the governors and presidents of the several states; and to receive the applications of all foreigners, letters of sovereign powers, plans of treaties, conventions, &c., and other acts of congress relative to the department of foreign affairs; and all communications, as well to as from the United States in congress assembled, were to be made through the secretary, and all papers on the subject of foreign affairs to be addressed to him. The same department was established under the present constitution in 1789, and with the same exclusive control over all the foreign concerns of this government with foreign states or princes. (2 Laws U.S. 6, 7.) In July 1775, congress established a department of Indians affairs, to be conducted under the superintendence of commissioners. (1 Ibid, 597.) By the ordinance of August 1786, for the regulation of Indian affairs, they were placed under the control of the war department (Ibid. 614); continued there by the act of August 1789 (2 Ibid. 32, 33), under whose direction they have ever since remained. It is clear, then, that neither the old nor new government did ever consider Indian affairs, the regulation of our intercourse or treaties with them, as forming any part of our foreign affairs or concerns with foreign nations, states or princes.

I will next inquire, how the Indians were considered; whether as independent nations, or tribes with whom our intercourse must be regulated by the law of circumstances. In this examination, it will be found, that different words have been applied to them in treaties and resolutions of congress; nations, tribes, hordes, savages, chiefs, sachems and warriors of the Cherokees, for instance, or the Cherokee nation. I shall not stop to inquire into the effect which a name or title can give to a resolve of congress, a treaty or convention with the Indians, but into the substance of the thing done, and the subject-matter acted on; believing it requires no reasoning to prove, that the omission of the words prince, state, sovereignty or nation, cannot divest a contracting party of these national attributed, which are inherent in sovereign power pre-and self-existing, or confer them, by their use, where all the substantial requisites of sovereignty are wanting.

The proceedings of the old congress will be found in 1 Laws U.S. 597, commencing 1st June 1775, and ending 1st September 1788, of which some extracts will be given. 30th June 1775: “Resolved, that the committee for Indian affairs do prepare proper talks to the several tribes of Indians; as the Indians depend on the colonists for arms, ammunition and clothing, which are become necessary for their substance.” “That the commissioners have power to treat with the Indians;” “to take to their assistance gentlemen of influence among the Indians.” “To preserve the confidence and friendship of the Indians, and prevent their suffering for want of the necessaries of life, 40,000 l. sterling of Indian goods be imported.” “No person shall be permitted to trade with the Indians, without a license;” “traders shall sell their goods at reasonable prices; allow them to the Indians for their skins, and take no advantage of their distress and intemperance;” “the trade to be at posts designated by the commissioners.” Specimens of the kind of intercourse between the congress and deputations of Indians may be seen in pages 602 and 603. They need no incorporation into a judicial opinion.

In 1782, a committee of congress report, that all the lands belonging to the Six Nations of Indians have been in due form put under the crown, as appendant to the government of New York, so far as respects jurisdictions only; that that colony has borne the burden of protecting and supporting the Six Nations of Indians, and their tributaries, for one hundred years, as the dependants and allies of that government; that the crown of England has always considered and treated the country of the Six Nations as one appendant to the government of New York; that they have been so recognised and admitted, by their public acts, by Massachusetts, Connecticut, Pennsylvania, Maryland and Virginia; that by accepting this cession, the jurisdiction of the whole western territory, belonging to the Six Nations and their tributaries, will be vested in the United States, greatly to the advantage of the Union (p. 606). The cession alluded to is the one from New York, March 1st, 1781, of the soil and jurisdiction of all the land in their charter, west of the present boundary of Pennsylvania (1 Laws of U.S. 471), which was executed in congress and accepted.

This makes it necessary to break in on the historical trace of our Indian affairs, and follow up this subject to the adoption of the constitution. The cession from Virginia in 1784 was of soil and jurisdiction. So, from Massachusetts in 1785, from Connecticut in 1880, from South Carolina in 1787, from Georgia in 1802. North Carolina made a partial cession of land, but a full one of her sovereignty and jurisdiction of all without her present limits in 1789. (2 Laws U.S. 85.) Some states made reservations of lands to a small amount, but, by the terms of the cession, new states were to be formed within the ceded boundaries, to be admitted into the Union on an equal footing with the original states; of course, not shorn of their powers of sovereignty and jurisdiction, within the boundaries assigned by congress to the new states. In this spirit, congress passed the celebrated ordinance of July 1787, by which they assumed the government of the north-western territory, paying no regard to Indian jurisdiction, sovereignty, or their political rights, except providing for their protection; authorizing the adoption of laws “which, for the prevention of crimes and injuries, shall have force in all parts of the district; and for the execution of process, civil and criminal, the governor has power to make proper division thereof.” (1 Laws U.S. 477.) By the fourth article, the said territory, and the states which may be formed therein, shall for ever remain a part of this confederacy of the United States; subject to the articles of confederation, alterations constitutionally made, the acts and ordinances of congress. This shows the clear meaning and understanding of all the ceding states, and of congress, in accepting the cession of their western lands, up to the time of the adoption of the constitution. The application of these acts to the provisions of the constitution will be considered hereafter. A few more references to the proceedings of the old congress, in relation to the Indian nations, will close this view of the case.

In 1782, a committee, to whom was referred a letter from the secretary at war, reported, “that they have had a conference with the two deputies from the Catawba nation of Indians; that their mission respects certain tracts of land reserved for their use, in the state of South Carolina, which they wish may be so secured to their tribe, as not to be intruded into by force, nor alienated even with their own consent:–Whereupon, resolved, that it be recommended to the legislature of South Carolina to take such measures for the satisfaction and security of the said tribe, as the said legislature shall in their wisdom think fit.” (1 Laws U.S. 667.) After this, the Catawbas cannot well be considered an independent nation or foreign state. In September 1783, shortly after the preliminary treaty of peace, congress, exercising the powers of acknowledged independence and sovereignty, issued a proclamation, beginning in these words: “whereas, by the ninth of the articles of confederation, it is, among other things, declared, that the United States in congress assembled, 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 every state, within its own limits be not infringed or violated;” prohibiting settlements on lands inhabited or claimed by Indians, without the limits or jurisdiction of any particular state, and from purchasing or receiving gifts of land, without the express authority and directions of the United States in congress assembled. Conventions were to be held with the Indians in the northern and middle departments, for the purpose of receiving them into the favor and protection of the United States, and of establishing boundary lines of property, for separating and dividing the settlements of the citizens from the Indian villages and hunting-grounds, &c. “Resolved, that the preceding measures of congress, relative to Indian affairs, shall not be construed to affect the territorial claims of any of the states, or their legislative rights, within their respective limits. Resolved, that it will be wise and necessary, to erect a district of the western territory into a distinct government, and that a committee be appointed to prepare a plan for a temporary government, until the inhabitants shall form a permanent constitution for themselves, and as citizens of a free, sovereign and independent state, be admitted to a representation in the Union.” In 1786, a general ordinance was passed for the regulation of Indian affairs under the authority of the ninth article of the confederation, which throws much light on our relations with them (page 614). It closes with a direction, that in all cases where transactions with any nation or tribe of Indians shall become necessary for the purposes of the ordinance, which cannot be done without interfering with the legislative rights of a state, the superintendent within whose district the same shall happen, shall act in conjunction with the authority of such state. After accepting the cessions of the soil and jurisdiction of the western territory, and resolving to form a temporary government, and create new, free, sovereign and independent states, congress resolved, in March 1785, to hold a treaty with the western Indians. They gave instructions to the commissioners, in strict conformity with their preceding resolutions, both of which were wholly incompatible with the national or sovereign character of the Indians with whom they were about to treat. They will be found in pages 611, &c., and need not be particularized.

I now proceed to the instructions which preceded the treaty of Hopewell with the complainants, the treaty, and the consequent proceedings of congress. On the 15th March 1785, commissioners were appointed to treat with the Cherokees and other Indians, southward of them, within the limits of the United States, or who have been at war with them, for the purpose of making peace with them, and of receiving them into the favor and protection of the United States, &c. They were instructed to demand that all prisoners, negroes and other property, taken during the war, be given up; to inform the Indians of the great occurrences of the last war; of the extent of country relinquished by the late treaty of peace with Great Britain; to give notice to the governors of Virginia, North and South Carolina and Georgia, that they may attend; if they think proper; and were authorized to expend $4000 in making presents to the Indians; a matter well understood in making Indian treaties, but unknown, at least, in our treaties with foreign nations, princes or states, unless on the Barbary coast. At treaty was accordingly made, in November following, between the commissioners plenipotentiaries of the United States, of the one part, and the head-men and warriors of all the Cherokees, of the other. The word nation is not used in the preamble, nor any part of the treaty, so that we are left to infer the capacity in which the Cherokees contracted, whether as an independent nation, or foreign state, or a tribe of Indians, from the terms of the treaty, its stipulations and conditions. “The Indians, for themselves and their respective tribes and towns, do acknowledge all the Cherokees to be under the protection of the United States.” (Art. 3, 1 Laws U. S. 322.) “The boundary allotted to the Cherokees for their hunting-grounds between the said Indians and the citizens of the United States, within the limits of the United States, is and shall be the following,” viz. (as defined in Art. 4.) “For the benefit and comfort of the Indians, and for the prevention of injuries and aggressions on the part of the citizens or Indians, the United States, in congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they shall think proper.” (Art. 9.) “That the Indians may have full confidence in the justice of the United States respecting their interests, they shall have the right to send a deputy of their choice, whenever they think fit, to congress.” (Art. 12.)

This treaty is, in the beginning, called “article:” the word “treaty” is only to be found in the concluding line, where it is called “this definitive treaty.” But article or treaty, its nature does not depend upon the name given it. It is not negotiated between ministers on both sides, representing their nations; the stipulations are wholly inconsistent with sovereignty; the Indians acknowledge their dependent character; hold the lands they occupy as an allotment of hunting-grounds; give to congress the exclusive right of regulating their trade, and managing all their affairs, as they may think proper. So it was understood by congress, as declared by them in their proclamation of 1st September 1788 (1 U.S. Laws 619), and so understood at the adoption of the constitution.

The meaning of the words “deputy to congress” in the twelfth article, may be as a person having a right to sit in that body, as, at that time, it was composed of delegates or deputies from the states, not as at present, representatives of the people of the states; or it may be as an agent or minister. But if the former was the meaning of the parties, it is conclusive to show, that he was not and could not be the deputy of a foreign state, wholly separated from the Union. If he sat in congress as a deputy from any state, it must be one having a political connection with, and within the jurisdiction of, the confederacy; if as a diplomatic agent, he could not represent an independent or sovereign nation, for all such have an unquestioned right to send such agents, when and where they please. The securing the right, by an express stipulation of the treaty; the declared objects in conferring the right, especially, when connected with the ninth article; show beyond a doubt, it was not to represent a foreign state or nation, or one to whom the least vestige of independence or sovereignty as to the United States appertained. There can be no dependence so anti-national, or so utterly subversive, of national existence, as transferring to a foreign government the regulation of its trade, and the management of all their affairs, at their pleasure. The nation or state, tribe or village, headmen or warriors of the Cherokees, call them by what name we please; call the articles they have signed a definitive treaty, or an indenture of servitude; they are not, by its force or virtue, a foreign state, capable of calling into legitimate action the judicial power of this Union, by the exercise of the original jurisdiction of this court, against a sovereign state, a component part of this nation. Unless the constitution has imparted to the Cherokees a national character, never recognised under the confederation; and which, if they ever enjoyed, was surrendered by the treaty of Hopewell; they cannot be deemed , in this court, plaintiffs in such a case as this.

In considering the bearing of the constitution on their rights, it must be borne in mind, that a majority of the states represented in the convention had ceded to the United States the soil and jurisdiction of their western lands, or claimed it to be remaining in themselves; that congress asserted, as to the ceded, and the states, as to the unceded territory, their right to the soil absolutely, and the dominion in full sovereignty, within their respective limits, subject only to Indian occupancy, not as foreign states or nations, but as dependent on, and appendant to the state governments; that before the convention acted, congress had erected a government in the north-western territory, containing numerous and powerful nations or tribes of Indians, whose jurisdiction was contemned, and whose sovereignty was overturned, if it ever existed, except by permission of the states or congress , by ordaining, that the territorial laws should extend over the whole district; and directing divisions for the execution of civil and criminal process in every part; that the Cherokees were then dependents, having given up all their affairs to the regulation and management of congress, and that all the regulations of congress over Indian affairs, were then in force over an immense territory, under a solemn pledge to the inhabitants, that whenever their population and circumstances would admit, they should form constitutions, and become free, sovereign and independent states, on equal footing with the old compenent members of the confederation; that by the existing regulations and treaties, the Indian tenure to their land was their allotment as hunting-grounds, without the power of alienation, that the right of occupancy was not individual, that the Indians were forbidden all trade or intercourse with any person, not licensed, or at a post not designated by regulation; that Indian affairs formed no part of the foreign concerns of the government, and that though they were permitted to regulate their internal affairs in their own way, it was not by any inherent right, acknowledged by congress or reserved by treaty, but because congress did not think proper to exercise the sole and exclusive right, declared and asserted in all their regulations from 1775 to 1788, in the articles of confederation, in the ordinance of 1787, and the proclamation of 1788; which the plaintiffs solemnly recognised and expressly granted by the treaty of Hopewell, in 1785, as conferred on congress, to be exercised as they should think proper.

To correctly understand the constitution, then, we must read it with reference to this well-known existing state of our relations with the Indians; the United States asserting the right of soil, sovereignty and jurisdiction, in full dominion; the Indians, occupancy of allotted hunting-grounds.

We can thus expound the constitution, without a reference to the definitions of a state or nation by any foreign writer, hypothetical reasoning, or the dissertations of the Federalist. This would be to substitute individual authority in place of the declared will of the sovereign power of the Union, in a written fundamental law. Whether it is the emanation from the people or the states, is a moot question, having no bearing on the supremacy of that supreme law which, from a proper source, has rightfully been imposed on us by sovereign power. Where its terms are plain, I should, as a dissenting judge, deem it judicial sacrilege to put my hands on any of its provisions, and arrange or construe them according to any fancied use, object, purpose or motive, which, by an ingenious train of reasoning I might bring my mind to believe was the reason for its adoption by the sovereign power, from whose hands it comes to me as the rule and guide to my faith, my reason and judicial oath. In taking out, putting in, or varying the plain meaning of a word or expression, to meet the results of my poor judgment, as to the meaning and intention of the great charter, which alone imparts to me my power to act as a judge of its supreme injunctions, I should feel myself acting upon it by judicial amendments, and not as one of its executors. I will not add unto these things; I will not take away from the words of this book of prophecy; I will not impair the force or obligation of its enactments, plain and unqualified in its terms, by resorting to the authority of names; the decisions of foreign courts; or a reference to books or writers. The plain ordinances are a safe guide to my judgment. When they admit of doubt, I will connect the words with the practice, usages and settled principles of this government, as administered by its fathers, before the adoption of the constitution; and refer to the received opinion and fixed understanding of the high parties who adopted it; the usage and practice of the new government, acting under its authority; and the solemn decisions of this court, acting under its high powers and responsibility; nothing fearing, that in so doing I can discover some sound and safe maxims of American policy and jurisprudence, which will always afford me light enough to decide on the constitutional powers of the federal and state governments, and all tribunals acting under their authority. They will, at least, enable me to judge of the true meaning and spirit of plain words, put into the forms of constitutional provisions, which this court, in the great case of Sturges v. Crowninshield, say “is to be collected chiefly from its words. It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, constructions become necessary, and a departure from the obvious meaning of words is justifiable.” But the absurdity and injustice of applying the provision to the case, must be so monstrous, that all mankind would, without hesitation, unite in rejecting the application. 4 Wheat. 202- 3. In another great case, Cohens v. Virginia, this court say, “the jurisdiction of this court then, being extended, by the letter of the constitution, to all cases arising under it, or under the laws of the United States, it follows, that those who would withdraw any case of this description from that jurisdiction, must sustain the exemption they claim, on the spirit and true meaning of the constitution, which spirit and true meaning must be so apparent as to overrule the words which its framers have employed.” 6 Wheat. 379-80. The principle of these cases is my guide in this. Sitting here, I shall always bow to such authority; and require no admonition to be influence by no other, in a case where I am called on to take a part in the exercise of the judicial power over a sovereign state.

