By the 4th article, the Indians make a large cession of their lands. By the 5th, the United States guaranty to them the residue of their lands.

By the 13th, it is stipulated that all animosities for past grievances shall henceforth cease.

Here is an express amnesty for all past wrongs; and with regard to spoliations, the stipulation of the Creek nation is confined to the restoration of negroes-not of other property; and of such negroes only as were then in any part of the said nation. All prior claims, then, for other property captured or destroyed, whether in war or peace, were hereby extinguished; the fair presumption being, that these injuries were compensated by the large cession of lands now made by the Indians. All claims then existing under the prior treaties between the State of Georgia and the Creek nation-those of Augusta, Galphinton, and Shoulderbonewere now released and gone. Indeed, I understand it to be admitted that such would unquestionably be the effect of this treaty, had it been a treaty between civilized nations; the objection to such operation in this case being, that it is a treaty with Indians, which will be considered by and by.

The next in order was the treaty of Colerain, between the United States and the Creek nation, on the 29th June, 1796, which is also a treaty of peace.

By the first article, it is provided that the treaty of New York shall remain obligatory on the contracting parties.

By the 6th article, the Creeks relinquish all claims to the lands which had been ceded by the Choctaws and Chickasaws to the United States, by the treaties of Hopewell and Holston, and to which lands, or a part of them, the Creeks had claimed title.

By the 7th article, it is stipulated that "the Creek nation shall deliver, as soon as practicable, to the superintendent of Indian affairs, at such place as he may direct, all citizens of the United States, white inhabitants and negroes, who are now prisoners in any part of said nation, agreeably to the treaty of New York: and also all citizens, white inhabitauts, negroes, and property taken since the signing of that treaty; and if any such prisoners, negroes, or property, should not be delivered on or before the first day of January next, the governor of Georgia may empower three persons to repair to the said nation, in order to claim and re. ceive such prisoners, negroes, and property, under the direction of the President of the United States."

By the 9th article it is declared that "all animosities for past grievances shall henceforth cease; and the contracting parties will carry the foregoing treaty into full execution with all good faith: Provided, nevertheless, That persons now under arrest in the State of Georgia for a violation of the treaty of New York are not entitled to be included in this amnesty, but are to abide the decision of the law."

So that, in addition to that amnesty for past wrongs which the law of nations attaches by implication to a treaty of peace, here is an express and positive amnesty for the past, with the reservations expressed in the treaty itself.

It is proper, also, to observe, that by the 3d and 4th articles of the treaty of Colerain, it was stipulated that the President should have the power of

establishing trading or military posts within the Indian lines, on the Alatamaha and Oconee rivers, to each of which the Indians agreed to annex a tract of land of five miles square; which lands were thereby ceded to the United States, and declared to be for their use and under their govern

ment.

And by the 8th article, in consideration of the friendly disposition of the Creek nation towards the government of the United States, evidenced by the stipulations in that treaty, and particularly the leaving it in the discretion of the President to establish trading or military posts on their lands, the United States give to the said nation goods to the value of $6,000, and stipulate to send them two blacksmiths, with strikers, to be employed for the upper and lower Creeks, with necessary tools.

This treaty, having been submitted by the President to the Senate for their approval, was ratified by them, subject to the condition that nothing contained in the 3d and 4th articles should be construed to affect any claim of the State of Georgia to the right of pre emption to the lands so set apart for military or trading posts; or to give to the United States, without the consent of the said State, any right to the soil, or to the exclusive legislation over the same, or any other right than that of establishing, maintaining, and exclusively governing military and trading posts within the Indian territory mentioned in the said articles, so long as the frontier of Georgia may require these establishments.

This was the only objection, on the part of Georgia, to a treaty proclaiming amnesty to the Indians for all past grievances, with the excep tions stated in the treaty itself.

This was the last treaty which took place between the United States and the Creek nation prior to the 30th March, 1802, the date of the act of Congress to regulate trade and intercourse with the Indian tribes; at which day the account of the Georgia claims was to stop, according to the terms of the reference made to the President in 1821.

Fresh acts of aggression and spoliation had, however, been committed by the Indians after the treaty of Colerain, and prior to the act; for which that act made no provision, because it was entirely prospective in its provisions. These aggressions seem to have led to further hostilities, which were terminated by the treaty of Fort Wilkinson on the 16th June, 1802. By the 1st article of this treaty, the Indians make another cession of lands to the United States.

