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Indianapolis Indiana Journal (Newspaper) - February 24, 1830, Indianapolis, Indiana
Indiana journal. Vol. , wednesday february 24, 1830. No. 357. Published by Douglass amp Maguire. Terms. Seventh five cents during the session of the legislature. One Dollar for three months including the session of the legislature. I two dollars per annul if paid in Advance. Three dollars at tie end of the year. Advertisements inserted at the usual affairs. Or. Graham 3 remarks made in committee of the whole Senate on a motion to strike out the Resolution providing for extending the Laws of the state Over the Indian tribes. Or. Chairman i need not reiterate the declarations of the senators who have preceded nne in relation to the inn Ortance of the question now before the committee. The discussion has taken a most extensive Range and positions have been assumed by the friends of the measure which i had no anticipated. One of the a senators assumes the ground that these states form Twenty four Independent Sovereign ties having uncontrolled right within their respective limits to direct whatsoever ought to be done. The senator from Switzerland has told us that there is in these United states no such thing As a National government that the Union of the states might properly be assimilated to half a dozen of persons associating together for mercantile purposes for that the Union takes from the individual states none of their rights and confers no Power on the National government. Much has been said about the formation of government and the social 1 compact. I intend sir to prove that the people of the United states formed the National or general government As Well As the state Gojii Ruments. That the people have a right to change or new Model their government will readily be admitted. The. People of the thirteen colonies of great Britain formed themselves into thirteen Independent states each one possessing Sovereign Power for the purpose of defending themselves they end Quot tired into articles of confederation those articles though in perfect carried our fathers through a perilous War to a Happy termination but sir As soon As peace was restored it was found from the different views and interests of the thirteen Sovereign ties that those articles of confederation were entirely insufficient to control a concert of action in the several states. Some of the states enacted Laws Commerce materially differing from and affecting the regulations adopted by their Sisters of the confederacy the friends of Freedom became alarmed it was necessary something should be done there was no Harmony nor unison of operation among the states and the dearly bought liberties of our land were about to perish forever. The friends of american Liberty advised the several states to meet by their delegates in convention and form a Constitution and National government clothed with Power not Only to provide for the common defence and general welfare of the whole but also to control tie states themselves. The necessity for this measure had become obvious to All. Thirteen Independent Sovereign ties in the same country speaking the same language but with interests and views essentially differing without any Superior Power to control them would in All probability soon go to War among themselves. To prevent those evils to much to be dreaded the thirteen Independent states met by their delegates in convention to create a nation al government. There the states or the people if you please surrendered a Large portion of the sovereignly appertaining to the states respectively for the welfare and better Protection of the whole. An Independent state or nation must possess All the Powers and attributes of sovereignty if she surrenders but one of her attributes or rights she is no longer Sovereign. If then i can show that the states did surrender Bome of their most important rights the ground assumed by senators who favor this Resolution must entirely fail. The essential attributes of sovereignty it will be granted Are to declare War make treaties with foreign Powers provide and maintain a Navy Coin Money and regulate its value and regulate Commerce with foreign nations a Mong the several states and among the. Indian tribes. The Powers 1 have Here enumerated Are but a portion of those which the states surrendered to the general government. After a state has divested itself of these inherent and essential attributes of sovereignty i have to ask if any senator will assert that the states Are severally Sovereign and Independent Powers but senators say that the Federal compact was the act of the states that the people alone have the right to Confer Power or from a government. If can prove sir that the people formed the Federal government i Hope the gentlemen will abandon that position. That the convention who formed the Federal Constitution was selected by the states is readily conceded but sir after the Constitution was formed i find the following Resolution was unanimously adopted by the convention a Quot in convention monday september "17, 1787. Present the represent Quot lives of the thirteen states. Resolved Quot that the preceding Constitution be Quot Laid before the u. States in Congress Quot assembled and that it is the opinion Quot of this convention that it should after Quot wards be submitted to a convention Quot of delegates chosen in each state by Quot the people thereof under the recon Quot mentation of its legislature for their Quot assent and ratification and that each Quot convention assenting to and ratifying Quot the same should give notice thereof Quot to the United states in Congress the Federal Constitution was on the 28th september 1787, presented to Congress then sitting in the City of Philadelphia by the convention who formed