66

"of the States be the sole judge of the legality or constitutionality of its acts, in a question of power "between them and the States? Shall they who "assert a right be the sole judges of their authority to "claim and to exercise it? Does not all power seek to enlarge itself?-grow on that it feeds upon? Has "not that been the history of all encroachment, all usurpation?"

66

66

Mr. Henry had said that the remedy for unauthorized Federal laws, when the Federal judiciary had no cognizance of the case, would be found in the privilege and right of petition. "Petition! "Petition! Whom are "we to petition?" replied Randolph. "Those who

66

are the projectors of these measures, who voted for "them and forced them upon you in spite of your will? "Would not those men laugh at your petition, and, in "the pride and insolence of new born power, trample it "under their feet with disdain ?

From this brief review of the opinions and wishes of political leaders of both of the early parties, it is seen that the right of nullification and secession was recognized by either party whenever the administration was in the hands of its opponents, or whenever the tendency of events pointed to a diminution of the power and influence of the section in which its strength lay. The friends of Jefferson might threaten secession one day because of the sedition act; but it was the party of Adams which threatened disunion on the next day because of the extension of territory or of an embargo upon commerce. Under these leaders the Southwest came into existence and began its wonderful growth. At their very birth the Gulf States had seen a desperate attempt by New England to strangle them

under the continued rule of Spain and of the Indian savage. The first political lesson learned in infancy was that they were a bastard offspring, regarded with aversion by the mother who should have nourished them. The first political cry that met their ears was the cry from Massachusetts, that their accession to the Union was justifiable cause for disunion, and a similar cry from Virginia that each State has the right to judge for itself of an infraction of the Constitution and to assert the mode of redress.

CHAPTER IV.

Jurisdiction of the United States Over Indian Tribes-The Fee Simple of Lands Occupied by the Tribes-The Yazoo Frauds-The Decision in the Case of Fletcher vs. Peck-Indignation of the People of Georgia-Constitutional Questions growing out of that Decision, &c.

"Congress have the exclusive right of pre-emption to all Indian lands lying within the territories of the United States. **The title

is in the United States by the treaty of peace with Great Britain, and by subsequent cessions from France and Spain, and by cessions from the individual States; and the Indians have only a right of occupancy and the United States possess the legal title subject to that occupancy, and with an absolute and exclusive right to extinguish the Indian title of occupancy either by conquest or purchase."

"Randolph was in Georgia at the time of the perpetration of this villainy, and participated in the shame and mortification of his friends at seeing persons reputed religious and respectable, effecting a public robbery, by bribing the legislature of the State, and reducing them to the horrors of treachery and perjury. A more detestable, impudent, and dangerous villainy is not to be found on record."

GARLAND'S LIFE OF RANDOLPH.

Under the Articles of Confederation the United States had the power to manage all affairs with the Indian nations not members of a State. The language of the article conveying the power was this: "The United "States in Congress assembled, shall also have the sole and exclusive right and power of regulating

"the trade and managing all affairs with the Indians, "not members of any of the States, provided that the "legislative right of any State within its own limits be not infringed or violated."

66

It was claimed under this grant that the Federal Government could manage all Indian affairs of whatever character, except affairs relating to individual Indians who may have subjected themselves to State laws and become citizens of the State. In all other cases, whether the Indian tribe resided within or without the limits of a State, the United States alone could regulate and rule them. It was seen at once that this Federal jurisdiction must conflict with the right of a State to rule the people of every class within its own limits, and that interminable confusion would result from the subjection of one class of the people within a State to one set of laws, and those of another to another set. When, therefore, the Constitution was framed, the States declined to renew this grant; but contented themselves simply with adopting this provision, the only one in that instrument referring to the Indian :

"The Congress shall have power to regu"late commerce with foreign nations, and among the "several States and with the Indian tribes."

The plain meaning of this section is that the United States should regulate commerce with those Indian tribes which dwelt upon lands not belonging to a State, and which were outside the jurisdiction of a State. This is evident from the fact that commerce with the Indian tribes alluded to is placed in connection with commerce between the States and foreign governments. The right to manage all affairs with the Indians, such as the United States possessed under the articles was withdrawn under the Constitution, and yet the Federal Government proceeded under the Constitution to exercise the authority it wielded under the articles, to regulate commerce with Indian tribes, both within and

without the limits of a State, and also to manage all Indian affairs, without regard to whether the tribes were within or without the State.

Such a claim, and an attempt to enforce it, was the occasion of serious difficulty between the Federal Government and the State of Georgia from an early day. The questions which sprang from this claim, agitated the people of Georgia, Alabama and Mississippi, from the year 1795 to the close of the administration of President Jackson, a period of more than forty years. Notwithstanding the denunciations which have been hurled at the State of Georgia for her action and position in these Indian questions, a review of the facts and the law, must convince every dispassionate reader that at each step of the controversy, the people of the Southwest are vindicated.

The first question which arose between the State of Georgia and the Federal Government was, who possessed the fee simple of the lands lying within the boundaries of the State, but occupied by Indian tribes? An answer to this question is found in the International Law which prevailed among Christian Powers at the period of the discovery of America.

When the American Continent was discovered by the Europeans, the several nations who settled it with colonies united in the declaration that discovery gave a title to the government by whose subjects it was made, against all other European governments whose title might be consummated by possession. The nation making the discovery was recognized among Christian people as having the sole right to make terms with the Indians, and to plant settlements. The Indians were admitted to be the rightful occupants of the soil with a