Page: [1] [added text (appears to be different ink): Adams, Robt. Huntington ] SPEECH OF MR. ADAMS, OF MISSISSIPPI, ON THE BILL TO REMOVE THE INDIANS WEST OF THE MISSISSIPPI. Delivered in the Senate of the United States, April 1830 WASHINGTON: PRINTED BY DUFF GREEN 1830. Page: [2] SPEECH OF MR. ADAMS, OF MISSISSIPPI. Mr. PRESIDENT: I am sure that all must feel embarrassment in addressing, for the first time, the Senate of the United States; and, especially, on a subject of so much importance as the present. But mine is greatly increased from never before having been a member of a legislative assembly. But I feel great encouragement, from a knowledge that this circumstance will increase towards me the generous indulgence and courtesy for which this body is so distinguished. And I feel that it will be owing to that indulgence that I will be able to lay before the Senate the few imperfect observations which accur [occur] to me on the subject before us. The question which is submitted to us by the bill itself, as reported to the Senate by the Chairman of the Committee on Indian Affairs, is this: -- Whether Congress will authorize the President of the United States to exchange territory belonging to the United States, West of the river Mississippi, and not within the limits of any State or organized territory, with any tribe of Indians, or the individuals of such tribe, now residing within the limits of any State or Territory, and with whom the United States have any existing treaties, who may voluntarily choose to make such exchange for the lands which such tribe of Indians, or the individuals of those tribes for improvements made upon the lands they now occupy; to pay the expenses of their removal and settlement in the country West of the Mississippi, and provide them necessary subsistence for one year thereafter. The authority contemplated by the bill is to make the exchange of territory with those Indians, and with those only, who are willing to make it. The friends of this measure do not wish to vest power in the President of the United States to assign a district of country West of the Mississippi, and, by strong arm, to drive these unfortunate people from their present abode, and compel them to take Page: [3]4 up their residence in the country assigned to them. On the contrary, it is their wish that this exchange should be left to the free and voluntary choice of the Indians themselves. Is there any thing alarming in this proposition? any thing to cause that fear and trembling for the fate of the unfortunate Indian, which have been manifested in the opposition to this bill? Is there any thing to call forth those animated denunciations against those who disregard and violate the faith of treaties? As if those who support this measure were ready to prostrate at the foot of their own sordid interest the honor of the nation, and inflect a stain upon her escutcheon that all the waters of the Mississippi could not wash out. I confess, for my own part, I can see nothing in the provisions of the bill before us, unbecoming the character of a great, just, and magnanimous nation. And, indeed, if I had heard only so much of the eloquent speeches of those who oppose the passage of the bill as enjoined upon us the strictest good faith in the observance of treaties, I would have concluded that they were the warmest advocates of the proposed measure. As early as the year 1802, the United States entered into a compact with the State of Georgia, which compact was ratified in the most solemn manner, being approved by the Congress of the United States and by the Legislature of the State of Georgia. By this agreement, the United States obtained from the State of Georgia a cession of territory sufficient, in extent, to form two large States, and in part consideration for such an immense acquisition of territory, agreed, on their part, in the most solemn manner, to extinguish, for the use of Georgia, the Indian title to all the lands situated within the limits of that State, "as soon as the same could be done peaceably and upon reasonable terms." Although this is not, in the technical sense of the term, a treaty entered into by the United States with the State of Georgia, yet it is an agreement upon a full and valuable consideration, and good faith on the part of the United States requires its fulfilment, according to its true spirit and intent. The bill under consideration proposes a mode by which this agreement may be performed; by which the Indian title to all the lands within the boundaries of that State may be extinguished, peaceably, and upon reasonable terms. Peaceably, because it is only to operate upon those Indians who are willing to remove. And upon reasonable terms, because they are to receive other lands in exchange for those which they give up; just Page: [4]5 compensation for improvements made by them; the expenses of their removal and settlement paid, and subsistence for one year furuished [furnished] them. Would it not, therefore, have been reasonable to suppose, that those who have said so much about the high and sacred obligation of treaties, and how essentially the great name of every nation depends upon their strict observance, would be amongst the foremost and warmest supporters of the bill under consideration? And certainly it was matter of astonishment to me to find that all their mighty efforts had another aim. And as an excuse for that, we are told, that although this bill appears harmless on the face of it; that although all its exteriors seems well ordered, and no objection can be urged against it in the abstract, yet there are facts and circumstances so connected with it as to make it in the highest degree objectionable, and to justify the unsparing animadversions which have been bestowed upon it. The following portion of the message of the President of the United States to the present Congress, has been read, and urged as one of the causes of alarm. "The condition and ulterior destiny of the Indian tribes within the limits of some of our States, have become objects of much interest and importance. It has long been the policy of Government to introduce among them the arts of civilization, in the hope of gradually reclaiming them from a wandering life; which has, however, been coupled with another, wholly incompatible with its success. Professing a desire to civilize and settle them, we have, at the same time, lost no opportunity to purchase their lands, and thrust them further into the wilderness. By this means they have not only been kept in a wandering state, but been led to look upon us as unjust and indifferent to their fate. Thus, though lavish in its expenditures upon the subject, Government has constantly defeated its own policy; and the Indians receding farther and farther to the West, have retained their savage habits. A portion, however, of the Southern tribes, having mingled much with the whites, and made some progress in the arts of civilized life, have lately attempted to erect an independent government within the limits of Georgia and Alabama. These States, claiming to be the only sovereigns within their territories, extended their laws over the Indians; which induced the latter to call upon the United States for protection. Page: [5]6 Under these circumstances, the question presented was, whether the General Government had a right to sustain those people in their pretensions? The Constitution declares, that 'no new State shall be formed or erected within the jurisdiction of an other State,' without the consent of its Legislature. If the General Government is not permitted to tolerate the erection of a confederate State within the territory of one of the members of this Union, against her consent, much less could it allow a foreign and independent government to establish itself there. Georgia became a member of the Confederacy which eventuated in our federal union, as a sovereign State, always asserting her claim to certain limits; which, having been originally defined in her colonial charter, and subsequently recognised [recognized] in the treaty of peace, she has ever since continued to enjoy, except as they have been circumscribed by her own voluntary transfer of a portion of her territory to the United States, in the articles of cession of 1802. Alabama was admitted into the Union on the same footing with the original States, with boundaries which were prescribed by Congress. There is no constitutional, conventional, or legal provision, which allows them less power over the Indians within their borders, than is possessed by Maine or New York. Would the people of Maine permit the Penobscot tribe to erect an independent government within their State? and unless they did, would it not be the duty of the General Government to support them in resisting such a measure? Would the people of New York permit each remnant of the Six Nations within her borders to declare itself an independent people, under the protection of the United States? Could the Indians establish a separate republic on each of their reservations in Ohio? And if they were so disposed, would