Guided by these principles, I come to consider the third clause of the second section of the first article of the constitution; which provides for the apportionment of representatives and direct taxes “among the several states which may be included within this Union, according to their respective numbers, excluding Indians not taxed.” This clause embraces not only the old but the new states to be formed out of the territory of the United States, pursuant to the resolutions and ordinances of the old congress, and the conditions of the cession from the states, or which might arise by the division of the old. If the clause excluding Indians not taxed had not been inserted, or should be stricken out, the whole free Indian population of all the states would be included in the federal numbers, co-extensively with the boundaries of all the states included in this Union. The insertion of this clause conveys a clear definite declaration, that there were no independent sovereign nations or states, foreign or domestic, within their boundaries, which should exclude them from the federal enumeration, or any bodies or communities within the states, excluded from the action of the federal constitution, unless by the use of express words of exclusion. The delegates who represented the states in the convention well knew the existing relations between the United States and the Indians, and put the constitution in a shape for adoption, calculated to meet them; and the words used in this clause exclude the existence of the plaintiffs as a sovereign or foreign state or nation, within the meaning of this section, too plainly to require illustration or argument.

The third clause of the eight article shows most distinctly the sense of the convention in authorizing congress to regulate commerce with the Indian tribes. The character of the Indian communities had been settled by many years of uniform usuage, under the old government; characterized by the names of nations, towns, villages, tribes, head-men and warriors, as the writers of resolutions or treaties might fancy; governed by no settled rule, and applying the word nation to the Catawbas as well as the Cherokees. The framers of the constitution have thought proper to define their meaning to be, that they were not foreign nations nor states of the Union, but Indian tribes; thus declaring the sense in which they should be considered, under the constitution, which refers to them as tribes only, in this clause. I cannot strike these words from the book; nor construe Indian tribes, in this part of the constitution, to mean a sovereign state, under the first clause of the second section of the third article. It would be taking very great liberty, in the exposition of a fundamental law, to bring the Indians under the action of the legislative power as tribes, and of the judicial, as foreign states. The power conferred to regulate commerce with the Indian tribes, is the same given to the old congress, by the ninth article of the old confederation, “to regulate trade with the Indians.” The raising the word “trade” to the dignity of commerce, regulating it with Indians or Indian tribes, is only a change of words. Mere phraseology cannot make Indians nations, nor Indian tribes, foreign states.

The second clause of the third section of the fourth article of the constitution is equally convincing. “The congress shall have power to dispose of, and make all needful regulations and rules respecting, the territory of the United States.” What that territory was, the rights of soil, jurisdiction and sovereignty claimed and exercised by the states and the old congress, has been already seen. It extended to the formation of a government whose laws and process were in force within its whole extent, without a saving of Indian jurisdiction. It is the same power which was delegated to the old congress, and according to the judicial interpretation given by this court in Gibbons v. Ogden, 9 Wheat. 209, the word “to regulate” implied, in its nature, full power over the thing to be regulated; it excludes, necessarily, the action of all others that would perform the same operation on the same thing. Applying this construction to commerce and territory, leaves the jurisdiction and sovereignty of the Indian tribes wholly out of the question. The power given in this clause is of the most plenary kind. Rules and regulations respecting the territory of the United States–they necessarily include complete jurisdiction. It was necessary to confer it, without limitation, to enable the new government to redeem the pledge given by the old, in relation to the information and powers of the new states. The saving of “the claims” of “any particular states,” is almost a copy of a similar provision, part of the ninth article of the old confederation; thus delivering over to the new congress the power to regulate commerce with the Indian tribes, and regulate the territory they occupied, as the old had done, from the beginning of the revolution.

The only remaining clause of the constitution to be considered is the second clause in the sixth article. “All treaties made, or to be made, shall be the supreme law of the land.” In Chirac v. Chirac, this court declared, that it was unnecessary to inquire into the effect of the treaty with France in 1778, under the old confederation, because the confederation had yielded to our present constitution, and this treaty had been the supreme law of the land. 2 Wheat. 271. I consider the same rule as applicable to Indian treaties, whether considered as national compacts between sovereign powers, or as articles, agreements, contracts, or stipulations on the part of this government, binding and pledging the faith of the nation to the faithful observance of its conditions. They secure to the Indians the enjoyment of the rights they stipulate to give or secure, to their full extent, and in the plenitude of good faith; but the treaties must be considered as the rules of reciprocal obligations. The Indians must have their rights; but must claim them in that capacity in which they received the grant or guarantee. They contracted, by putting themselves under the protection of the United States, accepted of an allotment of hunting-grounds, surrendered and delegated to congress the exclusive regulation of their trade, and the management of all their own affairs, taking no assurance of their continued sovereignty, if they had any before, but relying on the assurance of the United States that they might have full confidence in their justice respecting their interests; stipulating only for the right of sending a deputy of their own choice to congress. If, then, the Indians claim admission to this court, under the treaty of Hopewell, they cannot be admitted as foreign states, and can be received in no other capacity.

The legislation of congress under the constitution, in relation to the Indians, has been in the same spirit, and guided by the same principles, which prevailed in the old congress, and under the old confederation. In order to give full effect to the ordinance of 1787, in the north-west territory, it was adapted to the present constitution of the United States in 1789 (1 U. S. Stat. 50); applied as the rule for its government to the territory south of the Ohio in 1790, except the sixth article (Ibid. 123); to the Mississippi territory in 1798 (Ibid. 549); and with no exception, to Indiana in 1800 (2 Ibid. 58); to Michigan in 1805 (Ibid. 309); to Illinois in 1809 (Ibid. 514).

In 1802, congress passed the act regulating trade and intercourse with the Indian tribes, in which they assert all the rights exercised over them under the old confederation, and do not alter in any degree their political relations. (2 U. S. Stat. 139.) In the same year, Georgia ceded her lands west of her present boundary to the United States; and by the second article of the convention, the United States ceded to Georgia whatever claim, right or title they may have to the jurisdiction or soil of any lands south of Tennessee, North or South Carolina and east of the line of the cession by Georgia. So that Georgia now has all the rights attached to her by her sovereignty, within her limits, and which are saved to her by the second section of the fourth article of the constitution, and all the United States could cede either by their power over the territory, or their treaties with the Cherokees.

The treaty with the Cherokees, made at Holston, in 1791, contains only one article which has a bearing on the political relations of the contracting parties. In the second article, the Cherokees stipulate “that the said Cherokee nation will not hold any treaty with any foreign power, individual state, or with individuals of any state.” (7 U. S. Stat. 39.) This affords an instructive definition of the words nation and treaty. At the treaty of Hopewell, the Cherokees, though subdued and suing for peace, before divesting themselves of any of the rights or attributes of sovereignty which this government ever recognised them as possessing by the consummation of the treaty, contracted in the name of the head-men and warriors of all the Cherokees; but at Holston, in 1791, in abandoning their last remnant of political right, contracted as the Cherokee nation, thus ascending in title as they descended in power, and applying the word treaty to a contract with an individual: this consideration will divest words of their magic.

In thus testing the rights of the complainants as to their national character, by the old confederation, resolutions and ordinances of the old congress, the provisions of the constitution, treaties held under the authority of both, and the subsequent legislation thereon, I have followed the rule laid down for my guide by this court, in Foster v. Neilson, 2 Pet. 307, in doing it “according to the principles established by the political department of the government.” “If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous. However individual judges may construe them (treaties), it is the province of the court to conform its decisions to the will of the legislature, if that will has been clearly expressed.” That the existence of foreign states cannot be known to this court judicially, except by some act or recognition of the other departments of this government is, I think, fully established in the case of United States v. Palmer, 3 Wheat. 634-5; The Divina Pastora, 4 Ibid. 63; and The Anna, 6 Ibid. 193.

I shall resort to the same high authority as the basis of my opinion on the powers of the state governments. “By the revolution, the duties as well as the powers of government devolved on the people of (Georgia) New Hampshire. It is admitted, that among the latter were comprehended the transcendent powers of parliament, as well as those of the executive department.” Dartmouth College v. Woodward, 4 Wheat. 651; 4 Ibid. 192; Green v. Biddle, 8 Ibid. 98; Ogden v. Saunders, 12 Ibid. 254, &c. “The same principle applies, though with no greater force, to the different states of America; for though they form a confederated government, yet the several states retain their individual sovereignties, and with respect to their municipal regulations, are to each other foreign.” Buckner v. Findley, 2 Pet. 591. The powers of government, which thus devolved on Georgia by the revolution, over her whole territory, are unimpaired by any surrender of her territorial jurisdiction, by the old confederation or the new constitution, as there was in both an express saving, as well as by the tenth article of amendments.

But if any passed to the United States by either, they were retroceded by the convention of 1802. Her jurisdiction over the territory in question is as supreme as that of congress, over what the nation has acquired by cession from the states, or treaties with foreign powers, combining the rights of the state and general government. Within her boundaries, there can be no other nation, community or sovereign power, which this department can judicially recognise as a foreign state, capable of demanding or claiming our interposition, so as to enable them to exercise a jurisdiction incompatible with a sovereignty in Georgia, which has been recognised by the constitution, and every department of this government acting under its authority. Foreign states cannot be created by judicial construction; Indian sovereignty cannot be roused from its long slumber, and awakened to action by our flat. I find no acknowledgment of it by the legislative or executive power. Until they have done so, I can stretch forth no arm for their relief, without violating the constitution. I say this with great deference to those from whom I dissent; but my judgment tells me, I have no power to act, and imperious duty compels me to stop at the portal, unless I can find some authority in the judgments of this court, to which I may surrender my own.

Indians have rights of occupancy to their lands, as sacred as the fee-simple, absolute title of the whites; but they are only rights of occupancy, incapable of alienation, or being held by any other than common right, without permission from the government. 8 Wheat. 592. In Fletcher v. Peck, this court decided, that the Indian occupancy was not absolutely repugnant to a seisin in fee in Georgia; that she had good right to grant land so occupied; that it was within the state, and could be held by purchasers under a law, subject only to extinguishment of the Indian title. 6 Cranch 88, 142; 9 Ibid. 11. In the case of Johnson v. McIntosh, 8 Wheat. 543, 571, the nature of the Indian title to lands on this continent, throughout its whole extent, was most ably and elaborately considered; leading to conclusions satisfactory to every jurist, clearly establishing that, from the time of discovery under the royal government, the colonies, the states, the confederacy and this Union, their tenure was the same occupancy, their rights occupancy, and nothing more; that the ultimate absolute fee, jurisdiction and sovereignty was in the government, subject only to such rights; that grants vested soil and dominion, and the powers of government, whether the land granted was vacant or occupied by Indians.

By the treaty of peace, the powers of government, and the rights of soil, which had previously been in Great Britain, passed definitively to these states. 8 Wheat. 584. They asserted these rights, and ceded soil and jurisdiction to the United States. The Indians were considered as tribes of fierce savages; a people with whom it was impossible to mix, and who could not be governed as a distinctly society. They are not named or referred to in any part of the opinion of the court, as nations or states, and nowhere declared to have any national capacity or attributes of sovereignty, in their relation to the general or state governments. The principles established in this case have been supposed to apply to the rights which the nations of Europe claimed to acquire by discovery, as only relative between themselves, and that they did not assume thereby any rights of soil or jurisdiction over the territory in the actual occupation of the Indians. But the language of the court is too exhibit to be misunderstood. “This principle was, that discovery gave title to the government by whose subjects or by whose authority it was made, against all other European governments, which title might be consummated by possession.” Those relations which were to subsist between the discoverer and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.

While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in the possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian rights of occupancy. The history of America, from its discovery to the present day proves, we think, the universal recognition of these principles. 8 Wheat. 574. I feel it my duty, to apply them to this case. They are in perfect accordance with those on which the governments of the united and individual states have acted in all their changes; they were asserted and maintained by the colonies, before they assumed independence. While dependent themselves on the crown, they exercised all the rights of dominion and sovereignty over the territory occupied by the Indians; and this is the first assertion by them of rights as a foreign state, within the limits of a state. If their jurisdiction within their boundaries has been unquestioned, until this controversy; if rights have been exercised, which are directly repugnant to those now claimed; the judicial power cannot divert the states of rights of sovereignty, and transfer them to the Indians, by decreeing them to be a nation, or foreign state, pre-existing and with rightful jurisdiction and sovereignty over the territory they occupy. This would reverse every principle on which our government have acted for fifty-five years; and force, by mere judicial power, upon the other departments of this government, and the states of this Union, the recognition of the existence of nations and states, within the limits of both, possessing dominion and jurisdiction paramount to the federal and state constitutions. It will be a declaration, in my deliberate judgment, that the sovereign power of the people of the United States and Union must hereafter remain incapable of action over territory to which their rights in full dominion have been asserted with the most rigorous authority, and bow to a jurisdiction hitherto unknown; unacknowledged by any department of the government; denied by all, through all time; unclaimed till now; and now declared to have been called into exercise, not by any change in our constitution, the laws of the Union or the states; but pre-existent and paramount over the supreme law of the land.

I disclaim the assumption of a judicial power so awfully responsible. No assurance or certainty of support in public opinion can induce me to disregard a law so supreme; so plain to my judgment and reason. Those who have brought public opinion to bear on this subject, act under a mere moral responsibility; under on oath, which binds their movements to the straight and narrow line drawn by the constitution. Politics or philanthropy may impel them to pass it; but when their objects can be effectuated only by this court, they must not expect its members to diverge from it, when they cannot conscientiously take the first step, without breaking all the high obligations under which they administer the judicial power of the constitution. The account of my executorship cannot be settled before the court of public opinion, or any human tribunal. None can release the balance which will accrue by the violation of my solemn conviction of duty.

Thompson, Justice ( Dissenting. )–Entertaining different views of the questions now before us in this case, and having arrived at a conclusion different from that of a majority of the court, and considering the importance of the case and the constitutional principle involved in it; I shall proceed, with all due respect for the opinion of others, to assign the reasons upon which my own has been formed.

In the opinion pronounced by the court, the merits of the controversy between the state of Georgia and the Cherokee Indians have not been taken into consideration. The denial of the application for an injunction has been placed solely on the ground of want of jurisdiction in this court to grant the relief prayed for. It became, therefore, unnecessary to inquire into the merits of the case. But thinking as I do, that the court has jurisdiction of the case, and may grant relief, at least, in part; it may become necessary for me, in the course of my opinion, to glance at the merits of the controversy; which I shall, however, do very briefly, as it is important only so far as relates to the present application.

Before entering upon the examination of the particular points which have been made and argued, and for the purpose of guarding against any erroneous conclusions, it is proper that I should state, that I do not claim for this court, the exercise of jurisdiction upon any matter properly falling under the denomination of political power. Relief to the full extent prayed by the bill may be beyond the reach of this court. Much of the matter therein contained, by way of complaint, would seem to depend for relief upon the exercise of political power; and as such, appropriately devolving upon the executive, and not the judicial, department of the government. This court can grant relief so far only as the rights of person or property are drawn in question, and have been infringed.

It would very ill become the judicial station which I hold, to indulge in any remarks upon the hardship of the case, or the great injustice that would seem to have been done to the complainants, according to the statement in the bill, and which, for the purpose of the present motion, I must assume to be true. If they are entitled to other than judicial relief, it cannot be admitted, that in a government like ours, redress is not to be had in some of its departments; and the responsibility for its denial must rest upon those who have the power to grant it. But believing as I do, that relief to some extent falls properly under judicial cognisance, I shall proceed to the examination of the case under the following heads. 1. Is the Cherokee nation of Indians a competent party to sue in this court? 2. Is a sufficient case made out in the bill, to warrant this court in granting any relief? 3. Is an injunction the fit and appropriate relief?

