the Aborigines of North-America, and were scattered over its soil, they, therefore, by the law of nature, were the owners of it; but we do discover an infinity of injurious consequences arising from the acknowledgment of the exclusive empire of the savage, over a territory never cultivated by his arm, nor seen by his eye. We can perceive neither justice, nor wisdom, nor humanity, in arresting the progress of order and science, that unproductive and barren wastes may be reserved for the roaming barbarian. We shall never justify the tyranny of the strong, the vigilant and the enlightened, over the feeble, the indolent, and the simple. We contend for no more, than that our forefathers, with untroubled consciences, might seat themselves upon fields far distant from human habitations-might possess themselves of forests which the red man had never traversed, and of rivers and lakes, whose surface he had never ruffled, but in the distant pursuit of his enemy or his prey. "All mankind," says Vattell, "have an equal right to the things that have not yet fallen into the possession of any one; and these things belong to the first possessor."* "There is another celebrated question to which the discovery of the new world has principally given rise. It is asked if a nation may lawfully take possession of a vast country, in which there are found none but erratic nations, incapable by the smallness of their numbers, to people the whole? We have already said, that the earth belongs to the whole human race, and was designed to furnish it with subsistence: if each nation had resolved from the beginning, to appropriate to itself a vast country, that the people might live only by hunting, fishing, and wild fruits, our globe would not be sufficient to maintain a tenth part of its present inhabitants. People, then, have not deviated from the views of nature in confining the Indians to their narrow limits."+ To lay down rules, distinguishing cases, in which nations may, and in which they may not take possession of vacant lands, would be difficult, if not impracticable. It would, we presume, be denied by no one, that the means of the Indian's subsistence, in his accustomed modes, should not be invaded; but that what he neither uses nor needs, nor ever could have had an opportunity of even claiming, may be appropriated by others, would seem to be equally just. Upon this, as upon many other questions under the law of nature, perplexities will occur in disposing of them, we ought to be governed by the precepts of religion and morals, which teach us, that power is not synonymous with right, and that peculiar for

* Vattel, lib. i. c. 18, § 208. VOL. II. NO. 4.

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t Ibid. c. 19. § 209.

bearance should be observed towards the defenceless and the ignorant. To return to our more immediate subject.

The declaration of Independence was not the act of united America as one nation, but of the United States of America. It asserted "that the united colonies are, and of right ought to be, free and independent States." The union of all the States, and the sovereignty of each of them, was the principle of the Revolution. Necessity or policy prescribed the extent to which every State bound itself to aid the common cause; but no State engaged, for that purpose, to cede any of its territory, or any jurisdiction over it. Such was the situation of the United States, from the declaration of Independence to the ratification of the articles of confederation. On the 11th June, 1796,' (the day after that on which the resolution in favour of independence had passed in a committee of the whole) Congress determined to raise a committee to prepare the form of confederation. On the 12th of June, the committee was appointed, and reported its plan on the 12th of July following, which was adopted by Congress on the 15th of November, 1777. The articles of confederation were, nevertheless, not finally ratified by all the States, until the 1st of March, 1781. The principal obstacle to their signature, was occasioned by the controversies among the States, as to the disposition which should be made of the vacant and unpatented western lands within the States, when they were colonies; a description which comprehended not only lands actually vacant and unpatented, but those which were inhabited by Indian tribes. This question excited such fierce and angry passions, as repeatedly to threaten the destruction of the Union. Some of the States refused to cede any of their lands to Congress; others peremptorily refused to join the confederation, unless the vacant lands were vested in the United States for the common benefit. New-York, to put an end to these discontents, in February, 1780, passed an act, "to facilitate the completion of the Articles of Confederation and perpetual union among the United States of America," with a preamble, declaring, that "whereas the articles of confederation and perpetual union, recommended by the honourable the Congress of the United States of America, have not proved acceptable to all the States, it having been conceived that a portion of the waste and uncultivated territory, within the limits or claims of certain States, ought to be appropriated as a common fund for the expenses of the war; and the people of the State of New-York, being, on all occasions, disposed to manifest their regard for their sister States, and their earnest desire to promote the general interest and security; and more especially, to accelerate the federal alliance, by re

moving, so far as it depends upon them, the before-mentioned impediment to its final conclusion," &c. did, therefore, authorize the delegates of New-York, "to limit and restrict the western boundaries of that State, by such line or lines, and in such manner and form, as they shall judge to be expedient, either with respect to the jurisdiction as well as the pre-emption of soil, or reserving the jurisdiction in part, or in the whole, over the lands which may be ceded or relinquished, with respect only to the right or pre-emption of the soil." This act further ordained, that the territory thus ceded, "should be and enure for the use and benefit of such of the United States, as should become members of the federal alliance of the said States, and for no other use or purpose whatsoever." In September, 1780, Congress recommended to the States, a liberal surrender of a portion of their territories; and on the 10th of October following, declared, that the territories which might be thus ceded, "should be disposed of for the common benefit of the Union, and formed into republican States, with the same rights of Sovereignty, freedom and independence, as the other States; and that the expense incurred by any State since the commencement of the war, in subduing any British posts, or in maintaining and acquiring the territory, should be reimbursed." In compliance with this recommendation, the State of Virginia, on the 2d of January, 1781, ceded to the United States, all her lands to the north-west of the river Ohio. On the 1st of March, 1781, about two months after the cession by Virginia, Maryland, the only State which had until then withheld its signature from the Articles of Confederation, authorized its delegates in Congress to subscribe them. Georgia not having then ceded any of her territory to the Union, retained these rights to it, which she possessed, when independence was declared, the confederation having in no manner affected them. Should this be doubted, the question would be set at rest by a mere reference to the second of the Articles of Confederation, and to the proceedings of Congress, after their ratification. By the second of the Articles of Confederation, "each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled." On the 2d of November, 1782, a committee of Congress reported, "that they had had a conference with two deputies of 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 with their own consent."

Whereupon resolved, "that it be recommended to the Legislature of the State 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.”* On the 15th of October, 1783, Congress resolved, that all civil and military officers, particularly all commissioners or agents, should be prohibited from purchasing lands from the Indians, except by the license of the United States, with an express reservation, that "their resolution should not be construed to affect the territorial claims of any of the States, or other legislative rights within their respective limits." On the 7th of August, 1786, Congress passed a general ordinance upon Indian affairs, from which the following is extracted :

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Congress have the sole and exclusive right and power of regulating the trade, and managing all affairs with the Indians, not members of any of the States, provided, that the legislative right of any State, within its own limits, be not infringed or violated."‡

These resolutions acknowledge the territorial claims and legislative rights of the States, within their respective limits. As late as the 20th of October, 1787, Congress resolved

"That it be, and hereby is represented to the States of North-Carolina and Georgia, that the lands which have been ceded by the other States, in compliance with the recommendation of this body, are now selling in large quantities for public securities; that the deeds of cession from the different States have been made without annexing an express condition, that they should not operate until the other States,- under like circumstances, made similar cessions; and that Congress have such faith in the justice and magnanimity of the States of North-Carolina and Georgia, that they only think it necessary to call their attention to these circumstances, not doubting but, upon consideration of the subject, they will feel the obligations which will induce similar cessions, and justify that confidence which has been placed in them."

On the 1st of February, 1788, Georgia did offer to cede a part of her western lands to the United States, upon certain conditions: these conditions not being accepted, the cession was not made. Congress expressed its reasons for not accepting the cession upon the terms proposed, without pretending to any right in, or jurisdiction over the territory. But says the Report, Congress in accepting cessions from the States, did not "admit that without them, the confederacy would have possessed no title to the unoccupied lands." It would have been supererogatory in Congress to have made that admission. It repeatedly recognized the rights of the States to the lands within their limits.

Indian Treaties and Laws, p. 428. + Ibid. pp. 435, 436. + Ibid. p. 442.

It in no instance demanded them as its property. It could have produced no title to them. It earnestly, and at several times, recommended to the States, to make cessions of their lands to the United States, for the common benefit, never, in the most indirect manner, setting up any claim to them. Would cessions be recommended, where the right to demand existed? If Congress had the right, impelled by the imperious necessities which it frequently and forcibly urged, when its recommendations were disregarded, would it not have been bound in duty to resort to measures of coercion? Were any of the cessions made to Congress other than purely voluntary? From the declaration of Independence to the present day, has Congress, in a single instance, claimed any part of the lands of those States which were parties to the confederation, notwithstanding many sales of them have been made to individuals in fee-simple, and many voluntary cessions of them to Congress, subject to a variety of conditions? Did not some of the States reject the confederation, because no provision was inserted in it for the appropriation of the unoccupied lands to the common benefit of the Union? And did not these States afterwards accede to the confederation, although it contained no such provision? Did not their refusal to become members of the confederation, unless the unoccupied lands were conveyed to the United States, manifest, that they did not consider them as belonging to the United States, without the cession of the several States? and did not the 9th of the Articles of the Confederation declare, "that no state shall be deprived of territory for the benefit of the United States?" Were the territorial rights of the States ever expressly delegated to the United States, without which, in the language of the 2d of the Articles of Confederation, they were retained by the States?

It is asserted in the Report, that the difficulties relating to the unoccupied lands were settled under the confederation by compromise. When was the compromise made? Where is the evidence of it to be found? Who were the parties to it? What were its terms? We believe that none of these questions can be satisfactorily answered. Contemporaneous history informs us that the controversy ceased, not that it was compromised: that some of the States made voluntary cessions of portions of their territory to Congress, whilst others refused to make any; and that those States which did not cede, remained in the undisputed possession of the fee-simple in and the jurisdiction over all the unoccupied lands within their boundaries when independence was declared. Where the fee-simple in, and the jurisdiction over lands belong to a State, and a mere right of occupancy in them is granted to Indians, it seems to us to be a proposition too