it be the duty of this Government to protect them in the attempt? If the principle involved in the obvious answer to these questions be abandoned, it will follow that the objects of this Government are reversed; and that it has become a part of its duty to aid in destroying the States which it was established to protect. Actuated by this view of the subject, I informed the Indians inhabiting parts of Georgia and Alabama, that their attempt to establish an independent government would not be countenanced by the Executive of the United States, and advised them to emigrate beyond the Mississippi, or submit to the laws of those States. Our conduct towards these people is deeply interesting to our national character. Their present condition, contrasted with what they Page: [6]7 once were, makes a most powerful appeal to our sympathies. Our ancestors found them the uncontrolled possessors of these vast regions. By persuasion and force, they have been made to retire from river to river, and from mountain to mountain, until some of the tribes have become extinct, and others have left but remnants to preserve, for a while, their once terrible names. Surrounded by the whites, with their arts of civilization, which, by destroying the resources of the savage, doom him to weakness and decay, the fate of the Mohegan, the Narragansett, and the Delaware, is fast overtaking the Choctaw, the Cherokee, and the Creek. That this fate surely awaits them, if they remain within the limits of the States, does not admit of a doubt. Humanity and national honor demand that every effort should be made to avert so great a calamity. It is too late to inquire whether it was just in the United States to include them and their territory within the bounds of the new States, whose limits they could control. That step cannot be retraced. A State cannot be dismembered by Congress, or restricted in the exercise of her constitutional power. But the people of those States, and of every State actuated by feelings of justice and regard for our national honor, submit to you the interesting question, whether something cannot be done, consistently with the rights of the States, to preserve this much injured race? As a means of effecting this end, I suggest, for your consideration, the propriety of setting apart an ample district West of the Mississippi, and without the limits of any State or Territory, now formed, to be guarantied to the Indian tribes, as long as they shall occupy it: each tribe having a distinct control over the portion designated for its use. There they may be secured in the enjoyment of governments of their own choice, subject to no other control from the United States than such as may be necessary to preserve peace on the frontier, and between the several tribes. There the benevolent may endeavor to teach them the arts of civilization; and, by promoting union and harmony among them, to raise up an interesting commonwealth, destined to perpetuate the race, and to attest the humanity and justice of this Government. This emigration should be voluntary: for it would be as cruel as unjust to compel the aborigines to abandon the graves of their fathers, and seek a home in a distant land. But they should be distinctly informed that, if they remain within the limits of the States, they must be subject to their laws. In return for their obedience, as individuals, Page: [7]8 they will, without doubt, be protected in the enjoyment of those possessions which they have improved by their industry. But it seems to me visionary to suppose that, in this state of things, claims can be allowed on tracts of country on which they have neither dwelt nor made improvements, merely because they have seen them from the mountain, or passed them in the chase. Submitting to the laws of the States, and receiving, like other citizens, protection in their persons and property, they will, ere long, become merged in the mass of our population." The principle insisted on in this part of the message, denying to the Indian tribes within the limits of the States, the rights of separate government; recommending to them to remove beyond the Mississippi; and declaring to them distinctly, that, if they remain within the limits of the States, they must submit to the laws of the States within whose limits they reside, is contrary to the provisions of the treaties made by the United States, with several of those tribes, and now existing in full force -- particularly with the Creeks, Choctaws, Chickasaws, and Cherokees; that the acts of the Legislatures of Georgia, Alabama, and Mississippi, extending the laws of those several States over the Indians residing within their respective limits, are, also, in violation of those treaties; that they are calculated to compell [compel] the emigration of those tribes: and to counteract and defeat the operation of the opinion expressed by the President of the United States, and this improper legislation, as it is called, of those States, an amendment has been offered. The amendment is in these words: "Provided, always, that, until the said tribes or nations shall choose to remove, as by this act is contemplated, they shall be protected in their present possessions, and in the enjoyment of all their rights of territory and government, as heretofore exercised and enjoyed, from all interruptions and encroachments." This is, perhaps, the first attempt, by an act of Congress, to operate directly on the legislation of the States, which has been made since the institution of this Government, and it is to be hoped it will be the last. The avowed intention is, to interpose the power of the Federal Government to prevent the action of the laws of the States in question, within their own acknowledged boundaries, and to exempt from the influence of those laws a portion of the population. It has sometimes happened to States that acts of their Legislatures have been de- Page: [8]9 clared unconstitutional by the Supreme Court of the United States; and consequently, inoperative, and void in the particular case in question. The Supreme Court, however, act on a single statute at a time; but, in the mode proposed by the amendment in question, Congress may sweep off whole codes in a moment by a single clause. It is plain, then, if the bill pass with this amendment, that the laws of the States and of the Federal Government must come into collision. The bill speaks of tribes residing within any State or Territory, and with whom the United States have existing treaties. Treaties exist between the United States and Indians residing within the States of New York, Georgia, Alabama, and Mississippi, and the Legislatures of all these States have extended all, or a part of their laws, over those Indian tribes respectively. The collision which will arise between the laws of the Federal Government and of the States, will extend to four of the States of the Union. And if the federal law be constitutional, the President of the United States will be bound by his oath of office to see that it shall be faithfully executed. And gentlemen have told us that, if milder means will not answer the purpose, the strong arm of the Government must be employed, by which I understand that a military force must be arrayed against the contumacious States, to bring them into subjection, and to compel them to acknowledge the rights of the Indian tribes to live under their own usages, government, and laws. Let us see what will be the practical operation of this Indian protective system. According to the usages and laws of the nations of Indians residing within the State of New York, witchcraft is declared to be a crime, and capital punishment is to be inflicted upon those who are found guilty. But, by the laws of the State of New York, extended over those tribes, the infliction of such punishment by any one of the tribe, for such supposed offence, is declared to be murder, and the offender is liable to be convicted, and to suffer the penalty of the law in such cases. Here is a conflict of laws, and under the proviso in question, the Indian tribe, upon complaint made to the Executive of the United States, to see that they should be protected in the enjoyment of their own government, usages, and laws, and upon the refusal of the State of New York to yield to the persuasion of the President of the United States, and to surrender all claim to govern the people within her limits -- the strong arm of this Government -- its military force must be interposed to protect the Indian tribes, and [added text: 2 ] Page: [9]10 to see that they enjoy the usage of punishing their own witches in their own way. By a law of the Cherokee Republic, a plurality of wives is authorized: but, by the laws of Georgia and Alabama, this is regarded as a crime, and those who are guilty, are liable to severe punishment. But, by the guarantee contemplated in this proviso, if the laws of Georgia or Alabama were to interpose between the privileged Cherokee, and the enjoyment of his fifty wives, all that would be necessary to ensure that enjoyment, would be to call on the Executive Department of this