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and empty declaimers of a vicious school, and this judgment of the Pseudo-Attics of his own day, has been almost unanimously reversed by posterity. The censures of the hypercritical Pollio, he shared in common with others, among the first writers of Rome. What could he expect of one who turned up his nose at the provincialism-the patavinitas-of Titus Livius?

The preference of the Attic to the Asiatic style, is founded, as Cicero himself remarks, upon the universal and unchangeable principles of nature. Taste is nothing but judgmentthe severest and most exquisite judgment-applied to objects which produce the emotions of sublimity and beauty. It is only another form of common sense and the sense of propriety and there is no reasoning or metaphysics half so acute and refining, as that which a good writer or speaker almost unconsciously applies to the merest minutiæ of style. This perception of what is fit and decorous, is the thing so much admired and studied under the name of elegance.* Two principles, among others, regulate its decisions. 1. Utility, which is the being able to give a reason for every thing that is done in a work of art, by pointing out the end it is designed to accomplish-for instance, the proportions, &c. of a pillar of the Corinthian or the Ionic order, are governed by the weight it is supposed to support, and such like considerations. Cicero developes this principle with great clearness and judgment.† 2. The second is, "that by a law of nature, whatever objects affect our senses most keenly at first, and afford us the highest pleasure, are most apt to produce satiety and disgust. How much more glaring and florid is the colouring of most modern paintings than that of the ancient? Yet however they strike us at first, they do not delight us long, whereas, there is a secret charm in the faded beauties of the old masters.'. The same observations apply to the objects of smelling, hearing and taste. "Thus in all things, the greatest pleasure is ever on the border of disgust; so that we ought the less to wonder that neither in poetry nor prose, is an ornate, ambitious and affected style, without variety or relief, in whatever brilliant colours it may array itself, destined to please long." This may be regarded as a fundamental canon of criticism.

It is by this test that the works of Cicero himself have been tried. It is the admiration of all cultivated nations, bestowed upon the classic models, for upwards of two thousand years together, that warrants the opinion that their simple beauties approach as near perfection, as it is given to man to come.

* Caput est artis decere, ut dixit Roscius.-De Orat. lib. i. c. 29.
De Orat. lib. iii. cc. 45-46-47.

Ibid. c. 25.

ART. IX.-Report of the Select Committee of the House of Representatives, to which were referred the Messages of the President of the United States, of the 5th and 8th of February, and 2d March, 1827, with accompanying documents; and a Report and Resolutions of the Legislature of Georgia, March 3, 1827. Read and laid upon the table.

FEW documents have been presented to Congress since the adoption of the Federal Constitution, more worthy of notice, than the one of which the title precedes this article. In it are involved the important inquiries-does the Federal Government or the State of Georgia possess the power to extinguish the titles to lands in the occupancy of Indian tribes, within the limits of that State? Is the power of entering into treaties with Indian tribes vested in the United States? Can a treaty, executed and ratified in due form by the contracting parties, the United States being one of them, by which valuable rights, under a solemn compact and for a valuable consideration, are conveyed to a State, be in any, and in what manner annulled, without the consent of the interested State? Can the President, when called upon, according to the fifth of the rules and articles of war, to arrest a military officer of the United States army, charged with having used contemptuous and disrespectful language towards the Governor of a State, exercise a discretion and refuse to comply with the requisition? By these topics, we should naturally be led to the consideration of the course of policy which ought to be observed towards the Aborigines of our country; and to inquire how the question of power, to which we have referred, between the United States and Georgia, is to be decided. In this article, we shall confine ourselves to examining, whether the power to extinguish the Indian title within the territory of Georgia, is vested in the United States or in that State; whether the Federal Government can constitutionally enter into treaties with Indian tribes; and to the expressing our opinion as to the manner in which the question between the United States and Georgia ought to be decided. It is said in the Report, that

"In the event of the war of independence, the rights of the British Government devolved upon the United States. But a grave question arose, whether, in reference to the Indian tribes within the limits of any State, the right of exclusive sovereignty and exclusive pre-emption, formerly vested in the Crown, passed, in virtue of the declaration of

Independence, to the confederation of States, or to the individual States, repectively, within the limits of which each tribe was situated. On the one hand it was contended, that the right to the unoccupied land, and what was considered the same thing, the land occupied by the Indians, having originally resided in that government, which was common to all the colonies, and having been conquered from that government, at the joint expense and efforts of all the colonies, passed to the confederation; on the other hand, it was urged, that each State becoming independent, succeeded, within its own limits, to all the rights formerly vested in the Crown. The controversies growing out of this difference of opinion, were of the most serious character. They were one chief cause which retarded the adoption of the articles of confederation; and under the confederation, they formed the subject of some of the most embarrassing questions which were presented to the consideration of the Continental Congress. The difficulties thus arising, were of too great magnitude, to be settled by any positive decision in favour of either party. They were practically obviated by successive acts of cession, on the part of States laying claim to extensive tracts of unoccupied western lands. The conditions on which these cessions were made by the different States were not uniform; nor did Congress in accepting these cessions, admit, that without them, the confederacy would have possessed no title to the unoccupied lands. It was a settlement by compromise, between conflicting parties, whose interests were too important to admit of any other mode of adjustment. Georgia was the only State having large claims to lands on the western frontier, which did not, either before or shortly after the adoption of the Federal Constitution, make such a cession to the United States. Resolutions were repeatedly adopted by the old Congress, recommending to her a cession, on the same principles on which the cessions of the other States, and particularly Virginia, had been made. In the year 1788, Georgia offered to Congress a cession of land, commencing on the Chatahouchie river, &c. a tract, comprehending the lower half of the present States of Alabama and Mississippi. Several conditions were attached to this cession, among others, that of a guaranty to Georgia of all the remainder of the unoccupied lands which she claimed to the west. conditions were not satisfactory to Congress, and the cession was not accepted. In 1795, the Legislature of Georgia proceeded to make extensive sales of the unoccupied lands on her western frontier. Great embarrassment arose relative to the titles acquired under those sales, and at length, in 1802, a compromise was entered into between Georgia and the United States, in virtue of which, and on conditions mutually acceptable, Georgia ceded to the United States all her right and title westward of a certain line; and the United States ceded to Georgia all the claim, right and title of the United States, to the jurisdiction and soil of the territory east of the said line; assuming, at the same time, the obligation of extinguishing the Indian title to all the lands east of the said line, as soon as it could be done 'peaceably, and on reasonable terms.' These articles of cession were concluded between the commissioners of the United States and those of Georgia, on the 24th April, 1801." pp. 2, 3.

