CHAPTER XV.

1830.

MR. WIRT EMPLOYED AS COUNSEL FOR JUDGE PECK ON HIS IMPEACHMENT.— ENGAGED FOR THE CHEROKEES.-HISTORY OF THE CHEROKEE CASE. CORRESPONDENCE IN REGARD TO IT WITH MR. MADISON AND JUDGE CARR.IS ASSAILED IN THE PAPERS FOR TAKING A PART IN THIS CASE.— HIS VIEWS OF HIS DUTY IN REFERENCE TO IT.-PRESENTED AS A CANDIDATE FOR THE HOUSE OF REPRESENTATIVES.-ADDRESS TO THE STUDENTS OF RUTGERS COLLEGE.-ADDRESS IN BALTIMORE ON OCCASION OF THE FRENCH REVOLUTION OF JULY.

MR. WIRT was now employed as counsel in two causes which, during the present and the ensuing year, largely attracted the public attention. One of these was the impeachment of Judge Peck by the House of Representatives. The other was the celebrated Cherokee case which occupied so conspicuous a place in the debates of Congress, and which, more than once, found its way into the Supreme Court.

The controversy between the State of Georgia and the Cherokee tribe of Indians fills an eventful page in the political history of this period. It is memorable for its excitements, its influence upon the feelings of a large section of the Union, and for the extraordinary proceedings to which it gave rise.

The Cherokees were a large and powerful tribe, who occupied a tract of country which embraced a portion of the territory now lying within the limits of Georgia, North and South Carolina, Tennessee and Alabama. There they had dwelt from time immemorial, a warlike and independent nation.

Before and during the war of the revolution, they were engaged in frequent hostilities against the white population of the neighboring states. In the course of these hostilities they were subject to severe reprisals. On one notable occasion, a combined attack was made upon them by the troops of North and South Carolina and Virginia. They were driven from their habitations, several of their villages were burnt, and a portion of their terriVOL. 2-24*

tory occupied by the assailants, who made their possession sure by the erection of fortifications. This invasion led to the negotiation of treaties, by which the tribe acknowledged the conquest, and ceded to the states, within whose chartered limits their territory lay, the lands which were thus conquered from them. These treaties were negotiated in 1777. That which concerned Georgia and South Carolina, known as the treaty of "Dewitt's Corner," was made by commissioners duly appointed by those two states respectively. I have referred to this treaty, because it is said to be an authentic foundation to the claim of Georgia over a part of the Indian territory.*

The result of this invasion and of the treaties which ensued, was to force the tribe into the more southern region, and to increase their numbers within what was then embraced by the Georgia charter.

After this treaty, that portion of the tribe which still remained on the conquered territory, it was affirmed, held their occupancy only in subordination to the authority of the states within whose borders they were.

In the year 1785, the old Confederation negotiated, with these Indians, the treaty of Hopewell. This was a treaty which terminated a war. It stipulated for an exchange of prisoners; established a species of guardianship over the tribe; bound the Federal Government to protect the tribe against the intrusion of the whites, and finally conferred upon the tribe the privilege, if they chose to exercise it, of sending a deputy to Congress.

Georgia protested against this treaty,-holding that the Confederation was not competent to treat with Indians within the State limits. The subject of this protest was considered by Congress. It was decided against the State, and Georgia acquiesced.

After the Constitution of the Union was adopted, General Washington negotiated, in 1791, the treaty of Holston with these same Indians. This was, like the former, a treaty of peace and friendship. It was also a treaty of limits and cession. It, more explicitly than the former treaty, bound the Government to the duty

*The opponents of the Georgia claim have denied, it is proper to say, that any portion of the land ceded by the treaty of Dewitt's Corner, lay within the chartered limits of that State. They described it as entirely within the boundaries of South Carolina.

of protection and guardianship over these primitive people. It announced the strong desire of the Government to see them advance in civilization,-" to become herdsmen and cultivators, instead of remaining in the state of hunters," and engaged to furnish them implements of husbandry. An important article of this treaty "solemnly guaranteed to the Cherokee nation all their lands not therein ceded."

In due succession, in a course of more than thirty years from the date of this treaty, thirteen other treaties have been ratified by the Federal Government with the same tribe. They exhibit frequent cessions of territory by the Indians, and contain repeated recognitions of the obligations of the treaty of Holston and renewals of the guarantee. The cessions of land made by these treaties, have generally enured to the special benefit of Georgia. From time to time, she has found portions of her chartered domain thus disembarrassed of her Indian population.

