rize the court to say, that different consequences are attached to this purchase, because it was made by a stranger."—Ib. p. 593.

These decisions of the Supreme Court accord with what we have stated, excepting that they do not directly determine, whether the right of extinguishing Indian occupancy belongs to the United States or to the State. We are unable to form an idea of a sovereign State, which has not the power of legislating upon all matters within its jurisdiction. If another government can interfere in such jurisdiction, without the consent of the State, the State cannot be sovereign. Georgia is a sovereign State. Putting then out of view how far her sovereignty might have been impaired by the confederation, (which we have already considered) or may be impaired by the Federal Constitution, (which we shall hereafter consider) her right to legislate, exclusively upon the Indian title to lands within her limits, we apprehend, can, with no greater plausibility, be controverted, than her exclusive right to legislate concerning the mode in which the title to real property in the State may be acquired or relinquished by her citizens. Where a right is possessed, as a general rule, the means of perfectly enjoying it, are incidentally annexed to it. If the power of aliening in fee, were in one government, and of extinguishing the right of occupancy in another, both might be prevented from reaping the full benefit of their power The State having the fee, could by no act of its own obtain the possession of the soil, notwithstanding the willingness or the desire of the occupants to part with it for an adequate consideration. The United States having the right to extinguish the occupancy, might refuse to exercise it. In exercising it, they could not choose a purchaser, for the occupancy could not be purchased; and so soon as it should be extinguished, the possession, with the fee-simple, would devolve upon the State. This division of power is both inconvenient and unnatural. The State seized in fee, is strongly interested in the extinguishment of the Indian title, and would be more likely to effect it, than the United States, having no interest, and which may never aid the State in the accomplishment of its wishes. No obligation to extinguish Indian title in a State is imposed upon the United States by the Constitution: a State, therefore, if the power be in the United States, however urgent might be its inducements for the extinguishment of the title, would be utterly remediless. Although the cases of Fletcher and Peck, and of Johnson and M'Intosh have not directly determined that a State can extinguish the Indian occupancy, yet a careful perusal of them will convince any one, that the inference in favor of this power being in the State,

is irresistible. In Johnson and M'Intosh, the title in issue related to lands which had been ceded to the United States; and the court decided that the occupancy could only be extinguished by the United States, which possessed the fee-simple. In Fletcher and Peck, the lands disputed were in the State of Georgia; and in Johnson and M'Intosh, the court said, "that the real question" (in Fletcher and Peck) " presented by the issue was, whether the seizure in fee was in the State of Georgia or in the United States:" having decided that the seizure in fee was in the State of Georgia, the judgment was, that she could alien the lands in fee, although they would be subject to the Indian right of occupancy, which had not been extinguished. The principle in both cases, although not laid down in so many words, is, that the power possessing the fee-simple and the jurisdiction, can extinguish the Indian right of occupancy. In neither of these cases is it asserted that the United States can alone extinguish the Indian right of occupancy, notwithstanding it would have been so expressed in Johnson and M'Intosh, as the question there related to lands belonging to the United States in fee.The Court in that case remarked-.

"It has never been doubted that either the United States or the several States had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right was vested in that government which might Constitutionally exercise it."—p. 585.

If the Chief-Justice, so remarkable for the fulness and the precision with which he conveys his ideas (and it is by him that the opinion of the Court was pronounced) had considered the exclusive right of extinguishing Indian title to be in the United States, he would have made use of corresponding language. The obvious conclusion from what he did say, is, that the exclusive power to extinguish the Indian title was vested in that gov ernment, within whose jurisdiction the lands were situated.Should a doubt be raised of the correctness of our conclusion, it will hardly remain, if we refer to the following extracts from the case just mentioned :

66

Virginia passed an act in the year 1779, declaring her exclusive right of pre-emption from the Indians of all the lands within the limits of her own chartered territory, and that no person or persons whatsoever, have or ever had, a right to purchase any lands within the same, excepting only persons duly authorized to make such purchase, formerly for the use and benefit of the colony, and lately for the Commonwealth. The act then proceeds to annul all deeds made by Indians to individuals, for the private use of the purchasers. Without ascribing to this act the power of annulling vested rights, or admitting it to countervail

the testimony furnished by the marginal note opposite to the title of the law, forbidding purchases from the Indians, in the revisals of the Virginia statutes, stating that law to be repealed, it may safely be considered as an unequivocal affirmance, on the part of Virginia, of the broad principle which had always been maintained, that the exclusive right to purchase from the Indians resided in the government.'

-p. 585.

To purchase what from the Indians? Unquestionably nothing but their right of occupancy, for the fee-simple was in the State of Virginia. Had this act of Virginia been deemed illegal, it would not have been cited and commented upon, in confirmation of the principle laid down by the court. Introduced in the manner in which it is, it amounts to a plain recognition, that the State is the government which can alone extinguish the Indian right of occupancy to lands within its boundary. The prevalence of the opinion that the United States can alone negotiate with the Indians for the extinction of their title, is not disputed by us; we nevertheless contend, and trust that we have demonstrated, both upon principle and the highest judicial authority known to our country, that this power cannot be constitutionally exercised by the United States, excepting where the lands are within their territorial possessions. According to the Report, "to the Constitution of the United States, Georgia became a party, and thereby relinquished, if she previously possessed it, all power to treat with the Indians, and all right to exclusive power over them." It is not pretended that the power and the right of Georgia have been expressly taken away by any words in the Constitution: that they have been taken away, is inferred1st. From the treaty-making power. 2ly. From the power to regulate commerce with the Indian tribes; and 3ly. From the power to declare war. These grounds we will examine in

their order.

First: The treaty-making power. By the second section of the second article of the Constitution, the power of making treaties is with the President and the Senate. Treaties made "under the authority of the United States" become the supreme law of the land, any thing "in the Constitution or laws of any State to the contrary notwithstanding." These treaties are, of course, such as the President and Senate can constitutionally make: to be constitutionally made, they must be authorized by the Constitution. Whenever treaties are mentioned in history, in diplomacy, or in law, they invariably mean contracts entered into by independent nations, or by nations regarded to be independent; it is only with independent nations, (excepting in certain cases which do not contradict but confine the general rule) that treaties can be made; because they alone are competent to perVOL. II.-NO. 4: 70

form their conditions. Where agreements are made with individuals, with parishes, townships, districts, or with subordinate bodies politic, they are never termed treaties, either in ordinary or technical language: so to call them would be a palpable misnomer. "A treaty, in Latin, fædus, is a pact made with a view to the public welfare by the superior power."* "Public trea

ties can only be executed by superior powers, by sovereigns who contract in the name of the State." The Federalist in speaking of the power of making treaties, remarks-"Its objects are contracts with foreign nations, which have the force of law, but derive it from the obligation of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign." p. 405. "In its general sense," says Mr. Rawle, in his View of the Constitution of the United States, "we can be at no loss to understand the meaning of the word treaty. It is a compact entered into with a foreign power, and extends to all those matters which are generally the subjects of compact between independent nations." p. 58. Are Indian tribes in the United States independent nations? Have they ever been so considered? Are they so in fact?

We believe that it has never been laid down in any respectable treatise upon the law of nature or of nations, or decided by any European or American tribunal, that Indians are independent nations. They are destitute of laws, unless a few traditionary maxims and customs, having no connexion with government or morals, can be so termed: they hold real property in common: they are unacquainted with the arts of writing and printing, and have not even an alphabet of their language. In peace, they are strangers to the regular pursuits of industrythey depend for subsistence upon the precarious supplies of the forest and the lake-when not occupied in hunting or fishing, their time is passed in listless indolence, or in barbarous sports. In war, their rage is merciless and indiscriminate-they feel the same transports when they bury their tomahawk in the bosom of decrepid age, of vigorous manhood, of blooming youth, or of smiling infancy. Blood and destruction are the objects of their battles and the fruits of their victories-the bleeding scalp, their most glorious trophy-the torture of enemies their keenest delight; and among some of the tribes, in obedience to what they hold to be the duties of religion, they banquet upon the half-burnt and quivering limbs of prisoners selected for that horrid rite. This picture is not drawn to excite indignation + Ibid. lib. ii. c. 1. §. 4.

* Vat. L. N. lib. ii. c. 12. §. 152. Although exceptions are to be found to the representation which we have given of the manners and customs of the Indians in the United States, they are so rare, as not to invalidate its general correctness.

and disgust towards a wretched and often an oppressed race, but as presenting some of the causes for its exclusion from the pale of nations. For a fuller illustration of them, without troubling the reader with extracts, we will refer him to Locke, &c.* According to the laws and usages of European potentates, the discovery of the countries of the new world, gave an absolute dominion over them, to the sovereign by whose subjects the discovery had been made. By that sovereign were the regulations established, which should subsist between the discoverers and the natives. Great Britain acquired her supremacy over that portion of this continent now within the United States, partly by discovery and partly by conquest, from those whose original title was founded upon discovery. In both cases, she asserted and maintained her sovereignty, but granted to the Indian inhabitants the occupancy of the soil, in their possession, as a right; the fee-simple in it she reserved to herself, together with the exclusive power of extinguishing the right of occupancy. When, therefore, she ceded lands of the Indians, without their right of occupancy having been extinguished, which she frequently did, the grantee held, subject to that incumbrance: if the right of occupancy had been extinguished, he took a perfect title. So little were the Indians deemed by the European governments to be independent, that in the numerous treaties among these governments, territories in the possession of Indians, were ceded, without their being described or even alluded to.

By the treaty of 1783, between our government and GreatBritain, all the political and territorial rights and claims which Great-Britain had possessed within the boundaries designated in that treaty, devolved upon the United States or upon the several States. Whatever might have been the laws or usages of Europeans, relating to the condition of the Indians, no obligation was imposed upon the United States to adopt them; but they did recognize and act upon these usages and customs to the fullest extent. Whether our government derives its dominion over the Indians from treaties, or from the laws and usages of the European world, or from its own construction of the law of nature, it is not material to determine. It never regarded the Indians as sovereign nations; and has exercised over them the same supremacy that Great-Britain and other European powers formerly did. Congress has even legislated for them, criminally and civilly; has authorized the military force of the Union to apprehend them within the limits of their

* Locke on Gov. b. 2. c. 7. §. 87-89. Smith's W. N. vol. ii. p. 152. Montesquieu's Spt. Law. b. xviii. c. 11-13. Jefferson's Notes, p. 126.