By the 2d, the United States agree to pay them certain specific sums of money, out of which payments there is a reservation of $5,000 to satisfy claims for property taken by individuals of the said nation from the citizens of the United States subsequent to the treaty of Colerain, which has been or may be claimed and established agreeably to the provisions of the act for regulating trade and intercourse with the Indian tribes, and to preserve peace on the frontiers.

I cite this treaty merely because I find it led to the adoption of one of the heads of excluded claims in the instructions to the commissioner (Preston) proceeding from the Department of War on the 5th of April, 1821, to wit: the 5th class, which is thus worded: "5th.-Claims provided for by the 2d article of the treaty of Fort Wilkinson, concluded 16th June, 1802."

I cannot discover how the treaty of Fort Wilkinson has any bearing on the question of the claims submitted to the President. The claims sub

mitted to the President are those which existed on the 30th March, 1802. The treaty of Fort Wilkinson is not understood by me to make any provision for those claims, or any part of them. The 2d article of that treaty does not profess to provide for any claims which existed at, and prior to, the 30th March, 1802. It does not provide for all the claims for.property taken by the Creeks since the treaty of Colerain (1796;) but for such property only, taken since that date, as has been or may be claimed and established agreeably to the provisions of the act for regulating trade and intercourse with the Indian tribes. But the provisions of this act do not look back to any wrong done before its date; they are entirely prospective; the language of the 14th section, referred to by the instructions, is," that if any Indian or Indians belonging to any tribe in amity with the United States shall come over or cross the said boundary line, and there steal or destroy any horses," &c. And the whole provisions of the article are not only future, but inapplicable, in their nature, to antecedent wrongs.

The treaty of Fort Wilkinson, then, providing only for such claims as have been or may be made and established agreeably to the provisions of this act, is necessarily limited to claims arising posterior to the act; because it is only on these claims that the act operates, and only these that could be made and established agreeably to the provisions of the act. The treaty of Fort Wilkinson, therefore, looking back only to the date of the act, has nothing to do with the claims on which the President was called to decide, which were the claims existing prior to the act and at the date of its passage. I shall, therefore, dismiss this treaty from my consideration of the subject; regarding the treaty of Colerain as the last which touches the questions before us.

Having thus brought to your view the provisions of all the treaties which can be supposed to affect this inquiry, let us observe more particularly their effect on the Georgia claims.

One head of these claims submitted for my opinion is the claim for property destroyed, and which the people of Georgia carry back to 1783, the date of the treaty of Augusta. How stands this claim under these treaties? There is not one treaty which contains any stipulation to answer for property destroyed. While they do all contain stipulations for the redress of other injuries the restoration, for example, of the spoliated property then in the nation-what is the effect, in a treaty of peace, of express provisions with regard to some past wrongs, and a total silence as to others? Is it not a virtual extinguishment of all claims for antecedent wrongs with regard to which the treaty is silent? With regard to property destroyed in the progress of the war, is not a treaty of peace a mutual release of all claims on this ground? In our late war with Great Britain, for example, the destruction of property in the course of the war was immense; yet it was never ima gined that, after the treaty of peace, we had any claim on Great Britain for property destroyed in the course of the war; nor any other claim of any sort, except those which were specifically created by the treaty of peace itself. In Indian wars, as in all other wars, the destruction of property as well as of life is mutual; and the Indians have generally got much the worst of it, in both respects. If they destroy some few dwellings and horses and cattle of the whites, we also burn and destroy their towns, their crops, and their stocks. But when the treaty of peace comes, it puts a seal on all claims of this sort on either side. Such is admitted to be the tacit effect of a treaty of peace among civilized nations, from the

very nature and purpose of the instrument itself. Such is the effect which the law of nations ascribes to a treaty of peace, even where the treaty is silent as to all past wrongs.

But this case is even stronger; for here the treaties are not silent in this respect.

The treaty of Shoulderbone (1786) between the State of Georgia and the Creek nation expressly declares, in its preamble, that the articles of that treaty are to give satisfaction to the party injured; and by that treaty the single stipulation for past spoliations is, that the Indians will restore all negroes, horses, cattle, and other property, then in the nation.

The subsequent treaty of New York (1790) supersedes the treaty of Shoulderbone; it contains an express amnesty for all past grievances; and as to property plundered, stipulates only that the Indians shall restore all the negroes who were then prisoners in any part of the nation: thus merging and extinguishing all future claims and complaint, not only for property previously destroyed, either in war or peace, but for plundered property of all other descriptions, save only negroes.