1. By the constitution of the United States it is declared (Art. 3, Section 2), that the judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority, &c.; to controversies between two or more states, &c., and between a state or the citizen thereof, and foreign states, citizens or subjects. The controversy in the present case is alleged to be between a foreign state, and one of the states of the Union; and does not, therefore, come within the 11th amendment of the constitution, which declares that the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or subjects of any foreign state. This amendment does not, therefore, extend to suits prosecuted against one of the United States by a foreign state. The constitution further provides, that in all cases where a state shall be a party, the supreme court shall have original jurisdiction. Under these provisions in the constitution, the complainants have filed their bill in this court, in the character of a foreign state, against the state of Georgia; praying an injunction to restrain that state from committing various alleged violations of the property of the nation, claimed under the laws of the United States, and treaties made with the Cherokee nation.

That a state of this Union may be sued by a foreign state, when a proper case exists and is presented, is too plainly and expressly declared in the constitution, to admit of doubt; and the first inquiry is, whether the Cherokee nation is a foreign state, within the sense and meaning of the constitution. The terms state and nation are used in the law of nations, as well as in common parlance, as importing the same thing; and imply a body of men, united together, to procure their mutual safety and advantage, by means of their union. Such a society has its affairs and interests to manage; it deliberates, and takes resolutions in common, and thus becomes a moral person, having an understanding and a will peculiar to itself, and is susceptible of obligations and laws. Vattel 1. Nations being composed of men naturally free and independent, and who, before the establishment of civil societies, live together in the state of nature, nations or sovereign states; are to be considered as so many free persons, living together in a state of nature. Vattel 2, Section 4. Every nation that governs itself, under what form soever, without any dependence on a foreign power, is a sovereign state. Its rights are naturally the same as those of any other state. Such are moral persons who live together in a natural society, under the law of nations. It is sufficient, if it be really sovereign and independent: that is, it must govern itself by its own authority and laws. We ought, therefore, to reckon in the number of sovereigns those states that have bound themselves to another more powerful, although by an unequal alliance. The conditions of these unequal alliances may be infinitely varied; but whatever they are, provided the inferior ally reserves to itself the sovereignty or the right to govern its own body, it ought to be considered an independent state. Consequently, a weak state, that, in order to provide for its safety, places itself under the protection of a more powerful one, without stripping itself of the right of government and sovereignty, does not cease, on this account, to be placed among the sovereigns who acknowledge no other power. Tributary and feudatory states do not thereby cease to be sovereign and independent states, so long as self-government, and sovereign and independent authority, is left in the administration of the state. Vattel, c. 1, pp. 16, 17.

Testing the character and condition of the Cherokee Indians by these rules, it not perceived how it is possible to escape the conclusion, that they form a sovereign state. They have always been dealt with as such by the government of the United States; both before and since the adoption of the present constitution. They have been admitted and treated as a people governed solely and exclusively by their own laws, usages, and customs, within their own territory, claiming and exercising exclusive dominion over the same; yielding up by treaty, from time to time, portions of their land, but still claiming absolute sovereignty and self-government over what remained unsold. And this has been the light in which they have, until recently, been considered, from the earliest settlement of the country, by the white people. And indeed, I do not understand, that it is denied by a majority of the court, that the Cherokee Indians form a sovereign state, according to the doctrine of the law of nations; but that, although a sovereign state, they are not considered a foreign state, within the meaning of the constitution.

Whether the Cherokee Indians are to be considered a foreign state or not, is a point on which we cannot expect to discover much light form the law of nations. We must derive this knowledge chiefly from the practice of our own government, and the light in which the nation has been viewed and treated by it. The numerous tribes of Indians, and among others the Cherokee nation, occupied many parts of this country, long before the discovery by Europeans, is abundantly established by history; and it is not denied, but that the Cherokee nation occupied the territory now claimed by them, long before that period. It does not fall within the scope and object of the present inquiry, to go into a critical examination of the nature and extent of the rights growing out of such occupancy, or the justice and humanity with which the Indians have been treated, or the justice respected. That they are entitled to such occupancy, so long as they choose quietly and peaceably to remain upon the land, cannot be questioned. The circumstance of their original occupancy is here referred to, merely for the purpose of showing, that if these Indian communities were then, as they certainly were, nations, they must have been foreign nations, to all the world; not having any connection, or alliance of any description, with any other power on earth. And if the Cherokee were then a foreign nation; when or how have they lost that character, and ceased to be a distinct people, and become incorporated with any other community?

They have never been, by conquest, reduced to the situation of subjects to any conqueror, and thereby lost their separate national existence, and the rights of self-government, and become subject to the laws of the conqueror. Whenever wars have taken place, they have been followed by regular treaties of peace, containing stipulations on each side, according to existing circumstances; the Indian nation always preserving its distinct and separate national character. And notwithstanding we do not recognise the right of the Indians to transfer the absolute title of their lands to any other than ourselves, the right of occupancy is still admitted to remain in them, accompanied with the right of self-government, according to their own usages and customs; and with the competency to act in a national capacity, although placed under the protection of the whites, and owing a qualified subjection, so far as is requisite for public safety. But the principle is universally admitted, that this occupancy belongs to them as a matter of right, and not by mere indulgence. They cannot be disturbed in the enjoyment of it, or deprived of it, without their free consent; or unless a just and necessary war should sanction their dispossession.

In this view of their situation, there is as full and complete recognition of their sovereignty, as if they were the absolute owners of the soil. The progress made in civilization by the Cherokee Indians cannot surely be considered as in any measure destroying their national or foreign character, so long as they are permitted to maintain a separate and distinct government; it is their political condition that constitutes their foreign character, and in that sense must the term foreign be understood, as used in the constitution. It can have no relation to local, geographical or territorial position. It cannot mean a country beyond sea. Mexico or Canada is certainly to be considered a foreign country, in reference to the United States. It is the political relation in which one government or country stands to another, which constitutes it foreign to the other. The Cherokee territory being within the chartered limits of Georgia, does not affect the question. When Georgia is spoken of as a state, reference is had to its political character, and not to boundary; and it is not perceived, that any absurdity or inconsistency grows out of the circumstance, that the jurisdiction and territory of the state of Georgia surround or extend on every side of the Cherokee territory. It may be inconvenient to the state, and very desirable, that the Cherokees should be removed; but it does not at all affect the political relation between Georgia and those Indians. Suppose, the Cherokee territory had been occupied by Spaniards, or any other civilized people, instead of Indians, and they had, from time to time, ceded to the United States portions of their lands, precisely in the same manner as the Indians have done, and in like manner, retained and occupied the part now held by the Cherokees, and having a regular government established there; would it not only be considered a separate and distinct nation or state, but a foreign nation, with reference to the state of Georgia or the United States? If we look to lexicographers, as well as approved writers, for the use of the term foreign, it may be applied with the strictest propriety to the Cherokee nation. In a general sense, it is applied to any person or thing belonging to another nation or country. We call an alien a foreigner, because he is not of the country in which we reside. In a political sense, we call every country foreign, which is not within the jurisdiction of the same government. In this sense, Scotland, before the Union, was foreign to England; and Canada and Mexico, foreign to the United States. In the United States, all trans-atlantic countries are foreign to us.

But this is not the only sense in which it is used. It is applied, with equal propriety, to an adjacent territory, as to one more remote. Canada or Mexico is as much foreign to us, as England or Spain. And it may be laid down as a general rule, that when used in relation to countries, in a political sense, it refers to the jurisdiction or government of the country. In a commercial sense, we call all goods coming from any country, not within our own jurisdiction, foreign goods. In the diplomatic use of the term, we call every minister a foreign minister, who comes from another jurisdiction or government. And this is the sense in which it is judicially used by this court, even as between the different states of this Union. It the case of Buckner v. Finley, 2 Pet. 590, it was held, that a bill of exchange, drawn in one state of the Union, on a person living in another state, was a foreign bill, and to be treated as such in the courts of the United States. The court says, that in applying the definition of a foreign bill, to the political character of the several states of this Union, in relation to each other, we are all clearly of opinion, that bills drawn in one of these states upon persons living in another of them, partake of the character of foreign bills, and ought to be so treated. That, for all national purposes embraced by the federal constitution, the states and the citizens thereof are one; united under the same sovereign authority, and governed by the same laws. In all other respects, the states are necessarily foreign to, and independent of, each other; their constitutions and forms of government being, although republican, altogether different, as are their laws and institutions. So, in the case of Warder v. Arell, decided in the court of appeals of Virginia, 2 Wash. 298, the court, in speaking of foreign contracts, and saying that the laws of the foreign country where the contract was made must govern, add, the same principle applies, though with no greater force, to the different states of America; for though they form a confederated government, yet the several states retain their individual sovereignty; and, with respect to their municipal regulations, are to each other foreign.

It is manifest from these cases, that a foreign state, judicially considered, consists in its being under a different jurisdiction or government, without any reference to its territorial position. This is the marked distinction, particularly in the case of Buckner v. Finley. So far as these states are subject to the laws of the Union, they are not foreign to each other. But so far as they are subject to their own respective state laws and government, they are foreign to each other. And if, as here decided, a separate and distinct jurisdiction or government is the test by which to decide whether a nation be foreign or not, I am unable to perceive any sound and substantial reason why the Cherokee nation should not be so considered. It is governed by its own laws, usages and customs; it has no connection with any other government or jurisdiction, except by way of treaties entered into with like form and ceremony as with other foreign nations. And this seems to be the view taken of them by Mr. Justice Johnson in the case of Fletcher v. Peck, 6 Cranch 146. In speaking of the state and condition of the different Indian nations, he observes, “that some have totally extinguished their national fire, and submitted themselves to the laws of the states; others have by treaty acknowledged that they hold their national existence at the will of the state, within which they reside; others retain a limited sovereignty, and the absolute proprietorship of their soil. The latter is the case of the tribes to the west of Georgia, among which are the Cherokees. We legislate upon the conduct of strangers or citizens within their limits, but innumerable treaties formed with them, acknowledge them to be an independent people; and the uniform practice of acknowledging their right of soil, by purchasing from them, and restraining all persons from encroaching upon their territory, makes it on necessary to insist upon their rights of soil.”

Although there are many cases in which one of these United States has been used by another, I am not aware of any instance in which one of the United States has been used by a foreign state. But no doubt can be entertained, that such an action might be sustained, upon a proper case being presented. It is expressly provided for in the constitution; and this provision is certainly not to be rejected as entirely nugatory. Suppose, a state, with the consent of congress, should enter into an agreement with a foreign power (as might undoubtedly be done, Constitution, Art. 1, Section 10), for a loan of money; would not an action be sustained in this court to enforce payment thereof? Or suppose, the state of Georgia, with the consent of congress, should purchase the right of the Cherokee Indians to this territory, and enter into a contract for the payment of the purchase-money ; could there be a doubt, that an action could be sustained upon such a contract? No objection would certainly be made for want of competency in that nation to make a valid contract. The numerous treaties entered into with the nation would be a conclusive answer to any such objection. And if an action could be sustained in such case, it must be under that provision in the constitution which gives jurisdiction to this court in controversies between a state and a foreign state. For the Cherokee nation is certainly not one of the United States.

And what possible objection can lie to the right of the complainants to sustain an action? The treaties made with this nation purport to secure to it certain rights. These are not gratuituous obligations assumed on the part of the United States. They are obligations founded upon a consideration paid by the Indians, by cession of part of their territory. And if they, as a nation, are competent to make a treaty or contract, it would seem to me, to a strange inconsistency, to deny to them the right and the power to enforce such a contract. And where the right secured by such a treaty forms a proper subject for judicial cognisance, I can perceive no reason why this court has not jurisdiction of the case. The constitution expressly gives to the court jurisdiction, in all cases of law and equity arising under treaties made with the United States. No suit will lie against the United States, upon such treaty, because no possible case can exist, where the United States can be used. But not so with respect to a state: and if any right secured by treaty has been violated by a state, in a case proper for judicial inquiry, no good reason is perceived, why an action may not be sustained for violation of a right secured by treaty, as well as by contract under any other form. The judiciary is certainly not the department of the government authorized to enforce all rights that may be recognised and secured by treaty. In many instances, these are mere political rights with which the judiciary cannot deal. But when the question relates to a mere right of property, and a proper case can be made between competent parties, it forms a proper subject for judicial inquiry.

It is a rule, which has been repeatedly sanctioned by this court, that the judicial department is to consider as sovereign and independent states or nations, those powers that are recognised as such by the executive and legislative departments of the government; they being more particularly intrusted with our foreign relations. 4 Cranch 241; 3 Wheat. 634; 4 Ibid. 64. If we look to the whole course of treatment by this country of the Indians, from the year 1775, to the present day, when dealing with them in their aggregate capacity as nations or tribes, and regarding the mode and manner in which all negotiations have been carried on and concluded with them; the conclusion appears to me irresistible, that they have been regarded, by the executive and legislative branches of the government, not only as sovereign and independent, but as foreign nations or tribes, not within the jurisdiction, nor under the government of the states within which they were located. This remark is to be understood, of course, as referring only to such as live together as a distinct community, under their own laws, usages and customs; and not to the mere remnant of tribes which are to be found in many parts of our country, who have become mixed with the general population of the country; their national character extinguished, and their usages and customs in a great measure and abandoned; self-government surrendered; and who have, voluntarily, or by the force of circumstances which surround them, gradually become subject to the laws of the states within which they are situated. Such, however, is not the case with the Cherokee nation. It retains its usages and customs and self-government, greatly improved by the civilization which it has been the policy of the United States to encourage and foster among them. All negotiations carried on with the Cherokees and other Indian nations have been by way of treaty, with all the formality attending the making of treaties with any foreign power. The journals of congress, from the year 1775, down to the adoption of the present constitution, abundantly establish this fact. And since that period, such negotiations have been carried on by the treaty-making power, and uniformly under the denomination of treaties.

What is a treaty, as understood in the law of nations? It is an agreement or contract between two or more nations or sovereigns, entered into by agents appointed for that purpose, and duly sanctioned by the supreme power of the respective parties. And where is the authority, either in the constitution, or in the practice of the government, for making any distinction between treaties made with the Indian nations, and any other foreign power? They relate to peace and war; the surrender of prisoners; the cession of territory; and the various subjects which are usually embraced in such contracts between sovereign nations.

A recurrence to the various treaties made with the Indian nations and tribes, in different parts of the country, will fully illustrate this view of the relation in which our government has considered the Indians as standing. It will be sufficient, however, to notice a few of the many treaties made with this Cherokee nation. By the treaty of Hopewell, of the 28th of November 1785 (1 Laws U.S. 322), mutual stipulations are entered into, to restore all prisoners taken by either party, and the Cherokees stipulate to restore all negroes and all other property taken from the citizens of the United States; and a boundary line is settled between the Cherokees and the citizens of the United States, and this embraced territory within the chartered limits of Georgia. And by the sixth article, it is provided, that if any Indian, or person residing among them, or who shall take refuge in their nation, shall commit a robbery or murder, or other capital crime, on any citizen of the United States, or person under their protection, the nation or tribe to which such offender may belong, shall deliver him up, to be punished according to the ordinances of the United States. What more explicit recognition of the sovereignty and independence of this nation could have been made? It was a direct acknowledgment, that this territory was under a foreign jurisdiction. If it had been understood, that the jurisdiction of the state of Georgia extended over this territory, no such stipulation would have been necessary. The process of the courts of Georgia would have run into this, as well as into any other part of the state. It is a stipulation analogous to that contained in the treaty of 1794 with England, (8 U.S. Stat. 129), by the 27th article of which it is mutually agreed, that each party will deliver up to justice all persons, who, being charged with murder or forgery, committed within the jurisdiction of either, shall seek an asylum within any of the countries of the other. Upon what ground can any distinction be made, as to the reason and necessity of such stipulation, in the respective treaties? The necessity for the stipulation in both cases must be, because the process of one government and jurisdiction will not run into that of another; and separate and distinct jurisdiction, as has been shown, is what makes governments and nations foreign to each other in their political relations.

The same stipulation, as to delivering up criminals who shall take refuge in the Cherokee nation, is contained in the treaty of Holston, of the 2d of July 1791. (7 U.S. Stat. 39.) And the 11th article fully recognises the jurisdiction of the Cherokee nation over the territory occupied by them. It provides, that if any citizen of the United States shall go into the territory belonging to the Cherokees, and commit any crime upon, or trespass against, the person or property of any friendly Indian, which, if committed within the jurisdiction of any state, would be punishable by the laws of each state, shall be subject to the same punishment, and proceeded against in the same manner, as if the offence had been committed within the jurisdiction of the state. Here is an explicit admission that the Cherokee territory is not within the jurisdiction of any state. If it had been considered within the jurisdiction of Georgia, such a provision would not only be unnecessary but absurd. It is a provision looking to the punishment of a citizen of the United States, for some act done in a foreign country. If exercising exclusive jurisdiction over a country is sufficient to constitute the state or power so exercising it, a foreign state, the Cherokee nation may assuredly, with the greatest propriety, be so considered.

The phraseology of the clause in the constitution, giving to congress the power to regulate commerce, is supposed to afford an argument against considering the Cherokees a foreign nation. The clause reads thus, “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” (Constitution, Art. 1, Section 8.) The argument is, that if the Indian tribes are foreign nations, they would have been included, without being specially named, and being so named, imports something different from the previous term “foreign nations.” This appears to me to partake too much of a mere verbal criticism, to draw after it the important conclusion, that Indian tribes are not foreign nations. But the clause affords, irresistibly, the conclusion, that the Indian tribes are not there understood as included within the description of, the “several states;” or there could have been no fitness in immediately thereafter particularizing “the Indian tribes.” It is generally understood, that every separate body of Indians is divided into bands or tribes, and forms a little community within the nation to which it belongs; and as the nation has some particular symbol, by which it is distinguished from others, so each tribe has a badge from which it is denominated, and each tribe may have rights applicable to itself. Cases may arise, where the trade with a particular tribe may require to be regulated, and which might not have been embraced under the general description of the term nation, or it might at least have left the case somewhat doubtful; as the clause was intended to vest in congress the power to regulate all commercial intercourse, this phraseology was probably adopted to meet all possible cases; and the provision would have been imperfect, if the term Indian tribes had been omitted. Congress could not then, have regulated the trade with any particular tribe that did not extend to the whole nation. Or, it may be, that the term tribe is here used as importing the same thing as that of nation, and adopted merely to avoid the repetition of the term nation: and the Indians are specially named, because there was a provision somewhat analogous in the confederation; and entirely omitting to name the Indian tribes, might have afforded some plausible grounds for concluding that this branch of commercial intercourse was not subject to the power of congress.

On examining the journals of the old congress, which contain numerous proceedings and resolutions respecting the Indians, the terms “nation” and “tribe” are frequently used indiscriminately, and as importing the same thing; and treaties were sometimes entered into with the Indians, under the description or denomination of tribes, without naming the nation. See Journals 30th June and 12th of July 1775; 8th March 1776; 20th October 1777; and numerous other instances.

But whether any of these suggestions will satisfactorily account for the phraseology here used, or not, it appears to me, to be of too doubtful import, to outweigh the considerations to which I have referred, to show that the Cherokees are a foreign nation. The difference between the provision in the constitution and that in the confederation on this subject, appears to me, to show very satisfactorily, that so far as related to trade and commerce with the Indians, wherever found in tribes, whether within or without the limits of a state, was subject to the regulation of congress. The provision in the confederation, Art. 9 (1 U. S. Stat. 7), is, that congress shall have the power of regulating the trade and management of 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 no infringed or violated.

The true import of this provision is certainly not very obvious: see Federalist, No. 42. What were the legislative rights intended to be embraced within the proviso, is left in great uncertainty. But whatever difficulty on that subject might have arisen, under the confederation, it is entirely removed, by the omission of the proviso in the present constitution; thereby leaving this power entirely with congress, without regard to any state right on the subject; and showing that the Indian tribes were considered as distinct communities, although within the limits of a state.

The provision, as contained in the confederation, may aid in illustrating what is to be inferred from some parts of the constitution (Art. 1, Section 1, par. 3), as to the apportionment of representatives, and acts of congress in relation to the Indians, to wit, that they are divided into two distinct classes. One composed of those who are considered members of the state within which they reside, and the other not: the former embracing the remnant of the tribes who had lost their distinctive character as a separate community, and had become subject to the laws of the states; and the latter, such as still retained their original connection as tribes, and live together under their own laws, usages and customs, and, as such, are treated as a community independent of the state. No very important conclusion, I think, therefore, can be drawn from the use of the term “tribe,” in this clause of the constitution, intended merely for commercial regulations. If considered as importing the same thing as the term “nation,” it might have been adopted, to avoid the repetition of the word nation.

Other instances occur in the constitution, where different terms are used, importing the same thing. Thus, in the clause giving jurisdiction to this court, the term “foreign states” is used, instead of “foreign nations,” as in the clause relating to commerce. And again, in Art. 1, Section 10, a still different phraseology is employed. “No state, without the consent of congress, shall enter into any agreement or compact with a ‘foreign power.'” But each of these terms, nation, state, power, as used in different parts of the constitution, imports the same thing, and does not admit of a different interpretation. In the treaties made with the Indians, they are sometimes designated under the name of tribe, and sometimes that of nation. In the treaty of 1804, with the Delaware Indians, they are denominated the “Delaware tribe of Indians.” (7 U. S. Stat. 81.) And in a previous treaty with the same people, in the year 1778, they are designated by the name of “the Delaware nation.” (Ibid. 13.)

As this was one of the earliest treaties made with the Indians, its provisions may serve to show in what light the Indian nations were viewed by congress at that day. The territory of the Delaware nation was within the limits of the states of New York, Pennsylvania and New Jersey. Yet we hear of no claim of jurisdiction set up by those states over these Indians. This treaty, both in form and substance, purports to be an arrangement with an independent sovereign power. It even purports to be articles of confederation. It contains stipulations relative to peace and war, and for permission to the United States troops to pass through the country of the Delaware nation. That neither party shall protect, in their respective states, servants, slaves or criminals, fugitives from the other; but secure and deliver them up. Trade is regulated between the parties. And the sixth article shows the early pledge of the United States to protect the Indians in their possessions, against any claims or encroachments of the states. It recites, that whereas, the enemies of the United States have endeavored to impress the Indians in general with an opinion, that it is the design of the states to extirpate the Indians, and take possession of their country; to obviate such false suggestions, the United States do engage to guaranty to the aforesaid nation of Delawares and their heirs, all their territorial rights, in the fullest and most ample manner, as it has been bounded by former treaties, &c. And provision is even made for inviting other tribes to join the confederacy; and to form a state, and have a representation in congress, should it be found conducive to the mutual interest of both parties. All which provisions are totally inconsistent with the idea of these Indians being considered under the jurisdiction of the states, although their chartered limits might extend over them. The recital, in this treaty, contains a declaration and admission of congress of the rights of Indians in general; and that the impression which our enemies were endeavoring to make, that it was the design of the states to extirpate them, and take their lands, was false. And the same recognition of their rights runs through all the treaties made with the Indian nations or tribes, from that day down to the present time.

The twelfth article of the treaty of Hopewell contains a full recognition of the sovereign and independent character of the Cherokee nation. To impress upon them full confidence in the justice of the United States respecting their interest, they have a right to send a deputy of their choice to congress. No one can suppose, that such deputy was to take his seat as a member of congress, but that he would be received as the agent of that nation. It is immaterial, what such agent is called, whether minister, commissioner or deputy; he is to represent his principal. There could have been no fitness or propriety in any such stipulation, if the Cherokee nation had been considered in any way incorporated with the state of Georgia, or as citizens of that state. The idea of the Cherokees being considered citizens, is entirely inconsistent with several of our treaties with them. By the eighth article of the treaty of the 26th December 1817 (7 U.S. Stat. 159), the United States stipulate to give 640 acres of land to each head of any Indian family residing on the lands now ceded, or which may hereafter be surrendered, to the United States, who may wish to become citizens of the United States; so also, the second article of the treaty with the same nation, of the 10th of March 1819, contains the same stipulation in favor of the heads of families, who may choose to become citizens of the United States; thereby clearly showing that they were not considered citizens, at the time those stipulations were entered into, or the provision would have been entirely unnecessary, if not absurd. And if not citizens, they must be aliens or foreigners, and such must be the character of each individual belonging to the nation. And it was, therefore, very aptly asked, on the argument, and I think not very easily answered, how a nation composed of aliens or foreigners can be other than a foreign nation.

The question touching the citizenship of an Oneida Indian came under the consideration of the supreme court of New York in the case of Jackson v. Goodell, 20 Johns. 193. The lessor of the plaintiff was the son of an Oneida Indian, who had received a patent for the lands in question, as an officer in the revolutionary was; and although the supreme court, under the circumstances of the case, decided he was a citizen, yet Chief Justice Spencer observed, we do not mean to say, that the condition of the Indian tribes (alluding to the Six Nations), at former and remote periods, has been of subjects or citizens of the state; their condition has been gradually changing, until they have lost every attribute of sovereignty, and become entirely dependent upon, and subject to, our government. But the cause being carried up to the court of errors, Chancellor Kent, in a very elaborate and able opinion on that question, came to a different conclusion as to the citizenship of the Indian, even under the strong circumstances of that case.

“The Oneidas,” he observed, and “the tribes composing the Six Nations of Indians, were originally free and independent nations, and it is for the counsel who contend that they have now ceased to be a district people, and become completely incorporated with us, to point out the time when that event took place. In my view, they have never been regarded as citizens, or members of our body politic. They have always been, and still are, considered by our laws, as dependent tribes governed by their own usages and chiefs; but placed under our protection, and subject to our coercion so far as the public safety required it, and no further. The whites have been gradually pressing upon them, as they kept receding from the approaches of civilization. We have purchased the greater part of their lands, destroyed their hunting-grounds, subdued the wilderness around them, overwhelmed them with our population, and gradually abridged their native independence. Still, are permitted to exist as distinct nations, and we continue to treat with their sachems in a national capacity, and as being the lawful representatives of their tribes. Through the whole course of our colonial history, these Indians were considered dependent allies. The colonial authorities uniformly negotiated with them, and made and observed treaties with them, as sovereign communities exercising the right of free deliberation and action; but, in consideration of protection, owing a qualified subjection, in a national capacity, to the British crown. No argument can be drawn against the sovereignty of these Indian nations, from the fact of their having put themselves and their lands under the protection of the British crown; such a fact is of frequent occurrence between independent nations. One community may be bound to another by a very unequal alliance, and still be a sovereign state. Vattel, lib. 1, c. 16, Section 194. The Indians, though born within our territorial limits, are considered as born under the dominion of their own tribes. There is nothing in the proceedings of the United States, during the revolutionary war, which went to impair, and much less to extinguish, the national character of the Six Nations, and consolidate them with our own people. Every public document speaks a different language, and admits their distinct existence and competence as nations; but placed in the same state of dependence, and calling for the same protection, which existed before the war. In the treaties made with them, we have the forms and requisites peculiar to the intercourse between friendly and independent states; and they are conformable to the received institutes of the law of nations. What more demonstrable proof can we require, of existing and acknowledged sovereignty?”

If this be a just view of the Oneida Indians, the rules and principles here applied to that nation may, with much greater force, be applied to the character, state and condition of the Cherokee nation of Indians; and we may safely conclude, that they are not citizens, and must, of course, be aliens: and if aliens in their individual capacities, it will be difficult to escape the conclusion, that, as a community, they constitute a foreign nation or state, and thereby become a competent party to maintain an action in this court, according to the express terms of the constitution.

And why should this court scruple to consider this nation a competent party to appear here? Other departments of the government, whose right it is to decide what powers shall be recognised as sovereign and independent nations, have treated this nation as such. They have considered it competent, in its political and national capacity, to enter into contracts of the most solemn character; and if these contracts contain matter proper for judicial inquiry, why should we refuse to entertain jurisdiction of the case? Such jurisdiction is expressly given to this court, in cases arising under treaties. If the executive department does not think proper to enter into treaties or contracts with the Indian nations, no case with them can arise calling for judicial cognisance. But when such treaties are found, containing stipulations proper for judicial cognisance, I am unable to discover reasons satisfying my mind that this court has not jurisdiction of the case.

The next inquiry is, whether such a case is made out in the bill, as to warrant this court in granting any relief? I have endeavored to show, that the Cherokee nation is a foreign state; and as such, a competent party to maintain an original suit in this court against one of the United States. The injuries complained of are violations committed and threatened upon the property of the complainants, secured to them by the laws and treaties of the United States. Under the constitution, the judicial power of the United States extends expressly to all cases in law and equity, arising under the laws of the United States, and treaties made or which shall be made, under the authority of the same.

In the case of Osborn v United States Bank, 9 Wheat. 819 the court say, that this clause in the constitution enable the judicial department to receive jurisdiction to the full extent of the constitution, laws and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form presented by law. It then becomes a case, and the constitution authorizes the application of the judicial power. The question presented in the present case is, under the ordinary form of judicial proceedings, to obtain an injunction to prevent or stay a violation of the rights of property claimed and held by the complainants, under the treaties and laws of the United States; which, it is alleged, have been violated by the state of Georgia. Both the form and the subject-matter of the complaint, therefore, fall properly under judicial cognisance.

What the rights of property in the Cherokee nation are, may be discovered from the several treaties which have been made between the United States and that nation, between the years 1785 and 1819. It will be unnecessary to notice many of them. They all recognise, in the most unqualified manner, a right of property in this nation, to the occupancy, at least, of the lands in question. It is immaterial, whether this interest is a mere right of occupancy, or an absolute right of the soil. The complaint is for a violation, or threatened violation, of the possessory right. And this is a right, in the enjoyment of which they are entitled to protection according to the doctrine of this court in the cases of Fletcher v. Peck, 6 Cranch 87, and Johnson v. McIntosh, 8 Wheat. 592. By the fourth article of the treaty of Hopewell, as early as the year 1785 (7 U.S. Stat. 18), the boundary line between the Cherokees and the citizens of the United States within the limits of the United States is fixed. The fifth article provides for the removal and punishment of citizens of the United States, or other persons, not being Indians, who shall attempt to settle on the lands so allotted to the Indians; thereby not only surrendering the exclusive possession of these lands to this nation, but providing for the protection and enjoyment of such possession. And it may be remarked, in corroboration of what has been said in a former part of this opinion, that there is here drawn a marked line of distinction between the Indians and citizens of the United States; entirely excluding the former from the character of citizens.

Again, by the treaty of Holston, in 1791 (7 U.S. Stat. 39), the United States purchase a part of the territory of this nation, and a new boundary line is designated, and provision made for having it ascertained and marked. The mere act of purchasing and paying a consideration for these lands, is a recognition of the Indian right. In addition to which, the United States, by the seventh article, solemnly guaranty to the Cherokee nation, all their lands not ceded by that treaty. And by the eighth article, it is declared, that any citizens of the United States, who shall settle upon any of the Cherokee lands, shall forfeit the protection of the United States; and the Cherokees may punish them or not as they shall please. This treaty was made soon after the adoption of the present constitution. And in the last article, it is declared, that it shall take effect, and be obligatory upon the contracting parties, as soon as the same shall have been ratified by the president of the United States, with the advice and consent of the senate; thereby showing the early opinion of the government of the character of the Cherokee nation. The contract is made by way of treaty, and to be ratified in the same manner as all other treaties made with sovereign and independent nations; and which has been the mode of negotiating in all subsequent Indian treaties. And this course was adopted by President Washington, upon great consideration, by and with the previous advice and concurrence of the senate. In his message sent to the senate on that occasion, he states, that the white people had intruded on the Indian lands, as bounded by the treaty of Hopewell, and declares his determination to execute the power intrusted to him by the constitution to carry that into faithful execution; unless a new boundary should be arranged with the Cherokees, embracing the intrusive settlements, and compensating the Cherokees therefor. And he puts to the senate this question: shall the United States stipulate solemnly to guaranty the new boundary which shall be arranged? Upon which, the senate resolve, that in case a new, or other boundary than that stipulated by the treaty of Hopewell shall be concluded with the Cherokee Indians, the senate do advise and consent solemnly to guaranty the same. (1 Executive Journal, 60.) In consequence of which, the treaty of Holston was entered into, containing the guaranty.

Further cessions of land have been made at different times, by the Cherokee nation to the United States, for a consideration paid therefor; and, as the treaties declare, in acknowledgment for the protection of the United States (see treaty of 1798, 7 U.S. Stat. 62), the United States always recognising, in the fullest manner, the Indian right of possession: and in the treaty of the 8th of July, 1817, art, 5 (Ibid. 156), all former treaties are declared to be in full force; and the sanction of the United States is given to the proposition of a portion of the nation, to begin the establishment of fixed laws and a regular government; thereby recognising in the nation a political existence, capable of forming an independent government separate and distinct from, and in no manner whatever under the jurisdiction of, the state of Georgia; and no objection is known to have been made by that state. And again, in 1819 (7 U.S. Stat. 195), another treaty is made, sanctioning and carrying into effect the measures contemplated by the treaty of 1817; beginning with a recital that the greater part of the Cherokees have expressed an earnest desire to remain on this side of the Mississippi, and being desirous, in order to commence those measures which they deem necessary to the civilization and preservation of their nation, that the treaty between the United States and them, of the 8th of July 1817, might, without further delay, be finally adjusted, have offered to make a further cession of land, &c. This cession is accepted, and various stipulations entered into, with a view to their civilization, and the establishment of a regular government, which has since been accomplished. And by the fifth article, it is stipulated, that all white people who have intruded, or who shall thereafter intrude, on the lands reserved for the Cherokee, shall be removed by the United States, and proceeded against according to the provisions of the act of 1802, entitled “an act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers.” (2 U.S. Stat. 139.) By this act, the boundary lines, established by treaty with the various Indian tribes, are required to be ascertained and marked; and among others, that with the Cherokee nation, according to the treaty of the 2d of October 1798.

It may be necessary here briefly to notice some of the provisions of this act of 1802, so far as it goes to protect the rights of property in the Indians; for the purpose of seeing whether there has been any violation of those rights by the state of Georgia, which falls properly under judicial cognisance. By this act, it is made an offence, punishable by fine and imprisonment, for any citizen, or other person resident in the United States, or either of the territorial districts, to cross over or go within the boundary line, to hunt or destroy the game, or drive stock to range or feed on the Indian lands, or to go into any country allotted to the Indians, without a passport, or to commit therein any robbery, larceny, trespass, or other crime, against the person or property of any friendly Indian, which would be punishable, if committed within the jurisdiction of any state, against a citizen of the United States; thereby necessarily implying that the Indian territory secured by treaty was not within the jurisdiction of any state. The act further provides, that when property is taken or destroyed, the offender shall forfeit and pay twice the value of the property so taken or destroyed. And by the fifth section, it is declared, that if any citizen of the United States, or other person, shall make a settlement on any lands belonging, or secured or guarantied, by treaty with the United States, to any Indian tribe; or shall survey or attempt to survey, such lands, or designate any of the boundaries, by marking trees or otherwise; such offender shall forfeit a sum not exceeding $1000 and suffer imprisonment not exceeding twelve months. This act contains various other provisions for the purpose of protecting the Indians in the free and uninterrupted enjoyment of their lands; and authority is given (Section 16) to employ the military force of the United States to apprehend all persons who shall be found in the Indian country, in violation of any of the provisions of the act; and deliver them up to the civil authority, to be proceeded against in due course of law.

It may not be improper here to notice some diversity of opinion that has been entertained with respect to the construction of the 19th section of this act, which declares, that nothing therein contained shall be construed to prevent any trade or intercourse with the Indians, living on lands surrounded by settlements of citizens of the United States, and being within the ordinary jurisdiction of any of the individual states. It is understood, that the state of Georgia contends, that the Cherokee nation come within this section, and are subject to the jurisdiction of that state. Such a construction makes the act inconsistent with itself, and directly repugnant to the various treaties entered into between the United States and the Cherokee Indians. The act recognises and adopts the boundary line as settled by treaty. And by these treaties, which are in full force, the United States solemnly guaranty to the Cherokee nation all their lands, not ceded to the United States; and these lands lie within the chartered limits of Georgia: and this was a subsisting guarantee, under the treaty of 1791, when the act of 1802 was passed. It would require the most unequivocal language to authorize a construction so directly repugnant to these treaties. But this section admits of a plain and obvious interpretation, consistent with other parts of the act, and in harmony with these treaties. The reference undoubtedly is, to that class of Indians which has already been referred to, consisting of the mere remnants of tribes, which have become almost extinct, and who have, in a great measure, lost their original character, and abandoned their usages and customs, and become subject to the laws of the state, although, in many parts of the country, living together, and surrounded by the whites. They cannot be said to have any distinct government of their own, and are within the ordinary jurisdiction and government of the state where they are located.

But such was not the condition and character of the Cherokee nation, in any respect whatever, in the year 1802, nor at any time since. It was a numerous and distinct nation, living under the government of their own laws, usages and customs, and in no sense under the ordinary jurisdiction of the state of Georgia; but under the protection of the United States, with a solemn guarantee by treaty of the exclusive right to the possession of their lands. This guarantee is to the Cherokees is their national capacity. Their land is held in common, and every invasion of their possessory right is an injury done to the nation, and not to any individual. No private or individual suit could be sustained: the injury done being to the nation, the remedy sought must be in the name of the nation. All the rights secured to these Indians, under any treaties made with them, remain unimpaired. These treaties are acknowledged by the United States to be in full force, by the proviso to the 7th section of the act of the 28th of May 1830, which declares, that nothing in this act contained shall be construed as authorizing or directing the violation of any existing treaty between the United States and any Indian tribes.

That the Cherokee nation of Indians have, by virtue of these treaties, an exclusive right of occupancy of the lands in question, and that the United States are bound, under their guarantee, to protect the nation in the enjoyment of such occupancy, cannot, in my judgment, admit of a doubt; and that some of the laws of Georgia set out in the bill are in violation of, and in conflict with, those treaties, and the act of 1802, is, to my mind, equally clear. But a majority of the court having refused the injunction, so that no relief whatever can be granted, it would be a fruitless inquiry for me to go at large into an examination of the extent to which relief might be granted by this court, according to my own view of the case. I, certainly, as before observed, do not claim, as belonging to the judiciary, the exercise of political power; that belongs to another branch of the government. The protection and enforcement of many rights, secured by treaties, most certainly do not belong to the judiciary. It is only where the rights of persons or property are involved, and when such rights can be presented under some judicial form of proceedings, that courts of justice can interpose relief. This court can have no right to pronounce an abstract opinion upon the constitutionality of a state law. Such law must be brought into actual or threatened operation, upon rights properly falling under judicial cognisance, or a remedy is not to be had here.

The laws of Georgia, set out in the bill, if carried fully into operation, go the length of abrogating all the laws of the Cherokees, abolishing their government, and entirely subverting their national character. Although the whole of these laws may be in violation of the treaties made with this nation, it is probable, this court cannot grant relief to the full extent of the complaint. Some of them, however, are so directly at variance with these treaties and the laws of the United States, touching the rights of property secured to them, that I can perceive no objection to the application of judicial relief. The state of Georgia certainly could not have intended these laws as declarations of hostility, or wish their execution of them to be viewed, in any manner whatever, as acts of war; but merely as an assertion of what is claimed as a legal right: and in this light ought they to be considered by this court.

The act of the 2d of December 1830, is entitled “an act to authorize the governor to take possession of the gold and silver and other mines lying and being in that section of the chartered limits of Georgia, commonly called the Cherokee country, and those upon all other unappropriated lands of the state, and for punishing persons who may be found trespassing on the mines.” The preamble to this act asserts the title to these mines to belong to the state of Georgia and by its provisions, $20,000 are appropriated, and placed at the disposal of the governor, to enable him to take possession of those mines; and it is made a crime, punishable by imprisonment in the penitentiary of Georgia, at hard labor, for the Cherokee Indians to work these mines. And the bill alleges, that under the laws of the state in relation to the mines, the governor has stationed at the mines an armed force, who are employed in restraining the complainants in their rights and liberties in regard to their own mines, and in enforcing the laws of Georgia upon them. These can be considered in no other light than as acts of trespass; and may be treated as acts of the state, and not of the individuals employed as the agents. Whoever authorizes or commands an act to be done, may be considered a principal, and held responsible, if he can be made a party to a suit; as the state of Georgia may undoubtedly be. It is not perceived, on what ground, the state can claim a right to the possession and use of these mines. The right of occupancy is secured to the Cherokees by treaty, and the state has not even a reversionary interest in the soil. It is true, that by the compact with Georgia of 1802, the United States have stipulated to extinguish, for the use of the state, the Indian title to the lands within her remaining limits, “as soon as it can be done, peaceably, and upon reasonable terms.” But until this is done, the state can have no claim to the lands.

The very compact is a recognition by the state of a subsisting Indian right; and which may never be extinguished. The United States have not stipulated to extinguish it, until it can be done “peaceably, and upon reasonable terms;” and whatever complaints the state of Georgia may have against the United States for the non-fulfilment of this compact, it cannot affect the right of the Cherokees. They have not stipulated to part with that right; and until they do, their right to the mines stands upon the same footing as the use and enjoyment of any other part of the territory.

Again, by the act of the 21st December 1830, surveyors are authorized to be appointed to enter upon the Cherokee territory, and lay it off into districts and sections, which are to be distributed by lottery among the people of Georgia; reserving to the Indians only the present occupancy of such improvements as the individuals of their nation may now be residing on, with the lots on which such improvements may stand, and even excepting from such reservation, improvements recently made near the gold mines. This is not only repugnant to the treaties with the Cherokees, but directly in violation of the act of congress of 1802; the fifth section of which makes it an offence, punishable with fine and imprisonment, to survey or attempt to survey or designate any of the boundaries, by marking trees or otherwise, of any land belonging to or secured by treaty to any Indian tribe; in the face of which, the law of Georgia authorizes the entry upon, taking possession of, and surveying, and distributing by lottery, these lands guarantied by treaty to the Cherokee nation; and even gives authority to the governor to call out the military force, to protect the surveyors in the discharge of the duty assigned them.

These instances are sufficient to show a direct and palpable infringment of the rights of property secured to the complainants by treaty, and in violation of the act of congress of 1802. These treaties, and this law, are declared by the constitution to be the supreme law of the land; it follows, as matter of course, that the laws of Georgia, so far as they are repugnant to them, must be void and inoperative. And it remains only very briefly to inquire, whether the execution of them can be restrained by injunction according to the doctrine and practice of courts of equity.

According to the view which I have already taken of the case, I must consider the question of right as settled in favor of the complainants. This right rests upon the laws of the United States, and treaties made with the Cherokee nation. The construction of these laws and treaties are pure questions of law, and for the decision of the court. There are no grounds therefore, upon which it can be necessary to send the cause for a trial at law of the right, before awarding an injunction; and the simple question is whether such a case is made out by the bill, as to authorize the granting an injunction? This is a prohibitory writ, to restrain a party from doing a wrong or injury to the rights of another. It is a beneficial process, for the protection of rights; and is favorably viewed by courts of chancery, as its object is to prevent rather redress injuries; and has latterly been more liberally awarded than formerly. 7 Ves. 307. The bill contains charges of numerous trespasses, by entering upon the lands of the complainants, and doing acts greatly to their injury and prejudice, and to the disturbance of the quiet enjoyment of their land, and threatening a total destruction of all their rights. And although it is not according to the course of chancery, to grant injunctions to prevent trespasses, when there is a clear and adequate remedy at law, yet it will be done, when the case is special and peculiar, and when no adequate remedy can be had at law and particularly, when the injury threatens irreparable ruin. 6 Ves. 147 Eden 207. Every man is entitled to be protected in the possession and enjoyment of his property; and the ordinary remedy by action of trespass may generally be sufficient to afford such protection. But where, from the peculiar nature and circumstances of the case, this is not an adequate protection, it is fit case to interpose the preventive process of injunction. This is the principle running through all the cases on this subject, and is founded upon the most wise and just considerations; and this is peculiarly such a case. The complaint is not of a mere private trespass, admitting of compensation in damages; but of injuries which go to the total destruction of the whole right of the complainants; the mischief threatened is great and irreparable. 7 Johns. Ch. 330. It is one of the most beneficial powers of a court of equity to interpose and prevent an injury, before any has actually been suffered; and this is done by a bill, which is sometimes called a bill quia timet. Mitford 120.

The doctrine of this court in the case of Osborn v. United States Bank, 9 Wheat. 738, fully sustains the present application for an injunction. The bill in that case was filed to obtain an injunction against the auditor of the state of Ohio, to restrain him from executing a law of that state, which was alleged to be to the great injury of the bank, and to the destruction of rights conferred by their charter. The only question of doubt entertained by the court in that case was, as to issuing an injunction against an officer of the state, to restrain him from doing an official act enjoined by statute–the state no being made party. But even this was not deemed sufficient to deny the injunction; the court considered, that the Ohio law was made for the avowed purpose of expelling the bank from the state, and depriving it of its chartered privileges, and they say, if the state could have been made a party defendant, it would scarcely be denied, that it would be a strong case for an injunction; that the application was not to interpose the writ of injunction, to protect the bank from a common and casual trespass of an individual, but from a total destruction of its franchise, of its chartered privileges, so far as respected the state of Ohio. In that case, the state could not be made a party according to the 11th amendment of the constitution; the complainants being mere individuals, and not a sovereign state. But according to my view of the present case, the state of Georgia is properly made a party defendant; the complainants being a foreign state. The laws of the state of Georgia in this case go as fully to the total destruction of the complainants’ rights, as did the law of Ohio to the destruction of the rights of the bank in that state; and an injunction is as fit and proper in this case to prevent the injury, as it was in that.

It forms no objection to the issuing of the injunction in this case, that the lands in question do not lie within the jurisdiction of this court. The writ does not operate in rem, but in personam. If the party is within the jurisdiction of the court, it is all that is necessary, to give full effect and operation to the injunction; and it is immaterial, where the subject-matter of the suit, which is only affected consequentially, is situated. This principle is fully recognised by this court, in the case of Massie v. Watts, 6 Cranch 157; where this general rule is laid down, that in a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable, wherever the person may be found, although lands not within the jurisdiction of the court may be affected by the decree. And reference is made to several cases in the English chancery recognizing the same principle. In the case of Penn v. Lord Baltimore, 1 Ves. 444, a specific performance of a contract respecting lands lying in North America was decreed; the chancellor saying, the strict primary decree of a court of equity is in, personam, and may be enforced in all cases when the person is within its jurisdiction.

Upon the whole, I am of opinion: 1. That the Cherokees compose a foreign state, within the sense and meaning of the constitution, and constitute a component party to maintain a suit against the state of Georgia. 2. That the bill presents a case of judicial consideration, arising under the laws of the United States, and treaties made under their authority with the Cherokee nation, and which laws and treaties have been, and are threatened to be still further violated by the laws of the state of Georgia referred to in this opinion. 3. That an injunction is a fit and proper writ to be issued, to prevent the further execution of such laws, and ought, therefore, to be awarded. And I am authorized by my brother Story to say, that he concurs with me in this opinion.

Motion denied.

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Cherokee Nation v. Georgia (partial)

Posted by sethrd23 on November 24, 2009

In Justice Johnson’s dissenting opinion he addresses the idea of the Cherokee Nation being a foreign one, and what the Court has jurisdiction in light of that idea.

Johnson, Justice.–In pursuance of my practice, in giving an opinion on all constitutional questions, I must present my views on this. With the morality of the case, I have no concern; I am called upon to consider it as a legal question.

The object of this bill is to claim the interposition of this court, as the means of preventing the state of Georgia, or the public functionaries of the state of Georgia, from asserting certain rights and powers over the country and people of the Cherokee nation. It is not enough, in order to come before this court for relief, that a case of injury, or of cause to apprehend injury, should be made out. Besides having a cause of action, the complainant must bring himself within that description of parties, who alone are permitted, under the constitution, to bring an original suit to this court. It is essential to such suit, that a state of this Union should be a party; so says the second member of the second section of the third article of the constitution; the other party must, under the control of the eleventh amendment, be another state of the Union, or a foreign state. In this case, the averment is, that the complainant is a foreign state.

Two preliminary questions then present themselves: 1. Is the complainant a foreign state, in the sense of the constitution? 2. Is the case presented in the bill one of the judicial cognisance? Until these questions are disposed of, we have no right to look into the nature of the controversy any further than is necessary to determine them. The first of the questions necessarily resolves itself into two: 1. Are the Cherokees a state? 2. Are they a foreign state?