Government, point to the guarantee -- claim its execution -- and if nothing else will do, the claims of Georgia and Alabama must be silenced by the military force of the nation. By a usage of the Choctaws, homicide is punishable with death in all cases, with a single exception, which exception is when one man kills another in a ball play. But, by the laws of Mississippi, it is excusable when done in self defence, and to save the life of the person attacked. But if the laws of that State were to interfere to prevent the life of an innocent man from falling a sacrifice to this absurd and barbarous usage, the laws of the Union would be violated, and the State must submit to chastisement for an act of humanity. But the argument on the other side shows this proviso to be unnecessary. For, it is insisted, that, by virtue of treaties now existing, the separate existence, as nations of the several Indian tribes within the limits of those States, is acknowledged, and that, in their character of nations, the United States have promised them protection; and that, by virtue of the obligation of treaties, this protection ought to be extended to them. If such treaties exist, and they are the supreme law of the land, then no additional supremacy can be conferred by the proviso, and no additional obligation can be imposed on the Executive department of the Government, to do that which is already enjoined by treaties. The argument, therefore, shows all farther legislation to be unnecessary. The Cherokee tribe of Indians having erected an Independent Government within the limits of the States of Georgia and Alabama, and those two States claiming the rights of exclusive sovereignty within their respective limits, extended their laws over those Indians. Under these circumstances, an appeal was made to the Executive of the United States by those Indians, claiming to be protected in the enjoyment of the government which they had established for themselves. Page: [10]11 The question was then submitted for the decision of the President of the United States, and, under the oath which he had taken to support the Constitution, he determined that no such government could be erected without the consent of the States within which it was formed. The question is therefore decided as to them. If it was unconstitutional, under the state of things which then existed, it would continue to be unconstitutional under the proposed amendment; and it would never do for Congress to reconsider a question of constitutional, law decided by either of the other distinct and independent departments of the Government, upon a question properly submitted to such departments, and reverse that decision. If they can do so in regard to the Executive, why not in regard to the Judiciary? For both the Executive and Judiciary derive the power of decision from the same source, not because it is expressly said in the Constitution, that the Judiciary or the Executive shall disregard a law not made in conformity to that instrument, but because each is required to take an oath to support the Constitution as the paramount law; and when any statute or any treaty is made or passed contrary to its provisions, each of those departments before which the question may arise, is bound to declare it a nullity. The Executive has, then, upon the matter fairly submitted to it, decided the constitutional question, as to the government erected by the tribe of Cherokees, and no law which we can pass, can possibly change the principle of that decision. It rests upon the authority of the Constitution itself. But it seems, that for the sake of doing justice to Indian rights, all things are to be resolved into their original elements, and we are called upon to decide the subject before us according to principles of abstract justice. The vast country which now forms the United States, with the exception of Louisiana, was, at one time, subject to the jurisdiction and sovereign dominion of Great Britain. She claimed it by right of discovery and conquest, and, added to this, the superior claims of an agricultural over a savage and barbarous people. This title has always heretofore been considered sufficient by the jurist and the statesman, and no inquiry beyond it has been thought necessary or even tolerable; and it has been left to the sympathies -- the mistaken sympathies, as I must call them, of the present day, to call up this title of the savage from its sleep of ages, and urge it on this floor and elsewhere, as prior and paramount to that of civilized nations. Page: [11]12 If gentlemen are really in earnest in the opinions which they have expressed; if the remonstrants who have loaded your table with their petitions, are really in earnest; if the pamphleteers who have inundated the country with abuse upon the present administration, and poured out the phials of their unsparing wrath upon Georgia, are really in earnest; if they really believe that civilized man has lawlessly usurped the territory and dominion of the barbarian, then let them show their sincerity and consistency, by asking for this much injured and almost extirminated [exterminated] race, that ample measure of justice which the magnamity [magnanimity] of their professions purport; let them not only ask, but do justice; call them back from the deep wilderness to which they have been driven; restore to them this fair and happy land, from which they have been cruelly expelled; give them up your fields, houses, cities, temples of justice, and halls of legislation. All I have to ask, is, that those whose sense of justice is with them a principle so prevailing, shall begin this retrograde to barbarism at home; that they shall first surrender that which more immediately concerns themselves, and over which they would seem to have a more direct control, and then call upon us to follow an example so worthy. But I think it is not difficult to forsee [foresee] that this work of restoration would not proceed far before the pretended philanthropist would quarrel with his own rule of abstract justice, and content himself with permitting things to remain as they are. But it is said it was the policy of Great Britain, and most of her colonies, to procure cessions of territory from the Indians by treaty; and, of course, in the settlement of this great account of domain and empire with the red man, credit should be allowed for all that was thus acquired. But, according to the rule of hard morality and abstract justice, which we have been taught on this occasion, by the advocates of Indian rights there is but slight difference in the title to that which had been acquired by conquest in the strictest sense of the term, and that which had been acquired by treaty and cession. For I am sure, that, if the history of those transactions could be truly known, it would appear, that, if the one originated in force, the other was obtained by fraud. In the one case, the physical strength of the Indian, his daring courage, and his knowledge of his own terrible mode of war, placed him upon something like terms of equality with the white man. Whilst, in the other, his ignorance of negotiation, and the arts, and strategems [stratagems], and deceptions, always used upon such occa- Page: [12]13 sions, rendered him a blind and easy victim. In the rotundo [rotunda] there are two alto relievos intended to commemorate important events in the history of this unfortunate people, and which, in some degree, illustrate the truth of what I have said. In the one, 1682, the great founder of Pennsylvania is represented in the act of presenting a treaty to his red brethren: with his right hand he grasps that of the chief, with his left he unrolls the treaty. The pipe is withdrawn from the lips of the old Indian, and he is all attention to the earnest talk of the younger. You can see that the whole savage is tamed, and his terrible spirit, the only power with which nature had endowed him, to preserve unmolested the ancient possessions of his fathers, is subdued and conquered by the irresistible superiority of the white man, and that he is ready to subscribe whatever terms may be dictated. And we cannot help thinking, that, without much violence to historical truth, another figure might have been introduced into the group, and we almost expect to see, half concealed behind the lofty elm which overshadows them, the well trained pedestrian ready to set off and measure, with the velocity of a bird, the day's journey which was to bound the ceded territory.