Georgia originally comprehended within the limits of her charter, all that tract of country which now constitutes the states of Alabama and Mississippi. This territory the State ceded to the United States in the year 1802. The cession was made, amongst others, upon two conditions. The first, that the United States should, at their own expense, extinguish, for the use of Georgia, the Indian title to her lands, within the remaining limits," as soon as it could be done peaceably and on reasonable terms." The other condition was, that the states to be formed out of the ceded territory should conform to all the articles of the ordinance of 1787, excepting that one relating to slavery. The third article of this ordinance enacts, "that 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 shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress : but laws, founded in justice, shall, from time to time, be made for preventing wrongs done to them, and for preserving peace and friendship with them.”

We may pause in this narrative to remark that, up to this stage the case discloses the following points as settled between the parties to these transactions:

1st. That Georgia, in 1777, regarded the Cherokees so far an independent tribe, as to open treaty negotiations with them for the cession of territory which the State then occupied by military force and claimed by right of conquest.

2d. That, in 1785, the State objected to the right of the old Confederation to treat with Indians within her chartered limits, claiming that to be her own exclusive prerogative;—which objection was overruled by Congress, and the decision acquiesced in by Georgia.

3d. That from this date, and after the Constitution was adopted, treaties manifold were made with this tribe of Indians by the General Government, without dissent or protest from Georgia. Which treaties mainly enured to the benefit of Georgia; guaranteed full protection to the Indians, in the enjoyment of their lands; were made, in part, with the agency of Georgia in the national Senate; and were, by the Constitution, the supreme law of the land.

4th. That Georgia, in 1802, surrendered to the United States a large tract of country on which these Indians resided, with an express and careful provision, in their behalf, that the utmost good faith should be observed towards them, and that neither their lands nor property should be taken from them without their own consent, nor their rights be ever invaded or disturbed.

5th. That the United States and Georgia agreed by formal compact, at this date, that the former should extinguish the Indian title in the lands of the latter, as soon as it could peaceably be done on reasonable terms, thus pointedly stipulating for the exercise of the treaty power of the Union with the tribe.

These proceedings would seem to establish conclusively the two great principles which were to control the decision of the controversy. The one, that the right of occupancy belonged to the Indians, and never could be terminated without their consent. The other, that the Federal Government alone had control over the subject.

So far, the case may be said to present no difficulty. Its embarrassments arose in the subsequent stages of its history.

The Government had undertaken, by the compact of 1802, to extinguish the Indian title for the benefit of Georgia. To the performance of this stipulation there was no limit of time, but there was a clear obligation to use all proper and reasonable exer

tions to that end, and, particularly to abstain from doing anything that might impede or frustrate it.

From an early period after this compact, the scheme of providing a new territory beyond the limits of the states, for the final settlement of the Indian tribes, was more or less distinctly announced. In 1808-'9 Mr. Jefferson had this subject before him, in a proposition to establish a portion of this Cherokee tribe west of the Mississippi. This suggestion gradually expanded and it finally assumed the shape of an organized and broad scheme of policy under the administration of Mr. Monroe. Large tracts were purchased, beyond the frontier of the states towards the borders of Mexico, and suitable provision was made for the transfer of the tribes to this region. In 1817, one-half of this tribe of Cherokees, induced by the persuasions and influence of the Government, emigrated beyond the Arkansas, and there established themselves upon a favorable location under circumstances altogether auspicious to their comfort and welfare.

This removal and settlement of the Indians, upon a territory adapted to their wants and free from the possibility of future annoyance from the claims of jurisdiction by the states, will always be regarded as a measure which reflects the highest honor upon the wisdom and humanity of the nation.

In the case of the Cherokee tribe residing within the limits of Georgia, we have to notice a very remarkable fact, to which we may trace all the difficulties which have beset that subject. Whilst the Government liberally and carefully pursued its policy of removal with nearly every other tribe of Indians in other states, it seemed to have almost entirely lost sight of its engagement with Georgia, and to have devoted itself with a somewhat conspicuous assiduity, to the labor of rendering the removal of those people from that state, almost an impossible achievement. A steady, and, in any other circumstances, it would be entitled to be called, a most laudable effort, was made to promote the civilization, and, with it, the permanent establishment of these Indians upon the soil which they now inhabited. They were encouraged to abandon their hunter state and to devote themselves to tillage and husbandry. Mr. Jefferson, Mr. Madison, Mr. Monroe and Mr. Adams, have all left memorials of the solicitude they felt in this endeavor, and the favor with which they promoted it. Under