1. I cannot but think that there are strong reasons for doubting the applicability of the epithet “state,” to a people so low in the grade of organized society as our Indian tribes most generally are. I would not here be understood as speaking of the Cherokees, under their present form of government; which certainly must be classed among the most approved forms of civil government. Whether it can be yet said to have received the consistency which entitles that people to admission into the family of nations is, I conceive, yet to be determined by the executive of these states. Until then, I must think, that we cannot recognise it as an existing state, under any other character than that which it has maintained hitherto as one of the Indian tribes or nations.

The act of the 2d of December 1830, is entitled “an act to authorize the governor to take possession of the gold and silver and other mines lying and being in that section of the chartered limits of Georgia, commonly called the Cherokee country, and those upon all other unappropriated lands of the state, and for punishing persons who may be found trespassing on the mines.” The preamble to this act asserts the title to these mines to belong to the state of Georgia and by its provisions, $20,000 are appropriated, and placed at the disposal of the governor, to enable him to take possession of those mines; and it is made a crime, punishable by imprisonment in the penitentiary of Georgia, at hard labor, for the Cherokee Indians to work these mines. And the bill alleges, that under the laws of the state in relation to the mines, the governor has stationed at the mines an armed force, who are employed in restraining the complainants in their rights and liberties in regard to their own mines, and in enforcing the laws of Georgia upon them. These can be considered in no other light than as acts of trespass; and may be treated as acts of the state, and not of the individuals employed as the agents. Whoever authorizes or commands an act to be done, may be considered a principal, and held responsible, if he can be made a party to a suit; as the state of Georgia may undoubtedly be. It is not perceived, on what ground, the state can claim a right to the possession and use of these mines. The right of occupancy is secured to the Cherokees by treaty, and the state has not even a reversionary interest in the soil. It is true, that by the compact with Georgia of 1802, the United States have stipulated to extinguish, for the use of the state, the Indian title to the lands within her remaining limits, “as soon as it can be done, peaceably, and upon reasonable terms.” But until this is done, the state can have no claim to the lands.

The very compact is a recognition by the state of a subsisting Indian right; and which may never be extinguished. The United States have not stipulated to extinguish it, until it can be done “peaceably, and upon reasonable terms;” and whatever complaints the state of Georgia may have against the United States for the non-fulfilment of this compact, it cannot affect the right of the Cherokees. They have not stipulated to part with that right; and until they do, their right to the mines stands upon the same footing as the use and enjoyment of any other part of the territory.

Again, by the act of the 21st December 1830, surveyors are authorized to be appointed to enter upon the Cherokee territory, and lay it off into districts and sections, which are to be distributed by lottery among the people of Georgia; reserving to the Indians only the present occupancy of such improvements as the individuals of their nation may now be residing on, with the lots on which such improvements may stand, and even excepting from such reservation, improvements recently made near the gold mines. This is not only repugnant to the treaties with the Cherokees, but directly in violation of the act of congress of 1802; the fifth section of which makes it an offence, punishable with fine and imprisonment, to survey or attempt to survey or designate any of the boundaries, by marking trees or otherwise, of any land belonging to or secured by treaty to any Indian tribe; in the face of which, the law of Georgia authorizes the entry upon, taking possession of, and surveying, and distributing by lottery, these lands guarantied by treaty to the Cherokee nation; and even gives authority to the governor to call out the military force, to protect the surveyors in the discharge of the duty assigned them.

These instances are sufficient to show a direct and palpable infringment of the rights of property secured to the complainants by treaty, and in violation of the act of congress of 1802. These treaties, and this law, are declared by the constitution to be the supreme law of the land; it follows, as matter of course, that the laws of Georgia, so far as they are repugnant to them, must be void and inoperative. And it remains only very briefly to inquire, whether the execution of them can be restrained by injunction according to the doctrine and practice of courts of equity.

According to the view which I have already taken of the case, I must consider the question of right as settled in favor of the complainants. This right rests upon the laws of the United States, and treaties made with the Cherokee nation. The construction of these laws and treaties are pure questions of law, and for the decision of the court. There are no grounds therefore, upon which it can be necessary to send the cause for a trial at law of the right, before awarding an injunction; and the simple question is whether such a case is made out by the bill, as to authorize the granting an injunction? This is a prohibitory writ, to restrain a party from doing a wrong or injury to the rights of another. It is a beneficial process, for the protection of rights; and is favorably viewed by courts of chancery, as its object is to prevent rather redress injuries; and has latterly been more liberally awarded than formerly. 7 Ves. 307. The bill contains charges of numerous trespasses, by entering upon the lands of the complainants, and doing acts greatly to their injury and prejudice, and to the disturbance of the quiet enjoyment of their land, and threatening a total destruction of all their rights. And although it is not according to the course of chancery, to grant injunctions to prevent trespasses, when there is a clear and adequate remedy at law, yet it will be done, when the case is special and peculiar, and when no adequate remedy can be had at law and particularly, when the injury threatens irreparable ruin. 6 Ves. 147 Eden 207. Every man is entitled to be protected in the possession and enjoyment of his property; and the ordinary remedy by action of trespass may generally be sufficient to afford such protection. But where, from the peculiar nature and circumstances of the case, this is not an adequate protection, it is fit case to interpose the preventive process of injunction. This is the principle running through all the cases on this subject, and is founded upon the most wise and just considerations; and this is peculiarly such a case. The complaint is not of a mere private trespass, admitting of compensation in damages; but of injuries which go to the total destruction of the whole right of the complainants; the mischief threatened is great and irreparable. 7 Johns. Ch. 330. It is one of the most beneficial powers of a court of equity to interpose and prevent an injury, before any has actually been suffered; and this is done by a bill, which is sometimes called a bill quia timet. Mitford 120.

The doctrine of this court in the case of Osborn v. United States Bank, 9 Wheat. 738, fully sustains the present application for an injunction. The bill in that case was filed to obtain an injunction against the auditor of the state of Ohio, to restrain him from executing a law of that state, which was alleged to be to the great injury of the bank, and to the destruction of rights conferred by their charter. The only question of doubt entertained by the court in that case was, as to issuing an injunction against an officer of the state, to restrain him from doing an official act enjoined by statute–the state no being made party. But even this was not deemed sufficient to deny the injunction; the court considered, that the Ohio law was made for the avowed purpose of expelling the bank from the state, and depriving it of its chartered privileges, and they say, if the state could have been made a party defendant, it would scarcely be denied, that it would be a strong case for an injunction; that the application was not to interpose the writ of injunction, to protect the bank from a common and casual trespass of an individual, but from a total destruction of its franchise, of its chartered privileges, so far as respected the state of Ohio. In that case, the state could not be made a party according to the 11th amendment of the constitution; the complainants being mere individuals, and not a sovereign state. But according to my view of the present case, the state of Georgia is properly made a party defendant; the complainants being a foreign state. The laws of the state of Georgia in this case go as fully to the total destruction of the complainants’ rights, as did the law of Ohio to the destruction of the rights of the bank in that state; and an injunction is as fit and proper in this case to prevent the injury, as it was in that.

It forms no objection to the issuing of the injunction in this case, that the lands in question do not lie within the jurisdiction of this court. The writ does not operate in rem, but in personam. If the party is within the jurisdiction of the court, it is all that is necessary, to give full effect and operation to the injunction; and it is immaterial, where the subject-matter of the suit, which is only affected consequentially, is situated. This principle is fully recognised by this court, in the case of Massie v. Watts, 6 Cranch 157; where this general rule is laid down, that in a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable, wherever the person may be found, although lands not within the jurisdiction of the court may be affected by the decree. And reference is made to several cases in the English chancery recognizing the same principle. In the case of Penn v. Lord Baltimore, 1 Ves. 444, a specific performance of a contract respecting lands lying in North America was decreed; the chancellor saying, the strict primary decree of a court of equity is in, personam, and may be enforced in all cases when the person is within its jurisdiction.

Upon the whole, I am of opinion: 1. That the Cherokees compose a foreign state, within the sense and meaning of the constitution, and constitute a component party to maintain a suit against the state of Georgia. 2. That the bill presents a case of judicial consideration, arising under the laws of the United States, and treaties made under their authority with the Cherokee nation, and which laws and treaties have been, and are threatened to be still further violated by the laws of the state of Georgia referred to in this opinion. 3. That an injunction is a fit and proper writ to be issued, to prevent the further execution of such laws, and ought, therefore, to be awarded. And I am authorized by my brother Story to say, that he concurs with me in this opinion.

Motion denied.

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“The Liberator” -first issue

Posted by sethrd23 on November 24, 2009

This periodical, issued in Boston, decried slavery as a national sin and promoted the immediate, unconditional emancipation of slaves in the United States.

Liberator Editorial, First Issue (1831)

From: Writings and Speeches of William Lloyd Garrison, p. 62-64

Editorial from First Issue of the Liberator, William Lloyd Garrison

COMMENCEMENT OF THE LIBERATOR.

In the month of August, I issued proposals for publishing ‘The Liberator’ in Washington city; but the enterprise, though hailed approvingly in different sections of the country, was palsied by public indifference. Since that time, the removal of the ‘Genius of Universal Emancipation’ to the Seat of Government has rendered less imperious the establishment of a similar periodical in that quarter.

During my recent tour for the purpose of exciting the minds of the people by a series of discourses on the subject of slavery, every place that I visited gave fresh evidence of the fact, that a greater revolution in public sentiment was to be effected in the free States–and particularly in New England–than at the South. I found contempt more bitter, opposition more active, detraction more relentless, prejudice more stubborn, and apathy more frozen, than among slave owners themselves. Of course, there were individual exceptions to the contrary. This state of things afflicted, but did not dishearten me. I determined, at every hazard, to lift up the standard of emancipation in the eyes of the nation, within sight of Bunker Hill, and in the birth-place of liberty. That standard is now unfurled; and long may it float, unhurt by the spoliations of time or the missiles of a desperate foe; yea, till every chain be broken, and every bondman set free! Let Southern oppressors tremble; let their secret abettors tremble; let their Northern apologists tremble; let all the enemies of the persecuted blacks tremble.

Assenting to the ‘self-evident truths’ maintained in the American Declaration of Independence, ‘that all men are created equal, and endowed by their Creator with certain inalienable rights–among which are life, liberty, and the pursuit of happiness,’ I shall strenuously contend for the immediate enfranchisement of our slave population. In Park Street Church, on the Fourth of July, 1829, in an address on slavery, I unreflectingly assented to the popular but pernicious doctrine of gradual abolition. I seize this opportunity to make a full and unequivocal recantation, and thus publicly to ask pardon of my God, of my country, and of my brethren, the poor slaves, for having uttered a sentiment so full of timidity, injustice and absurdity. A similar recantation, from my pen, was published in the ‘Genius of Universal Emancipation,’ at Baltimore, in September, 1829. My conscience is now satisfied.

I am aware, that many object to the severity of my language; but is there not cause for severity? I will be as harsh as truth, and as uncompromising as justice. On this subject, I do not wish to think, or speak, or write, with moderation. No! no! Tell a man, whose house is on fire, to give a moderate alarm; tell him to moderately rescue his wife from the hands of the ravisher; tell the mother to gradually extricate her babe from the fire into which it has fallen; but urge me not to use moderation in a cause like the present! I am in earnest. I will not equivocate–I will not excuse–I will not retreat a single inch–and I will be heard. The apathy of the people is enough to make every statue leap from its pedestal, and to hasten the resurrection of the dead.

It is pretended, that I am retarding the cause of emancipation by the coarseness of my invective, and the precipitancy of my measures. The charge is not true. On this question, my influence, humble as it is, is felt at this moment to a considerable extent, and shall be felt in coming years–not perniciously, but beneficially–not as a curse, but as a blessing; and posterity will bear testimony that I was right. I desire to thank God, that he enables me to disregard ‘the fear of man which bringeth a snare,’ and to speak his truth in its simplicity and power. And here I close with this fresh dedication:–

‘Oppression! I have seen thee, face to face, And met thy cruel eye and cloudy brow; But thy soul-withering glance I fear not now–For dread to prouder feelings doth give place, Of deep abhorrence! Scorning the disgrace Of slavish knees that at thy footstool bow, I also kneel–but with far other vow Do hail thee and thy herd of hirelings base:–I swear, while life-blood warms my throbbing veins, Still to oppose and thwart, with heart and hand, Thy brutalizing sway–till Africa’s chains Are burst, and Freedom rules the rescued land, Trampling Oppression and his iron rod:–Such is the vow I take–so help me, God!’

Boston, January 1, 1831.

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Democracy in America – Tocqueville (excerpt)

Posted by sethrd23 on November 24, 2009

In his book observations made during a working tour of the United States to study the penal system.

Democracy in America (1835)

Alexis de Tocqueville

From: Democracy in America, Vol I and II, Alexis de Tocqueville, Schocken Books, 1961

DEMOCRACY IN AMERICA, ALEXIS DE TOCQUEVILLE

INTRODUCTORY CHAPTER

Amongst the novel objects that attracted my attention during my stay in the United States, nothing struck me more forcibly than the general equality of conditions. I readily discovered the prodigious influence which this primary fact exercises on the whole course of society, by giving a certain direction to public opinion, and a certain tenor to the laws; by imparting new maxims to the governing powers, and peculiar habits to the governed.

I speedily perceived that the influence of this fact extends far beyond the political character and the laws of the country, and that it has no less empire over civil society than over the Government; it creates opinions, engenders sentiments, suggests the ordinary practices of life, and modifies whatever it does not produce.

The more I advanced in the study of American society, the more I perceived that the equality of conditions is the fundamental fact from which all others seem to be derived, and the central point at which all my observations constantly terminated.

I then turned my thoughts to our own hemisphere, where I imagined that I discerned something analogous to the spectacle which the New World presented to me. I observed that the equality of conditions is daily progressing towards those extreme limits which it seems to have reached in the United States; and that the democracy which governs the American communities appears to be rapidly rising into power in Europe.

I hence conceived the idea of the book which is now before the reader.

It is evident to all alike that a great democratic revolution is going on amongst us; but there are two opinions as to its nature and consequences. To some it appears to be a novel accident, which as such may still be checked; to others, it seems irresistible, because it is the most uniform, the most ancient, and the most permanent tendency which is to be found in history.

Let us recollect the situation of France seven hundred years ago, when the territory was divided amongst a small number of families, who were the owners of the soil and the rulers of the inhabitants; the right of governing descended with the family inheritance from generation to generation; force was the only means by which man could act on man; and landed property was the sole source of power.

Soon, however, the political power of the clergy was founded, and began to exert itself: the clergy opened its ranks to all classes, to the poor and the rich, the villain and the lord; equality penetrated into the Government through the Church, and the being who as a serf must have vegetated in perpetual bondage, took his place as a priest in the midst of nobles, and not unfrequently above the heads of kings.

The different relations of men became more complicated and more numerous as society gradually became more stable and more civilized. Thence the want of civil laws was felt; and the order of legal functionaries soon rose from the obscurity of the tribunals and their dusty chambers, to appear at the court of the monarch, by the side of the feudal barons in their ermine and their mail.

Whilst the kings were ruining themselves by their great enterprises, and the nobles exhausting their resources by private wars, the lower orders were enriching themselves by commerce. The influence of money began to be perceptible in State affairs. The transactions of business opened a new road to power, and the financier rose to a station of political influence in which he was at once flattered and despised.

Gradually the spread of mental acquirements, and the increasing taste for literature and art, opened chances of success to talent; science became a means of government, intelligence led to social power, and the man of letters took a part in the affairs of the State.

The value attached to the privileges of birth decreased in the exact proportion in which new paths were struck out to advancement. In the eleventh century nobility was beyond all price; in the thirteenth it might be purchased; it was conferred for the first time in 1270; and equality was thus introduced into the Government by the aristocracy itself.

In the course of these seven hundred years, it sometimes happened that in order to resist the authority of the Crown, or to diminish the power of their rivals, the nobles granted a certain share of political rights to the people. Or, more frequently, the king permitted the lower orders to enjoy a degree of power, with the intention of repressing the aristocracy.

In France the kings have always been the most active and the most constant of levellers. When they were strong and ambitious, they spared no pains to raise the people to the level of the nobles; when they were temperate or weak, they allowed the people to rise above themselves. Some assisted the democracy by their talents, others by their vices. Louis XI. and Louis XIV. reduced every rank beneath the throne to the same subjection; Louis XV. descended, himself and all his Court, into the dust.

As soon as land was held on any other than a feudal tenure, and personal property began in its turn to confer influence and power, every improvement which was introduced in commerce or manufacture was a fresh element of the equality of conditions. Henceforward every new discovery, every new want which it engendered, and every new desire which craved satisfaction, was a step towards the universal level. The taste for luxury, the love of war, the sway of fashion, and the most superficial as well as the deepest passions of the human heart, co-operated to enrich the poor and to impoverish the rich.

From the time when the exercise of the intellect became the source of strength and of wealth, it is impossible not to consider every addition to science, every fresh truth, and every new idea as a germ of power placed within the reach of the people. Poetry, eloquence, and memory, the grace of wit, the glow of imagination, the depth of thought, and all the gifts which are bestowed by Providence with an equal hand, turned to the advantage of the democracy; and even when they were in the possession of its adversaries, they still served its cause by throwing into relief the natural greatness of man; its conquests spread, therefore, with those of civilization and knowledge; and literature became an arsenal, where the poorest and the weakest could always find weapons to their hand.

In perusing the pages of our history, we shall scarcely meet with a single great event, in the lapse of seven hundred years, which has not turned to the advantage of equality.

The Crusades and the wars of the English decimated the nobles and divided their possessions: the erection of communities introduced an element of democratic liberty into the bosom of feudal monarchy; the invention of fire-arms equalized the villain and the noble on the field of battle; printing opened the same resources to the minds of all classes; the post was organized so as to bring the same information to the door of the poor man’s cottage, and to the gate of the palace; and Protestantism proclaimed that all men are alike able to find the road to heaven. The discovery of America offered a thousand new paths to fortune and placed riches and power within the reach of the adventurous and the obscure.

If we examine what has happened in France at intervals of fifty years, beginning with the eleventh century, we shall invariably perceive that a twofold revolution has taken place in the state of society. The noble has gone down on the social ladder, and the roturier has gone up; the one descends as the other rises. Every half-century brings them nearer to each other, and they will very shortly meet.

Nor is this phaenomenon at all peculiar to France. Whithersoever we turn our eyes we shall witness the same continual revolution throughout the whole of Christendom.

The various occurrences of national existence have everywhere turned to the advantage of democracy; all men have aided it by their exertions: those who have intentionally laboured in its cause, and those who have served it unwittingly; those who have fought for it and those who have declared themselves its opponents,–have all been driven along in the same track, have all laboured to one end, some ignorantly and some unwillingly; all have been blind instruments in the hands of God.

The gradual development of the equality of conditions is therefore a providential fact, and it possesses all the characteristics of a Divine decree: it is universal, it is durable, it constantly eludes all human interference, and all events as well as all men contribute to its progress.

Would it, then, be wise to imagine that a social impulse which dates from so far back, can be checked by the efforts of a generation? Is it credible that the democracy which has annihilated the feudal system, and vanquished kings, will respect the citizen and the capitalist? Will it stop now that it is grown so strong, and its adversaries so weak?

None can say which way we are going, for all terms of comparison are wanting: the equality of conditions is more complete in the Christian countries of the present day, than it has been at any time, or in any part of the world; so that the extent of what already exists prevents us from foreseeing what may be yet to come.

The whole book which is here offered to the public has been written under the impression of a kind of religious dread produced in the author’s mind by the contemplation of so irresistible a revolution, which has advanced for centuries in spite of such amazing obstacles, and which is still proceeding in the midst of the ruins it has made.

It is not necessary that God himself should speak in order to disclose to us the unquestionable signs of his will; we can discern them in the habitual course of nature, and in the invariable tendency of events; I know, without a special revelation, that the planets move in the orbits traced by the Creator’s finger.

If the men of our time were led by attentive observation, and by sincere reflection, to acknowledge that the gradual and progressive development of social equality is at once the past and future of their history, this solitary truth would confer the sacred character of a Divine decree upon the change. To attempt to check democracy would be in that case to resist the will of God; and the nations would then be constrained to make the best of the social lot awarded to them by Providence.

The Christian nations of our age seem to me to present a most alarming spectacle; the impulse which is bearing them along is so strong that it cannot be stopped, but it is not yet so rapid that it cannot be guided: their fate is in their hands; yet a little while and it may be so no longer.

The first duty which is at this time imposed upon those who direct our affairs is to educate the democracy; to warm its faith, if that be possible; to purify its morals; to direct its energies; to substitute a knowledge of business for its inexperience, and an acquaintance with its true interests for its blind propensities; to adapt its government to time and place, and to modify it in compliance with the occurrences and the actors of the age.

A new science of politics is indispensable to a new world.

This, however, is what we think of least; launched in the middle of a rapid stream, we obstinately fix our eyes on the ruins which may still be descried upon the shore we have left, whilst the current sweeps us along, and drives us backwards toward the gulf.

In no country in Europe has the great social revolution which I have been describing made such rapid progress as in France; but it has always been borne on by chance. The heads of the State have never had any forethought for its exigencies, and its victories have been obtained without their consent or without their knowledge. The most powerful, the most intelligent, and the most moral classes of the nation have never attempted to connect themselves with it in order to guide it. The people has consequently been abandoned to its wild propensities, and it has grown up like those outcasts who receive their education in the public streets, and who are unacquainted with aught but the vices and wretchedness of society. The existence of a democracy was seemingly unknown, when on a sudden it took possession of the supreme power. Everything was then submitted to its caprices; it was worshipped as the idol of strength; until, when it was enfeebled by its own excesses, the legislator conceived the rash project of annihilating its power, instead of instructing it and correcting its vices; no attempt was made to fit it to govern, but all were bent on excluding it from the government,

The consequence of this has been that the democratic revolution has been effected only in the material parts of society, without that concomitant change in laws, ideas, customs and manners which was necessary to render such a revolution beneficial. We have gotten a democracy, but without the conditions which lessen its vices and render its natural advantages more prominent; and although we already perceive the evils it brings, we are ignorant of the benefits it may confer.

While the power of the Crown, supported by the aristocracy, peaceably governed the nations of Europe, society possessed, in the midst of its wretchedness, several different advantages which can now scarcely be appreciated or conceived.

The power of a part of his subjects was an insurmountable barrier to the tyranny of the prince; and the monarch, who felt the almost divine character which he enjoyed in the eyes of the multitude, derived a motive for the just use of his power from the respect which be inspired.

High as they were placed above the people, the nobles could not but take that calm and benevolent interest in its fate which the shepherd feels towards his flock; and without acknowledging the poor as their equals, they watched over the destiny of those whose welfare Providence had entrusted to their care.

The people never having conceived the idea of a social condition different from its own, and entertaining no expectation of ever ranking with its chiefs, received benefits from them without discussing their rights. It grew attached to them when they were clement and just, and it submitted without resistance or servility to their exactions, as to the inevitable visitations of the arm of God. Custom, and the manners of the time, had moreover created a species of law in the midst of violence, and established certain limits to oppression.

As the noble never suspected that any one would attempt to deprive him of the privileges which he believed to be legitimate, and as the serf looked upon his own inferiority as a consequence of the immutable order of nature, it is easy to imagine that a mutual exchange of goodwill took place between two classes so differently gifted by fate. Inequality and wretchedness were then to be found in society; but the souls of neither rank of men were degraded.

Men are not corrupted by the exercise of power or debased by the habit of obedience; but by the exercise of a power which they believe to be illegal and by obedience to a rule which they consider to be usurped and oppressive.

On one side was wealth, strength, and leisure, accompanied by the refinements of luxury, the elegance of taste, the pleasures of wit, and the religion of art. On the other was labour, and a rude ignorance; but in the midst of this coarse and ignorant multitude, it was not uncommon to meet with energetic passions, generous sentiments, profound religious convictions, and independent virtues.

The body of a State thus organized might boast of its stability, its power, and, above all, of its glory.

But the scene is now changed; and gradually the two ranks mingle; the divisions which once severed mankind are lowered; property is divided, power is held in common, the light of intelligence spreads, and the capacities of all classes are equally cultivated; the State becomes democratic, and the empire of democracy is slowly and peaceably introduced into the institutions and the manners of the nation.

I can conceive a society in which all men would profess an equal attachment and respect for the laws of which they are the common authors; in which the authority of the State would be respected as necessary, though not as divine; and the loyalty of the subject to the chief magistrate would not be a passion, but a quiet and rational persuasion. Every individual being in the possession of rights which he is sure to retain, a kind of manly reliance, and reciprocal courtesy would arise between all classes, alike removed from pride and meanness.

The people, well acquainted with its true interests, would allow, that in order to profit by the advantages of society, it is necessary to satisfy its demands. In this state of things, the voluntary association of the citizens might supply the individual exertions of the nobles, and the community would be alike protected from anarchy and from oppression.

I admit that, in a democratic State thus constituted, society will not be stationary; but the impulses of the social body may be regulated and directed forwards; if there be less splendour than in the halls of an aristocracy, the contrast of misery will be less frequent also; the pleasures of enjoyment may be less excessive, but those of comfort will be more general; the sciences may be less perfectly cultivated, but ignorance will be less common; the impetuosity of the feelings will be repressed, and the habits of the nation softened; there will be more vices and fewer crimes.

In the absence of enthusiasm and of an ardent faith, great sacrifices may be obtained from the members of a commonwealth by an appeal to their understandings and their experience; each individual will feel the same necessity for uniting with his fellow-citizens to protect his own weakness; and as he knows that if they are to assist, he must co-operate, he will readily perceive that his personal interest is identified with the interest of the community.

The nation, taken as a whole, will be less brilliant, less glorious, and perhaps less strong; but the majority of the citizens will enjoy a greater degree of prosperity, and the people will remain quiet, not because it despairs of amelioration, but because it is conscious of the advantages of its condition.

If all the consequences of this state of things were not good or useful, society would at least have appropriated all such as were useful and good; and having once and forever renounced the social advantages of aristocracy, mankind would enter into possession of all the benefits which democracy can afford.

But here it may be asked what we have adopted in the place of those institutions, those ideas, and those customs of our forefathers which we have abandoned.

The spell of royalty is broken, but it has not been succeeded by the majesty of the laws; the people has learned to despise all authority, but fear now extorts a larger tribute of obedience than that which was formerly paid by reverence and by love.

I perceive that we have destroyed those independent beings which were able to cope with tyranny single-handed; but it is the Government that has inherited the privileges of which families, corporations, and individuals have been deprived; the weakness of the whole community has therefore succeeded that influence of a small body of citizens, which, if it was sometimes oppressive, was often conservative.

The division of property has lessened the distance which separated the rich from the poor; but it would seem that the nearer they draw to each other, the greater is their mutual hatred, and the more vehement the envy and the dread with which they resist each other’s claims to power; the notion of Right is alike insensible to both classes, and Force affords to both the only argument for the present, and the only guarantee for the future.

The poor man retains the prejudices of his forefathers without their faith, and their ignorance without their virtues; he has adopted the doctrine of self-interest as the rule of his actions, without understanding the science which controls it, and his egotism is no less blind than his devotedness was formerly.

If society is tranquil, it is not because it relies upon its strength and its well-being, but because it knows its weakness and its infirmities; a single effort may cost it its life; everybody feels the evil, but no one has courage or energy enough to seek the cure; the desires, the regret, the sorrows, and the joys of the time produce nothing that is visible or permanent, like the passions of old men which terminate in impotence.

We have, then, abandoned whatever advantages the old state of things afforded, without receiving any compensation from our present condition; we have destroyed an aristocracy, and we seem inclined to survey its ruins with complacency, and to fix our abode in the midst of them.

The phaenomena which the intellectual world presents are not less deplorable. The democracy of France, checked in its course or abandoned to its lawless passions, has overthrown whatever crossed its path, and has shaken all that it has not destroyed. Its empire on society has not been gradually introduced, or peaceably established, but it has constantly advanced in the midst of disorder and the agitation of a conflict. In the heat of the struggle each partisan is hurried beyond the limits of his opinions by the opinions and the excesses of his opponents, until he loses sight of the end of his exertions, and holds a language which disguises his real sentiments or secret instincts. Hence arises the strange confusion which we are witnessing.

I cannot recall to my mind a passage in history more worthy of sorrow and of pity than the scenes which are happening under our eyes; it is as if the natural bond which unites the opinions of man to his tastes, and his actions to his principles, was now broken; the sympathy which has always been acknowledged between the feelings and the ideas of mankind appears to be dissolved, and all the laws of moral analogy to be abolished.

Zealous Christians may be found amongst us, whose minds are nurtured in the love and knowledge of a future life, and who readily espouse the cause of human liberty, as the source of all moral greatness. Christianity, which has declared that all men are equal in the sight of God, will not refuse to acknowledge that all citizens are equal in the eye of the law. But, by a singular concourse of events, religion is entangled in those institutions which democracy assails, and it is not unfrequently brought to reject the equality it loves, and to curse that cause of liberty as a foe, which it might hallow by its alliance.

By the side of these religious men I discern others whose looks are turned to the earth more than to Heaven; they are the partisans of liberty, not only as the source of the noblest virtues, but more especially as the root of all solid advantages; and they sincerely desire to extend its sway, and to impart its blessings to mankind. It is natural that they should hasten to invoke the assistance of religion, for they must know that liberty cannot be established without morality, nor morality without faith; but they have seen religion in the ranks of their adversaries, and they inquire no further; some of them attack it openly, and the remainder are afraid to defend it.

In former ages slavery has been advocated by the venal and slavish-minded, whilst the independent and the warm-hearted were struggling without hope to save the liberties of mankind. But men of high and generous characters are now to be met with, whose opinions are at variance with their inclinations, and who praise that servility which they have themselves never known. Others, on the contrary, speak in the name of liberty, as if they were able to feel its sanctity and its majesty, and loudly claim for humanity those rights which they have always disowned.

There are virtuous and peaceful individuals whose pure morality, quiet habits, affluence, and talents fit them to be the leaders of the surrounding population; their love of their country is sincere, and they are prepared to make the greatest sacrifices to its welfare, but they confound the abuses of civilization with its benefits, and the idea of evil is inseparable in their minds from that of novelty.

Not far from this class is another party, whose object is to materialize mankind, to hit upon what is expedient without heeding what is just, to acquire knowledge without faith, and prosperity apart from virtue; assuming the title of the champions of modern civilization, and placing themselves in a station which they usurp with insolence, and from which they are driven by their own unworthiness.

Where are we then?

The religionists are the enemies of liberty, and the friends of liberty attack religion; the high-minded and the noble advocate subjection, and the meanest and most servile minds preach independence; honest and enlightened citizens are opposed to all progress, whilst men without patriotism and without principles are the apostles of civilization and of intelligence.

Has such been the fate of the centuries which have preceded our own? and has man always inhabited a world, like the present, where nothing is linked together, where virtue is without genius, and genius without honour; where the love of order is confounded with a taste for oppression, and the holy rites of freedom with a contempt of law; where the light thrown by conscience on human actions is dim, and where nothing seems to be any longer forbidden or allowed, honourable or shameful, false or true?

I cannot, however, believe that the Creator made man to leave him in an endless struggle with the intellectual miseries which surround us: God destines a calmer and a more certain future to the communities of Europe; I am unacquainted with his designs, but I shall not cease to believe in them because I cannot fathom them, and I had rather mistrust my own capacity than his justice.

There is a country in the world where the great revolution which I am speaking of seems nearly to have reached its natural limits; it has been effected with ease and simplicity, say rather that this country has attained the con sequences of the democratic revolution which we are undergoing, without having experienced the revolution itself.

The emigrants who fixed themselves on the shores of America in the beginning of the seventeenth century, severed the democratic principle from all the principles which repressed it in the old communities of Europe, and transplanted it unalloyed to the New World. It has there been allowed to spread in perfect freedom, and to put forth its consequences in the laws by influencing the manners of the country.