* In the other we behold that immortal hunter of Kentucky, Daniel Boon, not only immortal from his own deeds and the monument here erected to him, but married to a more induring [enduring] immortality in the verse of Byron. We behold him engaged in mortal combat against fearful odds. Having planted his foot on one of the enemy who had fallen before his rifle, he fearlessly braves the uplifted tomahawk that gleams in the hand of the surviving savage; and we tremble lest the deadly weapon should descend ere the intrepid Boon can strike. And thus it is with the poor ill-fated Indian. In the one case he is subdued, and blindly compelled to yield up his country by the superiority, and blindly compelled to yield up his country by the superiority of mental strength. In the other it is the issue of more doubt- [ Note: * I have heard it said, that, in one of the treaties negotiated in early times with a tribe of Indians residing in Pennsylvania, and by which a large tract of country, situate on the Delaware river, was acquired, the agreement was, that the Indians ceded to the proprieter [proprietor] of the colony so much territory as lay on the river above a certain point, and as far up as a man could walk in a day. The fact was, that, between the points, the river made a great bend, and much could be gained to the proprietor by walking in a direct line. This was the course pursued. But this was not all. The most expeditious pedestrian was procured to walk the boundary. The Indians set off with him, but long before night they were tired out, and he was left to determine the distance as he pleased. ] Page: [13]14 ful controversy. But the melancholy truth is established, "that the day on which the white man set his foot on there shores, the destiny of the red man was fixed forever." But how has title derived from Indian tribes been regarded, when urged by individuals in courts of justice? Has it not been considered utterly worthless? How has it been regarded by States, when they were interested in insisting on it? Have they not held it in such low estimate, that not one has ever relied on it as conferring even a shadow of right? A few facts will show this. Disputes with respect to territory and territorial jurisdiction have at various times arisen between different States of this Union. Pennsylvania and Virginia, Pennsylvania and Connecticut, Virginia and North Carolina, South Carolina and Georgia, have contested questions of this kind with each other. And controversies of this kind are always conducted with the greatest possible care. The best talents are employed; the greatest research takes place; every color of claim which promises the least avail is set up, and every reason and every argument are urged. Is it known, that, upon any such controversy, a treaty or cession from an Indian tribe, however ancient, has ever been set up to turn the scale even in a case of doubt? I confess that, if such a case has happened, I have not heard of it. On the contrary, those disputes have always turned upon the terms and dates of the charters from the Crown, and the external objects called for as designating their locality, and show the opinions of all those concerned, that the title, and the only title, originated with those charters. For surely, in some of those many disputes, priority of Indian cession might have been made a question, if it had not been for the universal opinion that it would be unavailing. But how did Great Britain regard the rights of Indians? And before I enter upon this part of the subject more particularly, it would be well to state the question which arises out of the acts of the State Legislatures, by which the Indians within their limits are subjected to the laws of the State. Those States do not claim the right of depriving the Indians of any title which they may have to the land or territory they occupy; or of disturbing them in the possession or enjoyment of any other property which belongs to them. Those States only claim the right to legislate over them, as a part of the population subject to their laws. With this question in view, let us inquire what was their situation whilst this country was subject to the juris- Page: [14]15 diction of Great Britain. By the proclamation of the 7th of October, 1763, the following provision is made on this subject: "And whereas it is just and reasonable, and essential to our interest, and the security of our colonies, that the several nations or tribes of Indians with whom we are connected and who live under our protection should not be molested or disturbed in the possession of such parts of our dominions and territories, as not having been ceded to, or purchased by us, are reserved to them, or any of them, as their hunting ground." "And we do, hereby, strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements whatever, or taking possession of any of the lands above reserved, without our special leave and licence for that purpose, first obtained." The first remark which occurs on the provision in this proclamation with regard to the Indians, and the reservation to them of hunting grounds is, that those very hunting grounds are regarded in the instrument itself, as the " dominion and territories " of the Crown; and the Indian right as an emanation from the Crown; and the power to grant "leave and licence" to any person to purchase or to take possession of the reserved lands, is clearly and distinctly recognised [recognized] . Then the question occurs, could Great Britain, consistently with the principle expressed in the proclamation of 1763, legislate over those Indians? or, in other words, could she legislate over every individual of whatever color, habits, or nation, resident within her acknowledged " dominions and territories? " I believe that no one who has any knowledge of the theory of the British constitution, will say that she could not so legislate. Lord Mansfield, in delivering the opinion of the court in the case of Campbell vs. Hall, reported by Cowper, lays down the following propositions: "That the law and legislative government of every dominion equally affects all persons and all property within the limits thereof, and is the rule of decision for all questions which arise there. Whoever purchases, lives, or sues there, puts himself under the law of the place. An Englishman in Ireland, Minorca, the Isle of Man, or the plantations, has no privilege distinct from the natives." "The 6th and last proposition is, that, if the King (and when I say the King, I always mean the King without the concurrence of Parliament) has a power to alter the old and to introduce new laws, in a conquered country, this legislation being subordinate, that is, subor- Page: [15]16 dinate to his own authority in Parliament, he cannot make any new change contrary to fundamental principles. He cannot exempt an inhabitant from that particular dominion, as, for instance, from the laws of trade, or from the power of Parliament, or give him privileges exclusive of his other subjects, and so in many other instances that might be put." The question in the case in which these propositions are laid down, arose out of the proclamation of 1763, in regard to the inhabitants of Grenada, the government of which was erected by that proclamation. And here the principle is not only asserted, that the law and legislative government of every dominion is supreme over all persons and property within its limits, but that the King himself cannot exempt any inhabitant from the power of Parliament. In regard to the other colonies in America, the power to legislate was conferred by the charters from the Crown; and, I believe, no doubt was ever entertained, during the existence of the colonial government, that the legislatures thereof had full power to enact laws for the government of the Indians within their respective limits; and if a question arose at all, it could not have been a question of power, but a question as to what kind of law was proper and expedient in the particular case. And, accordingly, we find that Massachusetts, Connecticut, New Hampshire, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, and Georgia, all legislated on the subject of Indian affairs, and no exception seems ever to have been taken to the exercise of that power. Thus stood the matter as to the power to legislate over Indians within the limits of the colonial governments prior to the Revolution. A power undisputed and indisputable. The United States declared themselves independent on the 4th day of July, 1776. The arms of the Union were victorious. Great Britain was conquered. This conquest was followed by a definitive treaty of peace in 1783. This treaty acknowledged the independence of the United States. And all our statesmen and jurists consider that the independent sovereignty of each State in the Union, respectively, commenced, and must be dated, to all legal purposes on the 4th day of July, 1776. But it has been said, that whatever was gained by conquest belonged to the conqueror: that the United States were the conqueror, and that all acquisitions accrued to them. I know that this argument was once urged by some of the small States, who had no unpatented lands, as a reason why they should Page: [16]17 participate equally in the vast regions of ungranted lands, situated within the chartered limits of the larger States. But I never knew it to be urged as a reason to show that sovereignty and legislation were a joint acquisition, and belonged, by right of conquest, to the United States, and not to the States respectively. On the contrary, I believe it has never been doubted, much less denied, that the States, respectively, from the declaration of independence, possessed