1220. CHEROKEE INDIANS, Hopewell Treaty and.—
Were the treaty of Hopewell,
and the act of acceptance of Congress
to stand in any point in direct opposition to
each other, I should consider the act of acceptance
as void in that point; because the
treaty is a law made by two parties, and not
revocable by one of the parties either acting
alone or in conjunction with a third party.
If we consider the acceptance as a legislative
act of Congress, it is the act of one party
only; if we consider it as a treaty between
Congress and North Carolina, it is but a
subsequent treaty with another power, and
cannot make void a preceding one, with a
different power. But I see no such opposition
between these two instruments. The
Cherokees were entitled to the sole occupation
of the lands within the limits guaranteed
to them. The State of North Carolina,
according to the jus gentium established for
America by universal usage, had only a right
of preemption of these lands against all other
nations. It could convey, then, to its citizens
only this right of preemption, and the right of
occupation could not be united to it until obtained
by the United States from the Cherokees.
The act of cession of North Carolina
only preserves the rights of its citizens in the
same state as they would have been, had that
act never been passed. It does not make imperfect
titles perfect; but only prevents their
being made worse. Congress, by their act,
accept on these conditions. The claimants
of North Carolina, then, and also the Cherokees,
are exactly where they would have been,
had neither the act of cession, nor that of
acceptance, been ever made; that is, the latter
possess the right of occupation, and the
former the right of preemption. Though
these deductions seem clear enough, yet the
question would be a disagreeable one between
the General Government, a particular government,
and individuals, and it would seem very
desirable to draw all the claims of preemption
within a certain limit, by commuting for
those out of it, and then to purchase of the
Cherokees the right of occupation.—
To Henry Knox. Washington ed. iii, 192.
Ford ed., v, 237.
(N.Y.,
1790)