It appears to me beyond a doubt that sooner or later we shall arrive, like the Americans, at an almost complete equality of conditions. But I do not conclude from this, that we shall ever be necessarily led to draw the same political consequences which the Americans have derived from a similar social organization. I am far from supposing that they have chosen the only form of government which a democracy may adopt; but the identity of the efficient cause of laws and manners in the two countries is sufficient to account for the immense interest we have in becoming acquainted with its effects in each of them.

It is not, then, merely to satisfy a legitimate curiosity that I have examined America; my wish has been to find instruction by which we may ourselves profit. Whoever should imagine that I have intended to write a panegyric would be strangely mistaken, and on reading this book he will perceive that such was not my design: nor has it been my object to advocate any form of government in particular, for I am of opinion that absolute excellence is rarely to be found in any legislation; I have not even affected to discuss whether the social revolution, which I believe to be irresistible, is advantageous or prejudicial to mankind; I have acknowledged this revolution as a fact already accomplished or on the eve of its accomplishment; and I have selected the nation, from amongst those which have undergone it, in which its development has been the most peaceful and the most complete, in order to discern its, natural consequences, and, if it be possible, to distinguish the means by which it may be rendered profitable. I confess that in America I saw more than America; I sought the image of democracy itself, with its inclinations, its character, its prejudices, and its passions, in order to learn what we have to fear or to hope from its progress.

In the first part of this work I have attempted to show the tendency given to the laws by the democracy of America, which is abandoned almost without restraint to its instinctive propensities; and to exhibit the course it prescribes to the Government and the influence it exercises on affairs. I have sought to discover the evils and the advantages which it produces. I have examined the precautions used by the Americans to direct it, as well as those which they have not adopted, and I have undertaken to point out the causes which enable it to govern society. I do not know whether I have succeeded in making known what I saw in America, but I am certain that such has been my sincere desire, and that I have never, knowingly, moulded facts to ideas, instead of ideas to facts.

Whenever a point could be established by the aid of written documents, I have had recourse to the original text, and to the most authentic and approved works. I have cited my authorities in the notes, and any one may refer to them. Whenever an opinion, a political custom, or a remark on the manners of the country was concerned, I endeavoured to consult the most enlightened men I met with. If the point in question was important or doubtful, I was not satisfied with one testimony, but I formed my opinion on the evidence of several witnesses. Here the reader must necessarily believe me upon my word. I could frequently have quoted names which are either known to him, or which deserve to be so, in proof of what I advance; but I have carefully abstained from this practice. A stranger frequently hears important truths at the fire-side of his host, which the latter would perhaps conceal from the ear of friendship; he consoles himself with his guest for the silence to which he is restricted, and the shortness of the traveller’s stay takes away all fear of his indiscretion. I carefully noted every conversation of this nature as soon as it occurred, but these notes will never leave my writing-case; I had rather injure the success of my statements than add my name to the list of those strangers who repay the generous hospitality they have received by subsequent chagrin and annoyance.

I am aware that, notwithstanding my care, nothing will be easier than to criticize this book, if any one ever chooses to criticize it.

Those readers who may examine it closely will discover the fundamental idea which connects the several parts together. But the diversity of the subjects I have had to treat is exceedingly great, and it will not be difficult to oppose an isolated fact to the body of facts which I quote, or an isolated idea to the body of ideas I put forth. I hope to be read in the spirit which has guided my labours, and that my book may be judged by the general impression it leaves, as I have formed my own judgment not on any single reason, but upon the mass of evidence.

It must not be forgotten that the author who wishes to be understood is obliged to push all his ideas to their utmost theoretical consequences, and often to the verge of what is false or impracticable; for if it be necessary sometimes to quit the rules of logic in active life, such is not the case in discourse, and a man finds that almost as many difficulties spring from inconsistency of language, as usually arise from consistency of conduct.

I conclude by painting out myself what many readers will consider the principal defect of the work. This book is written to favour no particular views, and in composing it I have entertained no design of serving or attacking any party: I have undertaken not to see differently, but to look further than parties, and whilst they are busied for the morrow, I have turned my thoughts to the Future.

CHAPTER IV.

The Principle of the Sovereignty of the People in America.

It predominates over the whole of society in America.–Application made of this principle by the Americans even before their Revolution.–Development given to it by that Revolution.–Gradual and irresistible extension of the elective qualification.

Whenever the political laws of the United States are to be discussed, it is with the doctrine of the sovereignty of the people that we must begin.

The principle of the sovereignty of the people, which is to be found, more or less, at the bottom of almost all human institutions, generally remains concealed from view. It is obeyed without being recognised, or if for a moment it be brought to light, it is hastily cast back into the gloom of the sanctuary.

“The will of the nation” is one of those expressions which have been most profusely abused by the wily and the despotic of every age. To the eyes of some it has been represented by the venal suffrages of a few of the satellites of power; to others, by the votes of a timid or an interested minority; and some have even discovered it in the silence of a people, on the supposition that the fact of submission established the right of command.

In America, the principle of the sovereignty of the people is not either barren or concealed, as it is with some other nations; it is recognised by the customs and proclaimed by the laws; it spreads freely, and arrives without impediment at its most remote consequences. If there be a country in the world where the doctrine of the sovereignty of the people can be fairly appreciated, where it can be studied in its application to the affairs of society, and where its dangers and its advantages may be foreseen, that country is assuredly America.

I have already observed that, from their origin, the sovereignty of the people was the fundamental principle of the greater number of British colonies in America. It was far, however, from then exercising as much influence on the government of society as it now does. Two obstacles, the one external, the other internal, checked its invasive progress.

It could not ostensibly disclose itself in the laws of colonies which were still constrained to obey the mothercountry: it was therefore obliged to spread secretly, and to gain ground in the provincial assemblies, and especially in the townships.

American society was not yet prepared to adopt it with all its consequences. The intelligence of New England, and the wealth of the country to the south of the Hudson, (as I have shown in the preceding chapter,) long exercised a sort of aristocratic influence, which tended to retain the exercise of social authority in the hands of a few. The public functionaries were not universally elected, and the citizens were not all of them electors. The electoral franchise was everywhere placed within certain limits, and made dependent on a certain qualification, which was exceedingly low in the North, and more considerable in the South.

The American revolution broke out, and the doctrine of the sovereignty of the people, which had been nurtured in the townships and municipalities, took possession of the State: every class was enlisted in its cause; battles were fought, and victories obtained for it; until it became the law of laws.

A no less rapid change was effected in the interior of society, where the law of descent completed the abolition of local influences.

At the very time when this consequence of the laws and of the revolution was apparent to every eye, victory was irrevocably pronounced in favour of the democratic cause. All power was, in fact, in its hands, and resistance was no longer possible. The higher orders submitted without a murmur and without a struggle to an evil which was thenceforth inevitable. The ordinary fate of falling powers awaited them; each of their several members followed his own interest; and as it was impossible to wring the power from the hands of a people which they did not detest sufficiently to brave, their only aim was to secure its good-will at any price. The most democratic laws were consequently voted by the very men whose interests they impaired: and thus, although the higher classes did not excite the passions of the people against their order, they accelerated the triumph of the new state of things; so that, by a singular change, the democratic impulse was found to be most irresistible in the very States where the aristocracy had the firmest hold.

The State of Maryland, which had been founded by men of rank, was the first to proclaim universal suffrage, and to introduce the most democratic forms into the conduct of its government.

When a nation modifies the elective qualification, it may easily be foreseen that sooner or later that qualification will be entirely abolished. There is no more invariable rule in the history of society: the further electoral rights are extended, the greater is the need of extending them; for after each concession the strength of the democracy increases, and its demands increase with its strength. The ambition of those who are below the appointed rate is irritated in exact proportion to the great number of those who are above it. The exception at last becomes the rule, concession follows concession, and no stop can be made short of universal suffrage.

At the present day the principle of the sovereignty of the people has acquired, in the United States, all the practical development which the imagination can conceive. It is unencumbered by those fictions which have been thrown over it in other countries, and it appears in every possible form according to the exigency of the occasion. Sometimes the laws are made by the people in a body, as at Athens; and sometimes its representatives, chosen by Universal suffrage, transact business in its name, and almost under its immediate control.

In some countries a power exists which, though it is in a degree foreign to the social body, directs it, and forces it to pursue a certain track. In others the ruling force is divided, being partly within and partly without the ranks of the people. But nothing of the kind is to be seen in the United States; there society governs itself for itself. All power centres in its bosom; and scarcely an individual is to be met with who would venture to conceive, or, still less, to express, the idea of seeking it elsewhere. The nation participates in the making of its laws by the choice of its legislators, and in the execution of them by the choice of the agents of the executive government; it may almost be said to govern itself, so feeble and so restricted is the share left to the administration, so little do the authorities forget their popular origin and the power from which they emanate.

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INdian Removal Act – 1830

Posted by sethrd23 on November 24, 2009

Federal legislation enacted on May 28, 1830, authorizing the president to exchange land west of the Mississippi River for eastern lands held by the Indians.

Indian Removal Act (1830)

From: United States Statutes at Large, 21st Cong., Sess. I, Chp. 148, p. 411-412

May 28, 1830

AN ACT

To provide for an exchange of lands with the Indians residing in any of the states or territories, and for their removal west of the river Mississippi.

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That it shall and may be lawful for the President of the United States to cause so much of any territory belonging to the United States, west of the river Mississippi, not included in any state or organized territory, and to which the Indian title has been extinguished, as he may judge necessary, to be divided into a suitable number of districts, for the reception of such tribes or nations of Indians as may choose to exchange the lands where they now reside, and remove there; and to cause each of said districts to be so described by natural or artificial marks, as to be easily distinguished from every other.

Sec. 2. And be it further enacted, That it shall and may be lawful for the President to exchange any or all of such districts, so to be laid off and described, with 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, for the whole or any part or portion of the territory claimed and occupied by such tribe or nation, within the bounds of any one or more of the states or territories, where the land claimed and occupied by the Indians, is owned by the United States, or the United States are bound to the state within which it lies to extinguish the Indian claim thereto.

Sec. 3. And be it further enacted, That in the making of any such exchange or exchanges, it shall and may be lawful for the President solemnly to assure the tribe or nation with which the exchange is made, that the United States will forever secure and guaranty to them, and their heirs or successors, the country so exchanged with them; and if they prefer it, that the United States will cause a patent or grant to be made and executed to them of the same: Provided always, That such lands shall revert to the United States, if the Indians become extinct, or abandon the same.

Sec. 4. And be it further enacted, That if, upon any of the lands now occupied by the Indians, and to be exchanged for, there should be such improvements as add value to the land claimed by any individual or individuals of such tribes or nations, it shall and may be lawful for the President to cause such value to be ascertained by appraisement or otherwise, and to cause such ascertained value to be paid to the person or persons rightfully claiming such improvements. And upon the payment of such valuation, the improvements so valued and paid for, shall pass to the United States, and possession shall not afterwards be permitted to any of the same tribe.

Sec. 5. And be it further enacted, That upon the making of any such exchange as is contemplated by this act, it shall and may be lawful for the President to cause such aid and assistance to be furnished to the emigrants as may be necessary and proper to enable them to remove to, and settle in, the country for which they may have exchanged; and also, to give them such aid and assistance as may be necessary for their support and subsistence for the first year after their removal.

Sec. 6. And be it further enacted, That it shall and may be lawful for the President to cause such tribe or nation to be protected, at their new residence, against all interruption or disturbance from any other tribe or nation of Indians, or from any other person or persons whatever.

Sec. 7. And be it further enacted, That it shall and may be lawful for the President to have the same superintendence and care over any tribe or nation in the country to which they may remove, as contemplated by this act, that he is now authorized to have over them at their present places of residence: Provided, That nothing in this act contained shall be construed as authorizing or directing the violation of any existing treaty between the United States and any of the Indian tribes.

Sec. 8. And be it further enacted, That for the purpose of giving effect to the provisions of this act, the sum of five hundred thousand dollars is hereby appropriated, to be paid out of any money in the treasury, not otherwise appropriated.

Approved, May 28, 1830.

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Anti-Masonic Party Platform

Posted by sethrd23 on November 24, 2009

This list of resolves expresses the belifs and goals of the Anti-masonic platform.

Anti-Masonic Party Platform (1831)

Anti-Masonic Party

September 28, 1831

Resolved, That the existence of secret and affiliated societies is hostile to one of the principal defences of liberty,—free discussion,—and can subserve no purpose of utility in a free government.

Resolved, That we, as American citizens, will adopt the counsel given us by the illustrious Washington, “That all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of the fundamental principle of liberty, and of fatal tendency.”

Resolved, That the organization of the anti-masonic party is founded upon the most satisfactory and undeniable evidence, that the masonic institution is dangerous to the liberties, and subversive of the laws of the country.

Resolved, That where evils of this nature are found existing in a free government, holding, by means of a secret combination, a majority of the civil, judicial, and military offices in the country, there are but two modes of redressing the grievance—either by revolution, or by an appeal to the ballot boxes.

Resolved, That the anti-masonic party, in choosing the latter remedy, have taken up the peaceful and legitimate weapons of freemen, and that they ought never to lay them down in this cause, until the liberty of the press, the liberty of speech, equal rights, and an entire overthrow of masonic usurpations, are fully and completely achieved.

Resolved, That the direct object of freemasonry is to benefit the few, at the expense of the many, by creating a privileged class, in the midst of a community entitled to enjoy equal rights and privileges.

Resolved, That we esteem it the plain duty of the members of that institution, as citizens of our common country, either collectively to abolish it, or individually to abandon it.

Resolved, That we have witnessed with pleasure, the efforts on the part of some of the masonic fraternity to produce a voluntary abandonment of the order. While we regard these efforts as the manifestation of homage to public opinion, we should rejoice. in their success, inasmuch as it would produce a more speedy accomplishment of the great object which the anti-masonic party, with singleness of purpose, are striving to effect.

Resolved, That discussion, persuasion, and argument, in connection with the exercise of the right of suffrage, is a correct and speedy mode of diffusing information upon the subject of freemasonry, and is the best method to ensure the entire destruction of the institution.

Resolved, That the oaths and obligations imposed upon persons when admitted into masonic lodges and chapters, deserve the unqualified reprobation and abhorrence of every Christian, and every friend of morality and justice.

Resolved, That these oaths, being illegally administered, and designed to subserve fraudulent purposes, ought not to be regarded as binding in conscience, morality, or honor; but the higher obligations of religion and civil society require them to be explicitly renounced by every good citizen.

Resolved, That the gigantic conspiracy in New York, against the life of William Morgan, was the natural result of the oaths and obligations of masonry, understood and acted upon according to their plain and obvious meaning.

Resolved, That there is sufficient proof that the perpetrators of the abduction and murder of William Morgan, have, in several instances, been shielded from the punishment due to their crimes, by the Grand Lodge and Grand Chapter of New York, and by subordinate lodges and chapters, according to their masonic obligations, whereby those lodges and chapters have countenanced those outrages, and become accomplices in their guilt.

Resolved, That those masons who became acquainted with and concealed the facts relative to the abduction of Capt. William Morgan, are accessary to that horrid transaction.

Resolved, That, in applying the right of suffrage to effect the suppression of freemasonry, we not only exercise a right which is unalienably secured to us, but discharge a duty of the highest obligation, in thus endeavoring to abate a great political evil.

Resolved, That there can be no proscription, where every freeman has a right—and exercises that right—to vote for the candidate of his own choice.

Resolved, That anti-masonry has for its object the destruction of freemasonry; for its means, public opinion, manifested through the exercise of the elective franchise; that it acts upon the great principles of liberty, which made us a free people, and relies upon them to ensure the attainment of its high purpose.

Resolved, That an actual adherence, by freemasons, to the principles contained in the obligations of the order, is inconsistent with paramount duties, which they owe to the state, and is a disqualification for offices of public trust.

Resolved, That we find, in the unexampled growth of the anti-masonic party, the diffusion and prevalence of its principles, the continued approbation bestowed upon them by the enlightened and wise men of the nation, abundant cause for encouragement, and perseverance with increased zeal and unabated determination, until the institution of freemasonry shall be overthrown or abandoned.

Posted in 1831 | 2 Comments »