Part 248

Mr. BOUDINOT imagined that Mr. SMITH had furnished a new and forcible argument against his own cause. This claim of North Carolina to sell the lands was wrong, and this doctrine had been the cause of all the disputes in which the Federal Government has been engaged. The Crown of Britain had never pretended to any right of this kind, nor ever thought it had a title to any lands till they were first purchased from the Indians. The question before the committee was, have the United States taken away any claim which the purchasers of these lands had? And the answer is, that the United States have not. The State of North Carolina only had a right to sell the privilege of pre-emption. This was the only right which the purchasers obtained, and this right they still possess. As to the certificates, they were not those of the United States, but those of North Carolina. They were not Continental certificates, and for that reason Continental officers would not accept them; but North Carolina has since brought these certificates into her account against the General Government. The commissioners, in 1786, had done a very great service to North Carolina, by settling a line of boundary, and putting an end to the Indian war. He thought that the best way would be for the claimants to apply to the Executive, and agree among themselves to extinguish, by an interference of that kind, the Indian right. This would be much better than for the House to involve itself in the purchase of an immense tract of land, at an expense of seven or eight hundred thousand dollars, (or how much more, Mr. B. could not tell,) when there was so much occasion for the money to pay the national debt. He again declared that he should think it the best way to obtain the good offices of the Executive in extinguishing the Indian right. The Six Nations possessed part of the territory of Pennsylvania. This State also may apply to the General Government for redress, if North Carolina were to get payment for these lands. The State of New York may do so, for the same reasons as North Carolina. This would be involving the Government in an endless labyrinth. He was as unwilling as any gentleman in the House to interfere with the rights of the Legislature of North Carolina. But he did not wish to see the House going blindfold into the business. The United States have too much land already.

Mr. KITTERA.--The certificates must have been given in by North Carolina to the United States. She denied the right of the commissioners, in 1786, to make Indian treaties, but now that right is given up. He agreed with Mr. BOUDINOT as to his observations on Pennsylvania. Georgia also, he said, had about sixty millions of acres within her chartered limits. The business would never have an end, if the General Government was to interfere in all these cases.

Mr. SCOTT.--Has not this Government a right to restrain every wild-goose excursion into the woods? If it has not, the Union must fall prostrate at the feet of every wild speculator. Pennsylvania, at a great expense, made preparations for an establishment at Presqu'Isle. The ground had been bought at a great expense from the United States. Yet for the sake of general peace, the settlement had been stopped.

Mr. MCDOWELL denied that the two cases corresponded, for the lands at Presqu'Isle had not been given to the Six Nations.

Mr. BOUDINOT differed from the last speaker. He did not think that any thing farther had been done against the interest of North Carolina than against that of Pennsylvania.

Mr. BLOUNT denied that the Indians ever occupied the lands in question, or were fit to occupy them, in any proper sense of the word. To walk across a country, and to shoot in it, was different from an occupation. But, besides, the Creeks and Cherokees were not the only tribes who had hunted there. It had been said yesterday that these lands gave rise to speculation. Mr. B. wished that it had done so, for in that case the certificates would all have been paid by this time. There was no difficulty in funding Southern certificates, when once they got into the hands of Northern speculators. Mr. B. thought himself entitled to receive back from the United States the money which he had paid into the Treasury of North Carolina for these lands.