every attribute of sovereignty. That each State was sovereign within her own limits, to the same extent that Great Britain was before the declaration of independence. The capacity to affect, by her legislative government, all persons and all property within her limits, is an essential attribute of that sovereignty which belongs to every State. I must conclude, therefore, that the Indians within the limits of the States did not form an exception, and that, subsequent to the declaration of independence, the States had the power to legislate over them. But it is insisted that, by the articles of confederation, the States surrendered up this power to Congress, and that any exercise of such power by the States after that was void. One of the clauses of that instrument relied on in support of this argument, is in these words, "That Congress shall have power to regulate the trade and manage all affairs with the Indians not members of any of the States; provided that the legislative rights of any State within its own limits are not infringed or violated." During the continuance of the articles of confederation in the years 1785 and 1786, the treaties of Hopewell with the Cherokees, Choctaws, and Chickasaws, were entered into. And, without going into the particular stipulations of those treaties, which is unnecessary in the examination of the power vested in Congress under the clause of the articles of confederation in question, it may be taken for granted, that the treaties either infringe the legislative rights of the States, within the limits of which the tribes with whom the treaties were made resided, or that they do not so infringe those rights. If the latter, the States are left free to legislate as if no such treaties had been made. If the former, then Congress had no power to enter into any stipulation with the Indian tribes, by which the legislative rights of the States within their own limits would be infringed or violated; and such stipulations are without authority, and, as regards the States affected by them, are absolutely void . What are the legislative rights of a State? Are they not those rights, or rather that power, by [added text: 3 ] Page: [17]18 which a State dictates the rule of civil conduct to every rational being within her territorial limits? This power is expressly reserved by the clause in question -- not in regard to a particular district, and to a particular description of people, but throughout her whole boundaries, and over every subject within them. The proposition, therefore, for which I insist is, that, if the treaties referred to abridge this legislative power in regard to any description of people residing within the limits of the States, as to the States themselves, these limitations of power are void, and the States may legislate as if no such limitation had been imposed. And the whole argument on the other side against State legislation over the Indians, which is made to depend upon the stipulations of the treaties of Hopewell, goes upon the very ground, that by those treaties the legislative power of the States is limited; which, as I have endeavored to show, is a self-destroying argument. But the question arises, were those treaties binding on the United States? I answer, unquestionably they were. That the United States were bound, either to execute the treaty specifically, or, if they had not power to do that, they were bound to give compensation. And it has been admitted, that, if the United States were under two obligations, that which was first in point of time must be specifically executed, if both cannot be so executed; and that the subsequent obligation can only be discharged by indemnity, and that good faith requires no more. Apply this rule to the present question. Was not the obligation on the United States, commencing with the articles of confederation themselves, to preserve from all violation and infringement the legislative rights of the States within their limits, prior to any stipulation inconsistent with such obligation in the treaties above referred to? and, therefore, according to the rule as admitted, the States must be preserved in their right and power to legislate; and from any injury arising from this cause to the Indians, they can only call on the United States to indemnify them. It is insisted that those tribes of Indians are nations capable of making treaties. If so, surely it would be proper for the States to say, in this controversy, to those tribes of Indians, you were bound, when you entered into treaty stipulations with the United States, to know the limits of their power; and if in those stipulations they have exceeded their power, you are properly chargeable with the knowledge that they did so exceed their power. In a case of this kind Page: [18]19 compensation is complete justice. If A covenant to convey to B a certain house and land, to which A has no title, and cannot procure one, so as to comply with his covenant, the only satisfaction which B could obtain would be damages for the breach of the contract. If B, in the case supposed, had no notice of the want of power on the part of A to make the conveyance, it might be considered as a hard case that he could not obtain specific performance; but if he was chargeable with such notice, then ample justice would be done him by compensation in damages. But it is said, according to the articles of confederation, that "the United States in Congress assembled shall have the sole and exclusive right and power of determining on peace and war;" and that, in the Constitution of the United States, power is also given to the United States to declare war, and that the treaties in question are valid under these powers. I admit, that, whenever the relation of war arises between the United States and any other party, whether it be a tribe of Indians; the leaders of an insurrection, for insurrection might be so formidable as to create the relation of war; or an independent nation; the United States may conclude such war by a treaty of peace. But surely this is a limited power, and the United States could not, constitutionally, agree to every kind of condition which might be proposed; otherwise it would follow, that, whenever war existed, the President and Senate would have the constitutional power to destroy the rights of any or every State in the Union. And yet all will agree, that all the departments of the Government of the United States combined, could not take away any of the reserved rights of the States. Thus, if in a treaty of peace made with an Indian tribe residing within the limits of the State of Georgia, the right of that State to legislate over those Indians could be taken away, what would prevent the treaty-making power, if so disposed, from taking away the power of that State to legislate over the Dutch, or Irish, or slaves, within the State. If the power of abridging the legislative rights of the States is once admitted to exist in the General Government, under any circumstances of fact, those circumstances may always be brought about, and the States would, ere long, hold all their powers at the will of the United States. Suppose that, in the treaty concluded by our Commissioners at Ghent, a condition had been inserted that the State of Pennsylvania should not exercise the power of legislation over the Page: [19]20 English resident within the limits of that State. A state of things might have existed which would have rendered it imprudent and impolitic for Pennsylvania to assert and exercise the power. But, as soon as that state of things passed away, and she was relieved from the necessity which might have induced her to abstain from the exercise of that power, could any one contend that the treaty could have any legal and binding force upon her? On the contrary, would it not be void as to the State from the beginning? And if any obligation arose out of such a treaty, would it not be a matter to be adjusted by the United States, and in which Pennsylvania would have no concern, any more than any other State in the Union? Suppose the United States were to conclude a war with an Indian tribe, by which they would stipulate, that, notwithstanding the tribe resided within the limits of a State, that State should not legislate over them, but that they should be governed exclusively by their own laws and usages? This would be a case of express stipulation: and while the nation were formidable; while they were capable of exciting terror and alarm among the people of the State within whose limits they were situated; the State, out of motives of policy, would not attempt to exert her legislative power over them; not because the constitutional power could be surrendered by the treaty; not because the constitutional power to legislate did not exist; but because safety required that it should not be exercised. But if the tribe from being formidable were reduced to insignificance, as so many tribes, once so terrible, have been, surely the State could assert her power over them, and compel them to submit to her laws, and that too without any release by the remnant of the nation