it and on the same Day Congress adopted the following Resolution resolved unania Quot Mously that the said report with the Quot resolutions and letter accompanying Quot the same be transmitted to the Sev Quot eral Legislatures in order to be sub Quot fitted to a convention of delegates Quot chosen in each state by the people Quot thereof in conformity to the resolves Quot of the convention made and provi Quot ded in that this recommendation was acted on by the Legislatures of the states delegates were elected by the people for the express purpose of adopting or rejecting the Constitution for this National or Federal government which they were about to form and which they did thus constitute. I repeat it sir and it cannot be controverted that this National government thus formed was As much the act of the people As was the formation of the states themselves. The Only Dif Irence that i can discover is this that in forming the state government the people of each state elected the delegates to form a Constitution for the government of the state of course before such Constitution was formed and in the Case of the Federal government the people elected the delegates who adopted the Constitution after it was formed. If the senator can Shew me the reason Why one act of the people of equal solemnity should be More binding than another i will own that his ingenuity has suggested something novel. Or. Chairman i now assume the position As established that there is in these United states a National government possessing Powers to the exercise of which the individual states can set up no rational claim and sir poro ers without which no slate can be considered Sovereign and Independent. So Falis the newfangled doctrine of the proper sovereignty of the states separately and thus fall All the preposterous consequences of a nature appropriately springing from so Flimsy a foundation. As Well sir might the senator Tell me that an individual who had Given an indenture divesting him of some of his most essential rights was nevertheless absolutely and without restriction a Freeman. As i wish to place the position assumed by me beyond a doubt and to expose the Hobby of the Day a bout Sovereign state rights to the Public gaze i will Call the attention of the committee to the opinions of the convention which formed the Federal Constitution at the time of its forma mation and permit me to say or. Chairman that i consider the unanimous opinion of that convention expressed when the whole matter was fresh before them to be evidence which cannot be controverted. On september 17, 1787, the convention submitted to Congress the Constitution just framed accompanied with an address from which the following is an extract Quot the friends of our country Quot have Long seen and desired that the Quot Power of making War peace and Quot treaties that of levying taxes coining Quot Money regulating Commerce and the Quot corresponding executive and judicial Quot authorities should be fully and of Quot factually vested in the general gov Quot Ern ment of the Union. It is obvious Quot by impracticable in the Federal gov Quot Ern ment of those states to secure All Quot the rights of Independent sovereignty Quot to each and yet provide for the inter Quot est and safety of All. Individuals in Quot Teri Ginto society must give up a Quot share of Liberty to preserve the rest Quot the magnitude of the sacrifice must Quot depend As Well on situation and Cir Quot cum stance As on the object to be of Quot trained. It is at All times difficult to Quot Divide with precision the line be Quot tween those rights which must be sur Quot rendered and those which May be re Quot served and on the present occasion Quot this difficulty was increased by a Dif Quot Ference among the several states As Quot to their situation is tent habits and Quot particular thus sir it was the conclusion and unanimous opinion of the sages who framed the Federal Constitution that the states had divested themselves of All the Powers and rights surrendered to the National or Federal government As soon As the people should have ratified the Constitution. Consequently that the states from thenceforth could not be considered Sovereign and Independent states but rather that each state would be a member of the great National government and Here or. Chairman permit me to remark that throughout this discussion when i make use of the terms National Federal or general government i have precisely the same meaning. The ground assumed then sir is incontrovertible that the National government so established Over these United states was formed by the people the legitimate source of All Power hence i infer that an attempt on the part of any of the states to exercise any of the Powers surrendered to the general government or claimed As appertaining to Independent sovereignty should strictly be considered an act of rebellion on the part of such state. The variety of Sovereign consequences which have been claimed to grow out of the Sovereign Powers belonging to Independent Sovereign states will excuse i Hope sir the length of the investigation Given to this subject. Among these consequences 1 consider the claims set up in the resolutions before the committee the most unjust and untenable. The senators who support the resolutions contend that n. York As Well As most of the other states have extended their Laws Over tie Indian tribes within their limits. The senator from Fra Riklin if i understood him correctly considers it the legitimate course. Sir i Bow with deference to the Legal abilities of the senators from Switzerland and Franklin but seeing in their arguments nothing to induce me to legalize wrong into right nor any thing More or less than a casting about for a plea to do that which seems expedient and desirable but which to me seems