Mr. MURRAY requested the favor of any gentleman to inform him, whether the lands in question were possessed and occupied, in the more civilized sense of the terms, by the white people? He believed they were not. Had they been in peaceable possession, living on, and cultivating the lands, that circumstance would form a very interesting motive in his mind in favor of the indemnity that was asked. But, in fact, they never were possessed of any right but that which North Carolina could give them--the pre-emption right; that right they now possessed as fully as they did at the time of the cession to the United States. [Mr. CARNES rose, and informed him, that many white people who had begun farms were driven off their lands, and reduced to great distress by the proceedings of the commissioners.] Mr. M. said, an argument struck him of some weight--that if the claim be gratified, the claimants will be in a better situation now than they would have been if the cession had not been made; for North Carolina could not have given them absolute possession but by force of arms. This she would not have a right to do, under this Confederation, nor under the constitution, as no one State can make war. But the claimants can ask nothing more of the United States than they could have had accomplished for them by the State of North Carolina. A new doctrine, resulting from the Revolution, must be admitted as a ground of reasoning, when Indian, unconquered territory, is before us. The Provinces had power, as individual bodies--which States, as such, have not--the right of making war, and gaining possession of Indian territory by conquest. So it was, that a province could, from its own separate resources, make war on Indians, and pay individually the expense. But when the great contest for independence came on, all the States were, in fact, principal confederated bodies, long before they signed the paper of confederation. The doctrine, which suited such a body of States, was, that whatever might be gained by the joint efforts and expense of all, should be the property of all, jointly; and he thought that every principle of sound justice warranted him in applying the doctrine, so far as to say, that whatever might be the chartered limits of each province, while dependent, yet the moment of the joint contest was that in which the true limits of a State were, as far as property in land went, confined to that boundary which was really located, occupied, and peaceably holden within the limits. To say that the State had a right more positive than the pre-emptive one, to lands actually occupied and defended by hostile tribes of Indians within the chartered limits, admits a principle, that, if put into action, tended necessarily to violate the great principle of the Confederation, and of the present constitution, which divests the individual States of the right to make war; as the State to make good any sales she might make within the hostile territory, would be obliged to make war on the tribes to dispossess them. The lands in question were in this situation. They were occupied by Indian tribes, and were never in possession of North Carolina. The gentleman from that State seems to doubt the occupancy of the tribes. Mr. M. believed we would violate principles of justice were we to borrow the principle of occupancy from books, and apply it to Indian society. The Indian tribes held certain tracts of land. As to the mode in which they thought it most rational to use the land, it was nothing against their right to say its exercise differed from our mode. He understood they made a hunting ground of the land in dispute. They had a right to use it as such, and their mode of use was no argument against their right. All that could be, or was proved to belong to North Carolina, was the colonial right to qualified sovereignty, called the pre-emption right. This was all she could grant, and this was all that the claimants could take from her. They had that now; and as he could not see the propriety of making their situation better than if the cession had not been made, so he could not agree to the resolution for giving them indemnity. Perhaps his ideas on the subject might be fashioned by local circumstances, belonging as he did to a State which had no share in those rich funds which the large frontier States possessed, he thought, very unjustly, in immense tracts of back lands. He felt it a duty to narrow all claims like the present as much as possible. Connecticut, Rhode Island, Jersey, Delaware, Maryland, were all in the same situation. They had no back lands, and were divested of the share they were justly entitled to in the back lands, which now bring immense funds of wealth into the land offices of those States which possess them.

Mr. HEISTER wished to have that part of the law read which relates to the species of certificates referred to in the debate; this was accordingly done. Mr. H. said that he had not enough of evidence before him to give a vote. He therefore wished that the committee might rise.

Mr. MACON said, that, according to Mr. BOUDINOT, it was the doctrine of North Carolina in 1783, that the State possessed aright to the unappropriated lands. If that was their doctrine then, nothing had since happened which could make it cease to be so now. The Crown of Britain had transferred the absolute property of lands, without inquiring for permission from the Indians. This evidence went strongly to prove that North Carolina had the same title. The case of Presqu'Isle did not apply, for Pennsylvania was raising troops to make that settlement, and no State can, by the constitution, raise troops of itself. He wished the committee not to rise till they had determined the question.

Mr. CARNES had foreseen that the claim before the committee would be opposed upon various grounds: but he considered none of them as well founded. Grants were first made by North Carolina to individuals, of lands within her chartered boundary. The cession made to, and accepted by the United States, conditioned to secure the interest of individuals. A treaty was thereafter ordered to be held by the United States with the Indians, and by that treaty, lands formerly granted, were relinquished to them. The commissioners of North Carolina protested in form. The people turned out, had paid ten pounds the hundred acres, for their lands, and they were entitled to compensation from North Carolina, or from the United States. It had been said that North Carolina had no right but that of pre-emption. This Mr. C. denied. North Carolina had a right to all the lands within her boundary; and there was an express agreement reserving those lands to individuals. Why did the United States contract with the State, if she had no right? The Indians never could have been considered an independent nation, else there would be compensation in imperio. He mentioned the case of the Tallissee Country containing four million of acres. By a treaty made in 1785, between the State of Georgia and the Creeks, this land was ceded to Georgia. By a second treaty at New York, this very country was relinquished to the Indians, and of course the bona fide right of the State wrested from them. If a decision could be had on this case before a judicial tribunal, it would not require a moment's hesitation to determine in favor of the State, and that the treaty was a nullity. It had been alleged that the right of pre-emption was the only right in possession of the States, that is, a title to purchase of the holders of the property, in exclusion of all other States, or individuals thereof or the particular State. Mr. C. contended that the fee-simple of all the soil within the chartered limits belonged to the State. As to the boundaries, the definitive treaty of peace settles them beyond contradiction. As to the proprietors of these lands being in no worse condition now than before the cession back to the Indians, the people were ploughing the lands, when driven from them, and will any gentleman say that this is not injuring people? As to the State of North Carolina having no particular claim to the land now beyond the Indian line, he would put a case within the chapter of possibilities. Suppose that all the Indians were driven over the Mississippi to-morrow, to whom would the lands which they now possess belong? The particular States to be sure, within whose range they lay. The gentlemen who advocate for morality, and who talk of treating the Indians with humanity, are the very men who have uniformly countenanced the raising of troops, and augmenting the force on our north-western frontiers. How can they reconcile their conduct? The Indians to the South are to be treated with humanity, and those to the North are to be butchered, that the United States may enjoy their property.