or tribe to the United States. Whatever obligation rested on the United States would be a matter for them to settle, in which the State would have no more than a common interest with the other States. I know that this reasoning is unsatisfactory to those who refer the decision of this question to their feelings, to their magnanimity, and to principles of abstract justice. But I believe the history of Indian relations will show that this has always been the case. Whilst the tribes were warlike and powerful, no matter what were the stipulations of treaties; no matter how much those treaties infringed the legislative rights of the States; all acquiesced: all submitted. But as soon as they became reduced to a handfull [handful] ; as soon as their power was lost, and they were no longer formi- Page: [20]21 dable; they fell from the cognizance of the General Government, and became subject to the control and legislation of the States. What was the situation of the country with regard to Indian tribes before and after the adoption of the Constitution, when the policy of treating with them commenced? The whole frontier, from the Northern lakes to the Southern boundary of Georgia, enclosed by numerous tribes of warlike savages; terrible, not only from their numbers, but from their mode of warfare; sparing neither age, nor sex, nor condition. Under these circumstances it was not to be wandered at, that the whole population who were exposed to their ravages, and who had suffered from the tomahawk and scalping knife, should send up to the Government of the United States one universal cry for peace. These were not times for scrupulous examination of constitutional questions. And under such circumstances, if treaties were made which, by their letter, infringed the legislative rights of the States, whatever claim they may give to the Indian tribes for compensation or indemnity as to the United States, they cannot be obligatory on the States. And the time has now arrived when the forbearance of the States is no longer necessary in their opinion, and when it has become worse than visionary to look upon those tribes as independent nations. They have, therefore, extended their laws over them, which is nothing more than the exercise of a power which they always had, and which the United States could not take away, and which the States could not lose by not using. But, it is said, that the treaties with the several tribes, concluded at Hopewell, and all subsequent treaties, are valid and binding under the following clause of the Constitution: "All treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land." A treaty cannot be said to be made under the authority of the United States, when its provisions are contrary to the Constitution. But when it is consistent with the constitution, then it is under the authority of the United States and valid. I have endeavored to show that the treaties in question, so far as they affect the legislative sovereignty of the States, are not consistent with the Constitution; and as respects the States, they are not binding on them. But, it is said, that the following clause in the Constitution of the United States, "Congress shall have power to regulate commerce with foreign nations, among the several States, and with the Indian Page: [21]22 tribes," contains no such reservation in favor of the legislative rights of the States. I know that such is the doctrine of those who learn the thousand articles of their Constitution from the precedents with which the records of Congress abound. And I know, too, that its sure and inevitable tendency is to unlimited power; and the day is not far distant, when the omnipotence of an American Congress will be as little startling, even to our ears, as the omnipotence of a British Parliament. I tell you, Sir, this doctrine is rapidly gaining ground, and if there exist on the part of the States, respectively, no original, ungranted constitutional power to interpose for the purpose of arresting the progress of the evil, its march will be triumphant; not because it addresses itself to our patriotism, or our love of the true honor and glory of our country, which consists in the government of a written Constitution, but because its patrons carry in both hands the purse of this nation, and buy up the disciples of their faith. And how is that purse supplied? By a levy of two-thirds of all the revenue of the United States, not directly, but indirectly, upon the industry of the South and the Southwest, and thus is the fund created by which this war against our most sacred rights is carried on. And, by whom, and by what power, is this enormous exaction made? By an interested majority in Congress, acting on this express principle, that they have all power, and are every thing; and that the States, respectively, have no power, and are nothing. And the latter have even become familiar with the cry of treason, sounded from these walls against them, because they have dared to say that the majority in Congress had trespassed upon the sacred powers which they had never granted away Is not this consolidation? Is not this unlimited power? Is it not tyranny? What is the relation which is thus created? Is it not the most odious which can possibly exist? That which exists between the majority who demand and receive, and the oppressed minority who are compelled to pay. Was not this the relation which existed between the Colonies and the Parliament of Great Britain? Was not that the subject of complaint in those manly remonstrances which our ancestors presented at the foot of the British throne? Did they not complain that Parliament claimed the right to tax them in all cases whatsoever? Did they not remonstrate against that power? And what answer did they receive? And what answer has the injured South received from this majority in Congress? Are they not the same? An unqualified denial, almost without a hearing. But I have Page: [22]23 heard gentlemen say the majority will relent; seeing that their measures operate oppressively on a particular portion of the people, they will repeal them. Not until their interest changes: for, "when self, the wavering balance shake, 'tis never right adjusted." And the marble columns which surround us compared to a drop of water, is but a feeble comparison to show the unyielding character of an interested majority to the petitions, and prayers, and remonstrances, of the oppressed minority; and, unless that interest change, the drop may fall, and fall until eternity's sun shall go down, and not one particle of that human marble will dissolve. No, Mr. President! the power being once gained, the precedent being once established, that majority will claim the right to tax us in all cases whatsoever! The purse which we are every day emptying will be filled again, and from the same source. And with a few miserable dollars of the millions wrung from the cultivators of the soil, judiciously laid out, friends enough will be obtained, even amongst those who are plundered, to preserve this system. But, to return to the argument, from which I confess I have wandered too far. The argument is, that in the clause of the Constitution conferring upon Congress the power to regulate commerce with foreign nations, among the several States, and with Indian tribes, contains no reservation in favor of the legislative rights of the States. And is it indeed true that the States have no powers but such as are expressly reserved in the Constitution of the United States? Is it true that the States, respectively, possessing all the power, all the sovereignty, and granting away a portion of it to another, that the grant will carry the whole, without an express reservation in the instrument as to the residue? Surely this was not the understanding of those who framed, or those who adopted the Constitution. On the contrary, did they not say, the States have now all the power where it is, in the States respectively? If the friends of the Constitution had said any thing else; if they had said what is now insisted on, that instrument, instead of being adopted by small majorities, would have been rejected by all. The Constitution of the United States was not made by the people of the United States, in mass, each one of all that mass having individually the same voice, the same power and influence to make, to adopt, or to reject. On the contrary, it was the work of the States, in their sovereign capacity, and in Page: [23]24 which capacity the small numbers of the least State in the Union had as much power as the large numbers of the most populous State. Each one was sovereign: no one was more then sovereign. I will be excused for resorting to these first principles of our Government; for it is the duty of those who stand in the minority with respect to the powers claimed and exercised by the Federal Government, whenever a question of that kind arises, to resort to the Constitution itself, and to the principles upon which it rests; for this is their only safety. It was, emphatically, for the benefit of the minority it was made. The majority can take care of