of itself evidently unjust i must therefore be permitted to differ in opinion with those senators. I will Endeavor to Shew that the state of new York As Well As the other states Georgia excepted have always viewed those tribes As Independent nations Over whom while within their territorial limits they bad no rightful control other than what was obtained from them by their consent and agreement. In order to establish this position it May be necessary to refer to documents and if i should be somewhat tedious i Hope the committee will extend to me that indulgence which i have so often experienced from this deliberative body. The first thing i shall notice is an extract fan argument from a respectable paper published in the City of new York. The writer states Quot but we meet Quot the apologist for Georgia on other Quot ground. We deny the truth of the Quot assertion. We say that our ances Quot tors Felt themselves bound to pay and Quot did in fact pay the indians a fair Quot Price for their lands and that neither Quot the state of new York nor any of the Quot new England states Ever claimed or Quot exercised the right of extending their Quot Laws Over peaceable indians without Quot their consent those who assert the Quot contrary have either never read our Quot history or have read it to very Little Hutchinson a celebrated writer when speaking of the Light in which the indians were viewed by the colonies says Quot the country to Quot which they themselves moved was Quot claimed by Independent princes they Quot therefore looked on themselves Obi Quot ged and accordingly As appeared by Quot their records actually had purchased Quot for valuable considerations not Only Quot the soil but the Dominion the lord Quot ship and sovereignty of those a Strong Casein illustration of their a is on this subject is related by governor Winthrop the first governor of Massachusetts in his some indians having killed several of another tribe in Amity with the Whites governor Winthrop sent to or. Pinchan at Springfield to assist in arresting the murderers. Or. Pinchan in answer wrote As follows Quot but Quot if the thing be Well examined l a Quot pretend that neither the murderers Quot Are your subjects nor yet the Mur Quot Ders within your jurisdiction. 1 Quot Grant they Are All within the line of Quot the Patent but yet you cannot say Quot that therefore they Are your subjects Quot nor yet within your jurisdiction in Quot til they have fully subjected them Quot selves to your government which Quot they have not nor until you have Quot bought their land until this be done Quot they must be esteemed As an inde Quot pendent free people and so they of Quot Nanc Atuck do All account the doctrine was recognized and a Stop put accordingly to the proceedings. One of the senators sir has told us that he is in favor of established practices that he likes those words and terms which have been settled by judicial decision. On that ground i am prepared to meet the senator and gratify him with judicial decisions and As judicial authority is a favorite and familiar theme with the gentlemen they will Pardon me if 1 quote the opinions of a celebrated Jurist somewhat in detail. In the Case of Goodall is. Jackson which came before the court of errors in the state of new York in february 1823, and is reported in 2d Johnson 693�?734, Chancellor Kent expressed the following opinions respecting the rights of the indians Quot the Onciu As and other tribes Quot composing the six nations of indians Quot Werc originally free and Independent Quot nations. It is for the counsel who Quot contend Liat they have nov ceased Quot to be a distinct people and become Quot completely incorporated with us and Quot clothed with All the rights and bound Quot to All the duties of citizens to Point Quot out the pc disc time w Hen that event Quot took place. I have not been Able to Quot design irate the period or to discover Quot the requisite evidence of such an in Quot tire and total revolution. Do our Quot Laws even at this Day allow these Quot indians to participate equally with us Quot in our civil and political privileges Quot do they vote at our elections or Are Quot they represented in our legislature Quot or live any concern As jurors or Mei Quot i Sirats in tic administration of jus Quot Tice through the whole Serier of Quot our colonial history these indians Quot were considered As Independent al Quot pics who advanced for themselves the Quot proud claim of free nations but who Quot had voluntarily and upon honorable Quot icbms placed Obein selves and their Quot lands under the Protection of the Quot British government. The colonial Quot authorities uniformly Nigocia cd with Quot them and made and observed treaties Quot with them As Sovereign communities Quot Cher cing the rights of free Delibera Quot Tion and action but in consideration Quot of Protection owing a qualified sub Quot Section in a National but not in an in Quot div dual capacity to the British Quot Crown. Quot in 1794, there was a treaty made Quot Between the United states and the Quot six nations in which perpetual peace Quot and Friendship were declared Between Quot the contracting parties and the unit quoted Stales acknowledged the lands Quot reserved to the Oneida Onondaga Quot and Cayuga nations in and by the Quot treaties made with this state to be Quot their property and the treaty con Quot gains this provision which has a very Quot important and very decisive bearing Quot on the Point under discussion Quot the Quot United states and the six nations a Quot Grcic that for injuries done by Indi Quot visuals on either Side no private re Quot Talia Tion shall take place but com Quot plaint shall be made by the injured Quot party to the of Lur that is by the six Quot nations or any of them to the presi Quot Dent of the