These

In a subsequent passage of the Report, it is stated, that

"The right to regulate trade and intercourse with the Indians, was one of the first Federal rights exercised after the commencement of the Revolution. On the 12th of July, 1755, it was resolved by the Continental Congress, that Commissioners be appointed by this Congress to superintend Indian affairs on behalf of these colonies; and the Indians were divided by the same resolution, into the Northern, Middle and Southern departments. In the last department, the Creek Indians were included. By the articles of confederation, Congress had the exclusive power of making treaties; at that time, and it is believed, at all times, the only mode, in a state of peace, in which the relations with Indian tribes, have been conducted in the United States. Congress had also the power of regulating and managing all affairs with the Indians, not members of any of the States: provided, that the legislative right of any State, within its own limits, be not infringed or violated.' This express proviso, and the proviso implied in the words 'not members of any State,' were the sources of much embarrassment under the old confederation. Georgia, particularly, claimed the right to treat with the Creek Indians, concerning peace, lands, and the other objects that usually form the matters of Indian treaties, and in order to establish her right so to do, she, by the treaty of Galphinton, in 1785, stipulated that the Indians of the Creek nation were 'members of the State of Georgia.' In what sense they could have been 'members of the State,' this committee does not understand; and the right of a State to enter into these treaties with the Indians, was strenuously resisted by Congress. At length the Constitution was adopted. The treaty-making power was again vested in the United States. A treaty duly ratified, became the supreme law of the land, any thing in the constitution or laws of any State to the contrary notwithstanding.' By the confederation, the powers of the Congress for regulating trade and managing affairs with the Indians, were Jimited by the proviso 'that the legislative right of any State, within its own limits, should not be infringed or violated.' No such limitation is found in the Constitution of the United States. This omission was not undesignedly made. It was one of the changes expressly introduced, to prevent the continued collision of Federal and State powers, which had so long existed to the injury of the public. The grant of unqualified power to regulate commerce with the Indians, the exclusive right of repelling by force, their hostile encroachments, and the exclusive power of treating, were necessarily so many infringements upon the jurisdiction of the individual States, and upon the power of the State Legislatures. If any authority be wanted to confirm these principles, it may be found in the forty-second number of the 'Federalist,' a paper written by Mr. Madison. To the Constitution of the United States, thus designedly framed on these points, Georgia became a party, and thereby relinquished, if she previously possessed it, all power to treat with the Indians, and all right to exclusive powers over them. The powers conferred on the General Government, in reference to the Indians, are to be viewed, not more as conferring an authority than as implying and imposing burdens.

With their exclusive rights, in relation to the Indians, devolved on the United States the great duty of defending the States against savage violence. In the discharge of this duty, is laid the foundation of the military establishment of the United States. The first armies raised, after the adoption of the Federal Constitution, were for defence against the Indians. And in this way, the older States of the Union, who struggled in their infancy, alone and unaided, against numerous and powerful tribes of savages, have been charged with, perhaps, the greatest single item of public expenditure, in the fulfilment of the trust and duty of carrying on the relations of the Union with the Indians. But the power and the burden must be reciprocal, and the State which claims the right, by uncontrolled legislation, of causing an Indian war, cannot reasonably call on the Union to sustain the burden of carrying it on." pp. 16-18.

These extracts contain all the material facts and reasonings to be found in the Report, to sustain its conclusions, that the State of Georgia is precluded from entering into any negotiations respecting the extinguishment of Indian title within her territories; and that the power of treating upon that subject with the Indians generally, is exclusively vested in the United States.

Not concurring in these reasonings and resolutions, it will be our object to shew that Georgia, at the declaration of Independence, enjoyed the fee-simple in, and the jurisiction over all the vacant lands in that State; and that she is now invested, exclusively, with the power to extinguish the title to those parts of them which are in the occupation of Indian tribes.

We are not unapprized of the existence of a class of moralists, which limits the right to land on this continent, to the Aborigines, and to those who derive their title from them. We shall not formally discuss this position, which we conceive to be more proper for the abstraction of schoolmen, than for the investigation of statesmen and jurists. Those lawless Indian hordes, once so powerful and terrible, capable of crushing the united bands of our ancestors, have now dwindled into comparative insignificance. Their numbers reduced, their warlike fire quenched; instead of inspiring fear, they are objects of commiseration. Policy and humanity dictate, that they should be treated with considerate and liberal kindness, not as some insist, because we have trampled upon their sovereignty, diminished their population, and usurped their soil, but because from the natural course of circumstances, they have become impoverished and helpless, the rude savage invariably contracting the vices, without participating in the virtues and useful attainments of his civilized neighbours. We have never been able to discover any force in the argument, that as the Indians were

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