themselves. The grant of power in question to Congress is to regulate trade with the Indian tribes; and every power not necessary for the regulation of trade, so far as the Indians are concerned, remains with the States, not only upon the principles which I have mentioned, but by an express reservation, adopted from the most jealous caution, that all "the powers not delegated by the Constitution to the United States, nor prohibited by it to the States, are reserved to the States respectively, or to the people." And is it any more necessary, in the regulation of trade with the Indian tribes, that the power of the States to legislate over those residing within their acknowledged limits should be taken away, than that the power to regulate trade with Great Britain and France should take away from the States the power to legislate over Englishmen or Frenchmen residing within the limits of any of the States? But the Constitution expressly recognizes the power of the States to legislate over the Indians within their limits. The second section of the 1st article of the Constitution is in these words: Representatives and direct taxes shall be apportioned among the several States, which may be included in this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The intention of this section of the Constitution is to apportion direct taxes and representatives among the several States, and the standard by which that apportionment is to be regulated, is the amount of the population of the States. If the section had stopped thus, "Representatives and direct taxes shall be apportioned among the several States, which may be included within this Union according to their respective numbers;" then all Indians, and all other persons within Page: [24]25 the States, would have been included as a part of the numerable population; otherwise, why exclude "Indians not taxed," and two-fifths of the slaves. If these had not been included in the general expression, the exception was not necessary. Indians being, therefore, a portion of the population of the State, would it not be a strange and absurd proposition to say that the State could not legislate over her own population? But by what power is the tax, which is to make the distinction in regard to Indians, to be imposed? It must be either by act of Congress or of the State Legislature. It cannot be by act of Congress, because Congress, in the following clause, is prevented from imposing any such tax: "No capitation or direct tax shall be laid, unless in proportion to the census or enumeration heretofore directed to be taken." The taxing, therefore, by which Indians are embraced in the enumeration must necessarily precede any capitation imposed by Congress, and must necessarily be by State legislation. From these clauses of the Constitution, Indians within the States are regarded as a part of the population of those States, and a tax is contemplated which can only be imposed by State legislation over them. But there is another reason which shows that the tax to be imposed was not a tax to be imposed by act of Congress, but by act of the State legislation; and that is this, if Congress had the power to impose the tax, they might choose not to exercise the power, so that they could increase or diminish the numbers of the States at pleasure. And they might increase it for the purpose of direct taxes, and reduce it for the purpose of representation. The Indians resident within the State of New York, with whom the United States have held frequent treaties, and with whom they now have an existing treaty, differing but little in terms from those which exist in relation to the Southwestern tribes, have long since passed under the jurisdiction of that State, and one of them, belonging to the Seneca tribe, was actually convicted of murder in a court of the State for having put to death a woman, according to the usages of his tribe, for the supposed crime of witchcraft. And again, in another case, it was decided in the Supreme Court of the State of New York, that an Indian could inherit lands which had been granted in the name of his Indian ancestor; and although the decision of the Supreme Court was reversed by the Court of Errors, it was because there was no law of the State of New York which authorized a purchase from an Indian in the manner in which the purchase was [added text: 4 ] Page: [25]26 made in that case by the lessor of the plaintiff; clearly, however, acknowledging the power of the State to legislate in regard to Indians and Indian affairs. No complaint has ever been made by the friends of Indian rights against the State of New York, nor against any of the other States to the North or Northeast, for legislating over the Indians. Nor has any reason been assigned, nor can any be assigned, why a distinction should be made. It will not do to say that one State has legislated wisely and another unwisely. It is a question of power; and when that is decided, each State, in the exercise of the power, must be governed by its own discretion, as they are in every act of legislation. But here we are met by another formidable difficulty. It is said that, if the State of Georgia, or any of the old thirteen States, had the power to legislate over the Indians within their limits, yet none of the new States have that power, and that Alabama and Mississippi have transcended their constitutional powers in their acts of legislation in regard to those people. I confess it did not sound gratefully to my ears to hear it asserted on this floor that the State which I have the honor, in part, to represent, had been admitted into this Union with powers of legislation more limited than those which belong to other States. I had always supposed that she was admitted upon terms of perfect equality; at all events, so far as she had not voluntarily, in her own sovereign capacity, in convention, expressly agreed to an abridgment of her power. And upon this ground I am willing to place the argument. So far as the State, or the people of the State, in their highest sovereign capacity, in convention, have agreed to a limitation of their legislative power, and the limitation not inconsistent with the Constitution of the United States, the State, whilst that Constitution of her own adoption remains, must be bound by it. But what is the process of the reasoning on the other side? It is said that the fifth condition of the articles of agreement and cession between the United States and the State of Georgia, in 1802, contains the following provision: "That the territory thus ceded shall form a State, and be admitted as such into the Union, as soon as it shall contain sixty thousand free inhabitants, or at an earlier period if Congress shall think it expedient, on the same conditions and restrictions, with the same privileges, and in the same manner, as is provided in the ordinance of Congress of the 13th day of July, 1787, for the government of the Western territory of the United States, which ordinance Page: [26]27 shall, in all its parts, extend to the territory contained in the present act of cession, that article only excepted which forbids slavery." That the act of Congress of March, 1817, to enable the people of the Western part of the Mississippi Territory to form a Constitution and State Government, and for the admission of such State into the Union on an equal footing with the original States, contains the following provision: "Provided, that the same, when formed, shall be republican, and not repugnant to the principles of the ordinance of the 13th of July, one thousand seven hundred and eighty-seven, between the people and States of the territory Northwest of the river Ohio, so far as the same has been extended to the said territory by the Articles of Agreement between the United States and the State of Georgia, or of the Constitution of the United States." That the 3d article of compact in the ordinance of the 13th of July, 1787, is in the following words: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall for ever be encouraged. The utmost good faith shall always be observed towards the Indians: their lands and property shall never be taken from them without their consent; and in their property, rights, and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress. But laws founded in justice and humanity shall, from time to time, be made, for preventing wrongs being done to them, and for preserving peace and friendship with them." And the argument is, that the States of Alabama and Mississippi have been admitted into the Union upon the express condition that they well not legislate over the Indians within their limits; that this condition is binding upon those States; and that their laws, so far as the Indians are to be affected, are void. The first defect of the argument is, that it is not true in point of fact. The article of compact referred to authorizes laws founded "in justice and humanity" to be enacted in regard to Indians. Is not this the foundation of all legislative authority -- the right to pass laws founded in justice and humanity, and not to pass laws in injustice and inhumanity? But the question arises, who is to be the judge of what is just and humane? I insist that there is no limitation but the Constitution or legislative discretion. The same article of compact declares "that schools and the means of education shall forever be encouraged." Who is to be the judge of the manner and extent of that encouragement? The Legislature, unquestionably. There is Page: [27]28 no other rule than legislative discretion. And so it is in the other case; and Congress, or the treaty making power, might as well undertake to call the State to account for not properly exercising the power of encouraging schools and the means of education, as for not properly exercising the power of passing laws founded in justice and humanity in relation to the Indians. The argument has, therefore, no foundation in the true construction of the provisions in the different acts referred to. But as I consider my constituents as having a deep interest in the question which has been raised in regard to their powers as a State, I would not think myself justifiable if I did not investigate more at large the principle upon which the objection rests. By the Constitution of the United States, article 4, section 3, it is provided that "new States may be admitted by the Congress into this Union." What is a " State, " in the meaning of the Constitution? Does it not mean the people composing a political society, in their highest sovereign capacity? I take this definition of the term "State," from a paper of high authority -- the report of the Committee of the Virginia House of Delegates at the Session 1799 and 1800, to whom were referred the communications of various States relative to the resolutions of the Assembly of that State, of 1798, concerning the alien and sedition laws. The whole passage is in these words, "It is indeed true that the term States is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by those societies; sometimes those societies as organized into those particular governments; and lastly, it means the people composing those political societies, in their highest sovereign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconvenience is produced by it when the true sense can be collected with certainty from the different applications. In the present instance, whatever different construction, of the term States in the resolution may have been entertained, all will at least, concur in that last mentioned; because in that sense the Constitution was submitted to the States; in that sense the States ratified it; and in that sense of the term states they are consequently parties to the compact from which the powers of the Federal Government result." And in that sense of the term States, and in that alone, as I contend, has Congress the power to admit "new States" into the Union. Page: [28]29 Certainly Congress has not power to admit into the Union a political society so crippled by conditions that it would not answer to this meaning of the term. If so, then one States might be admitted into the Union upon condition that only one Senator, or none at all, should be sent to Congress to represent the State; or upon condition that the laws of the State should be subject to the revision of Congress; whilst another might be admitted upon condition of double representation in Congress. The moment, therefore, that power is granted to a society of people within the jurisdiction of the United States to meet in convention and form a Constitution for their own government, any conditions which may be added calculated to diminish the essential rights and powers of a State, are absolutely void. Among the powers essential to State sovereignty, is that of legislating over every rational being within the limits of the State, unrestrained except by the Constitution of the United States and the Constitution of the State itself. If, then, in the acts of Congress authorizing the people of the Western part of the Mississippi Territory to hold a convention, and admitting them into the Union, such conditions are imposed as diminish this essential right, those conditions are void. But I deny that any such conditions were imposed by those acts. But whilst I say such conditions would be void, there is one subject on which I wish not to be misunderstood. I take it to be true, that the principle of relation applies to new States admitted into the Union, and that, when they are admitted, the society forming them must be considered as having been endowed with the rights of sovereignty from the time when authority was given to hold a convention. If this be correct, then it would follow, that whatever restrictions, not inconsistent with the Constitution of the United States, this society, represented in convention, imposes on its own legislature, or the other departments of its organized government, in its own Constitution, must be binding upon it until that Constitution is changed. In the Constitution of the State of Mississippi there is the following provision: "Whereas it is required by the act of Congress, under which this convention is assembled, that certain provisions should be made by an ordinance of this convention: Therefore, this convention, for and in behalf of the people inhabiting this State, do ordain, agree, and declare that they forever disclaim all right or title to the waste or unappropriated lands lying within the State of Mississippi; and the same shall be and remain at the sole and entire disposition of the United States: Page: [29]30 and moreover, that each and every tract of land sold by Congress shall be and remain exempt from any tax laid by the order or under the authority of this State, whether for State, county, township, parish, or other purposes whatever, for the term of five years from and after the respective days of sale thereof; and that the lands belonging to the citizens of the United States residing without this State, shall never be taxed higher than the lands belonging to persons residing within the same: that no taxes shall be imposed upon lands the property of the United States; and that the river Mississippi, and the navigable rivers and waters leading into the same, or into the Gulf of Mexico, shall be common highways, and forever free, as well to the inhabitants of this State as to other citizens of the United States, without any duty, tax, impost, or toll, therefor, imposed by this State. And this ordinance is hereby declared irrevocable without the consent of the United States." According to this ordinance, made a part of the Constitution of the State of Mississippi, that State, acting in its highest sovereign capacity in convention, has solemnly disclaimed all title to the waste and unappropriated lands within the State, and declared that they shall be at the disposal of the United States; that they should not be taxed by the State for any purpose, until five years after the sale thereof by Congress; that no lands, the property of the United States, should be subject to taxation; that the lands of non-residents should not be taxed higher than those of residents; that the river Mississippi, and the navigable waters emptying into it, and into the Gulf of Mexico, should remain common highways, without any duty, toll, &c. [et cetera] to be imposed by the State; and that the provisions of this ordinance should remain irrevocable without the consent of the United States. The point on which I wish to be understood is, that, as far as the State has bound itself, whilst acting in convention, the different departments of its Government are unquestionably bound whilst that Constitution remains. The question whether one convention can, by particular provision, act in derogation of the powers of subsequent conventions, is one which it is unnecessary to discuss. But whilst I admit that the State, in all its departments, is bound as far as it has restricted itself, yet surely it cannot be contended that it is bound beyond that. The Constitution which the people of that State framed was submitted to Congress; and they admitted the State, with that Constitution, into the Union. There is nothing in that instrument which takes away Page: [30]31 the power to legislate over the Indians, or modifies that power in any particular. The conclusion, therefore, clearly results, that they have the same power -- are subject to the same limitations; that the United States have no more power in relation to those States than in relation to either of the thirteen original States; that they are bound by all the limitations, as it regards the one class of States which obtain in relation to the other. In short, that all the States are upon the same footing, to all intents and purposes; and that their powers of legislation are the same in regard to all the free population of the State. I have done. My principle object was to vindicate the right of the State of which I am one of the representatives to legislate over all the population within her limits. How I have succeeded in the humble effort which I have made, will be for the Senate, and all others interested in the question, to decide.