United states and by Quot and on behalf of the president to the Quot principal chiefs of the six nations or Quot of that nation to which the offender what More demonstrable Quot proof can we require of existing and a a mozol edged sovereignty residing in a those indians. We have Here the Quot forms and requisitions Peculiar to Quot the Intercourse Between Friendly and Quot Independent states and they Are con Quot Fordable to the received institutes of Quot the Law of nations. The United Quot states have never dealt with those Quot people within our National limits., As Quot if they were extinguished Sovereign Quot ties. They have constantly treated Quot them As Independent nations Oit Rae "�3/ their Ozon usages and possessing gov Quot can mints competent to make and to Quot maintain treaties. They have con Quot Side red them As Public enemies in Quot War and Allied friends in the Chancellor proceeds to examine several treaties made Between the United states and the Southern and ave Stern indians and then makes the following remarks Quot that in the face of such treaties it is Idle to contend that these indians Are not Sovereign this judicial decision of authority. Sir which i Rould Hope Legal gentlemen would admit applies directly to the Case in Point that the Indian tribes arc not Only the rightful owners of their soil but that they Are Sovereign within their own limits competent to be governed by their own Laws not Only possessing the occupancy of their territory but expressly allowing their right of governing themselves a Quot san Independent people upon it. Or. Chairman if further testimony was wanting i would add that so far from the state of new York extending her Laws Over the feeble Indian tribes within her Borders without their consent i expressly allege that no such even the most partial Extension has taken place Ever without the most scrupulous regard to the wishes and consent of the tribes concerned. No sir so late As april 5,1813, under the authority of the legislature of that state stipulations were entered into w Ith the Oneida nation and others in Liat state upon Mutual desire and consent. The language of the arrangement made at that time on matters made the subject of Mutual agreement Between them,de3crves att lion. It commences Tylius Quot the people of the Quot state of new York on the one part Quot and the Oneida nation on the i ask or. Chairman How this comports Vii the doctrine by senators that the state of new York has extended her Laws Over the indians Zoethout their consent. I will barely take the Liberty of adding a sentiment expressed by the distinguished Jurist above named in the conclusion of his opinion above cited a sentiment As enlightened from him As a Chancellor As it was ennobling As a Man Quot a lion the time shall arrive Quot for us to break Down the partition Avail Quot Between us and them and to Annahi Quot late the political existence of the in Quot Diane As nations and tribes i Trust we Quot shall act fairly and explicitly and in Quot devour to effect it with the full Quot knowledge and assent of the indians Quot themselves and with the most scr Quot Purlous regard to their weaknesses Quot Ami this sir is the outline of the new York decisions and practice with regard to an acting the rights of the indians within her boundaries and contrasted with the respectful attention of the powerful hut magnanimous state of new York to the sovereignty of a separate and Independent but feeble people i refer the committee to the Troat mint proposed by the resolutions to be extended to the Indian tribes within our Borders Zoz Vaow their consent and i would refer the committee beyond this to the treatment of the indians to the handful of Whites when our forefathers landed on their soil when their Laws air a Powers were in fact As in principle rightful and , sir which if completed As proposed will Lead an american to cease to be proud of his country. Sir the senators who support the Resolution under consideration have called on us to Shew the reasons Why these resolutions should not pass. I have Ever understood or. Chairman that the Burden of proof should al Avans Lia on those who attempt to make innovations on the existing state of things what proofs or reasons have they offered it All runs in its consequences to this sir that it would be convenient for us to own the land they inhabit and one senator expressly tells you that if you extend your Laws Over those indians they will soon leave the country. And has it really come to this i would rather hear senators come out and say at once that the state of Indiana desires to have the lands occupied by these tribes she has the Power and in the face of every thing honorable she will exercise that Power and the indians must submit. If that is to be the doctrine Why not avow it openly and order but the military Force of the country. And the argument that we must have their lands by Force through indirect Means if necessary because we will Settle it More densely would equally entitle the hordes of abundant Europe to claim and populate our extensive wilds As their own. I would take the Liberty of suggesting As one possible reason Why the ground claimed by the operation of these resolutions is not openly claimed and exercised by taking up our arms against these tribes that we have not even As those Independent Tribet have the right or Power to declare War and if we did that National government the existence of which is denied by the senator from Switzerland is by solemn treaty bound to protect them in the enjoyment of their lands and As i understand it also in the free exercise of their own government and in thus coming in Contact with the National government discharging her obligations of Good Faith in Liana would have
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