Mr. BOUDINOT said, that the charter from Britain extended to the South Sea, but such a stretch of territory was not really claimed by Britain. He read several of the old laws of North Carolina, to prove that the Indian right of soil had always been acknowledged.

Mr. BLOUNT had never thought of quoting this book, which he now did, to show that the British Government had authorized conquest. He did not know of one purchase made in Carolina. It was all conquest, and so were nine-tenths of all the lands held by the white people in America.

Mr. MCDOWELL.--Those lands which are the subject of debate, and which a number of gentlemen have contended, that North Carolina had not a right to grant to her citizens, have been proved to be within the chartered limits as granted by Charles II., and which limits, sovereignty and jurisdiction were guaranteed to the State by the Articles of Confederation.

After this, and within the year 1783, the Legislature passed a law for opening an office to receive entries of lands in the district of country now called the territory south of the Ohio, for the redemption of special and other certificates; and after a number of the surveys were made, and the grants issued, the Government of the United States ordered a treaty to be held with the Cherokee Indians at Holston, in the year 1785, and the commissioners agreed to give up a large quantity of lands before stated to the Indians; but, previous to articles being signed, Colonel Blount, who was the agent for North Carolina, entered his protest in behalf of the State, that some of the articles about to be entered into between the commissioners, on the part of the United States, and the Cherokee Indians, would infringe on the Legislative rights of the State of North Carolina, and the Legislature of the State also protested against the proceedings.

I must here remark, that the then Government of the United States, agreeably to the Articles of Confederation, could not legally make use of the property of the State for any purpose without their consent.

This continued to be the situation of this business, till after Congress requested a cession of those lands, with the sovereignty thereof, which now form the territory south of the Ohio, which was complied with under certain reservations, to continue claims, and the situations of the claimants as good as though this cession had not been made, which was a complete acknowledgment of the right of North Carolina, on the part of the United States, but in my opinion placed them in the same situation that the State would have been in, had the cession not taken place.

Since the adoption of the present Government, another treaty was ordered to be held with the Indians, and the lands were given up to the Indians. Here the Executive right to make such treaty may be questioned, and I believe rightly too; for it would be an extraordinary power for them to make use of the property of individuals, without their consent, or making any compensation, and apply it to national purposes. Great difficulties would be involved were a remedy to be attempted in a judicial way against the Government. I do therefore think either that policy or interest, on the part of the United States, would point out a compliance, in part, with the report on the table, for it will not place the United States in any worse situation than they would have been in, had the lands not been entered. Had that been the case, those certificates would have been in the hands of individuals, a debt against the Government, but on their being subscribed now, to the amount actually paid on their relinquishing their claim, you would then have the land, which will be valuable at a period far distant.

Some gentlemen appear to be alarmed at the sum; but if the principle is a just or fair one, the sum ought not to be an objection. I will here state further, to remove the alarms of those gentlemen, that the sum will fall far short of the statement made by Mr. Jefferson, as a great deduction is to be taken from that; but I can further assert, that a great number of the claimants would not relinquish their claim to said lands to subscribe; it would generally be such as are in indigent circumstances. And here I cannot help making some reply to the objections stated by several members, who have alleged that North Carolina had acted wrong in selling these lands before they had extinguished the Indian claim, and that the claimants were in no worse situation than they would have been had the cession not have taken place. I am not a little surprised to find, that gentlemen cannot see the distinction, for had the cession and treaty at Holston taken place, they were at liberty to settle the lands, and North Carolina was bound to protect them; but since the treaty had been made, the land is not only given up as stated, but it is made criminal to cross the boundary. Mr. DEXTER has stated that North Carolina has acted unjustly and wrong in making sale of those lands before she had extinguished the Indian claims.