Nor is this omission of all other property to be considered as mere inad vertence; because the subsequent treaty of Colerain, (1796,) containing another express amnesty for the past, clearly recognises and marks the distinction between negroes separately, and negroes and other property conjointly; by the stipulation of its 7th article, that the Creek nation shall deliver the negroes who are now prisoners in any part of the nation, ac. cording to the treaty of New York; and also all negroes and other property taken since the signing of that treaty.

In considering the force of these treaties, we must continually bear in mind the important fact that they contain successive grants and cessions of large portions of the Indian lands, which can be regarded in no other fair light than as so many atonements, expiations, and compensations for past outrages; which having been once paid and satisfied, and thus formally and repeatedly released, ought never to have been called up in judgment again for a second payment and satisfaction.

Had these been treaties between civilized nations, it would never, I think, have been questioned that the claims of Georgia would have been reduced to the following heads:

1. To a claim for the negroes which ought to have been restored under the treaty of New York, (1790,) to wit: the negroes then in the Creek

nation.

2. To a claim for the negroes and other property taken between the date of that treaty and the date of the treaty of Colerain, (1796,) and which ought to have been restored under the latter treaty.

3. To a claim for all negroes and other property taken and destroyed between the date of the treaty of Colerain and March 30, 1802, the period at which the accounts between the parties were to stop. I extend this third head to negroes and other property taken or destroyed, because there is no treaty to restrain this third head of claims, as there are with regard to the two former; and therefore I consider it open to every just claim, of whatever description, that can be sustained by satisfactory proof.

I do not understand it to be denied that such would have been the effect of these treaties had they been treaties between civilized nations. Why are they not to have the same effect in this case? The reasons set forth in the memorial and remonstrance of the Senate and House of Represent

atives of the State of Georgia to the President of the United States, in 1824, are

1. That they are not treaties with an independent nation; that is, not with a nation of unlimited and absolute independence, but with a nation locally resident within the limits of another and paramount sovereignty, to wit, the State of Georgia; and with a nation, therefore, at best, of limited independence.

2. That if independent, the Indians are uncivilized; and, not being bound by the rules adopted by civilized nations for the construction of treaties, they cannot demand the benefit of those rules in their own behalf, for the purpose of setting up an implied exemption from the otherwise plain import of their express stipulations.

3. That, if these treaties did amount to a release of all prior claims, the circumstances attending the execution of the treaty of Indian Spring in 1821, and the terms of the reference to the President of the United States, being "of all claims of whatever nature," was a waiver of that release. I proceed to consider these objections in the order in which they have been presented.

1. That the Indians are not an independent nation.

I do not distinctly perceive the conclusion to which this objection is supposed to point. Indeed, I do not perceive any sound conclusion of any use in this discussion, which it has a tendency to establish. Is it meant to say that the Indians, not being an independent nation to all intents and purposes, have not a capacity to treat? But their capacity to treat has been uniformly admitted in practice, and has never been denied in theory. It was practically admitted by the British government in Georgia, prior to the Revolution; of which there is proof in Watkins's Digest, appendix, page 763. It was admitted by the State of Georgia itself, after the Revolution, and prior to the adoption of the federal constitution; of which Watkins's appendix furnishes abundant proof, besides the treaties of Augusta, Galphinton, and Shoulderbone, which have been cited. It has been constantly admitted by the United States, since the adoption of the constitution down to this day; and has never, so far as I am informed, been denied. It is admitted by the State of Georgia in the very claims which she now rests on these treaties and on the treaty of Indian Spring in 1821. It cannot be possible, therefore, that this objection means to deny the capacity of the Indian nations to treat.

If it be meant to say that, although capable of treating, their treaties are not to be construed like the treaties of nations absolutely independent, no reason is discerned for this distinction in the circumstance that their independence is of a limited character. If they are independent to the purpose of treating, they have all the independence that is necessary to the argument. If they are competent parties to this species of contract called a treaty, the construction of the contract must be governed by the same rules of reason which govern the contracts of all other competent parties; for the rules which govern the construction of treaties are not technical and artificial, as seems to be assumed by the Georgia memorial; on the contrary, they are the mere dictates of reason and common sense, which apply to the transactions of all rational beings, of whatever nation, color, or religion. The point, then, once conceded, that the Indians are inde. pendent to the purpose of treating, their independence is, to that purpose, as absolute as that of any other nation. Being competent to bind them