Here I shall repeat what I stated before in answer to what the gentleman has said: That the Indian claims to said lands were, in part, extinguished by Henderson's purchase, and part by conquest, and that a considerable part of the lands, that no nation of Indians could establish a claim to, had been claimed by different tribes as territory grounds, but had not been inhabited by any tribe within the memory, or any account that can be traced, and for as great a length of time the different tribes had been at war with each other about the right of hunting on said land. But so far as it relates to the right of North Carolina, I believe no member has a right to call it in question at this time. The gentleman's arguments would have been more applicable at the time the cession act was under consideration; and as to what the member said about the principle and precedent it would fix, I will only call the attention of that gentleman and the committee, to the conduct of the Government of the United States. Have they not pushed conquests into the Indian country north-west of the Ohio? Are they not continuing to do so, and is it not in contemplation to sell large quantities of lands in that country, that have never been purchased? If so, the precedent which the gentleman fears so much is already established. But here I beg leave to call the attention of the committee, in the most serious manner, to the number of citizens concerned, perhaps near twenty thousand. A great number of them are men who turned out in support of the American Independence, who fought, who bled, and furnished their property freely to the support of the cause. For this service they received certificates, which they wished to realize by entering said lands, and flattered themselves with sitting down on those lands, and in the latter part of life making themselves and families happy. Their hopes were soon blasted. After the act of last session, the Treaty of Holston took place, which gave their property to a savage and cruel enemy, to quiet the minds of an enemy who not only were opposed to us through the war with Britain, but ever since have been imbruing their hands in the blood of innocent women and children. What will be the feelings of the claimants, who have acted as I have stated, when they find that their request, which to be sure is a modest one, and which is only to be reimbursed for sums actually paid, is refused? Should this be the decision, I leave you to draw the conclusion. Should they proceed to settle those lands in opposition to the treaty, I should not be much surprised. But the report on your table goes too far, as to damage and a future preference, which I am not in favor of; therefore the resolutions in the latter part of the report I hope will be stricken out.

On the same question, Mr. GILLESPIE made the subsequent remarks: he observed a disposition in the House to call the question; he then said that the situation in which he stood required that he should say something in support of the resolution under consideration, as it had been stated as a new and singular case, from which he took the liberty to dissent, as every writer on the law and usage of nations, held it as an invariable axiom, that all sacrifices of property made by individuals for public uses, ought to be paid out of the public purse. He stated the treaty between England, France, and Spain, in 1763, and the case of the loyalists in 1783, and as the hour of adjournment had arrived, concluded with a motion for the committee to rise and report progress.

The question was then put, Shall the committee now rise and report progress? This was negatived. The resolutions in the report were successively put, and lost.

The committee then rose; the Chairman reported progress, and the House adjourned.

FRIDAY, January 30.

The House proceeded to consider the report of the committee to whom was referred the Message from the PRESIDENT OF THE UNITED STATES, of the thirtieth of January, one thousand seven hundred and ninety-four, enclosing the copy of a letter from the Governor of North Carolina, covering a resolution of the Legislature of that State; as, also, the petitions of Thomas Person and others, proprietors of lands in the territory of the United States south of the river Ohio, and of the Trustees of the University of North Carolina, to which the Committee of the whole House had, yesterday, reported their disagreement: Whereupon,

The first resolution reported by the committee, being again read, in the words following, to wit:

"Resolved, That it shall be lawful for the Executive of the State of North Carolina to subscribe, by way of loan to the United States, the amount of all such certificates as have been deposited in payment for any lands, (reserved by the act of cession aforesaid,) in payment for any lands which may have been relinquished to the Indians by the treaty aforesaid, in trust for the persons by whom they were so deposited, according to their respective rights and interests:"

The question was taken, that the House do agree with the Committee of the whole House in their disagreement to the said first resolution, and it was resolved in the affirmative.

The second resolution reported by the committee, being again read, in the words following, to wit: