4403. LANDS (Indian), Acquirement of title to.—
The State of Georgia, having
granted to certain individuals a tract of country,
within their chartered limits, whereof the Indian
right has never yet been acquired; with
a proviso in the grants, which implies that
those individuals may take measures for extinguishing
the Indian rights under the authority
of that Government, it becomes a
question how far this grant is good? A society,
taking possession of a vacant country, and
declaring they mean to occupy it, does thereby
appropriate to themselves as prime occupants
what was before common. A practice introduced
since the discovery of America, authorizes
them to go further, and to fix the limits
which they assume to themselves; and it seems
for the common good, to admit this right to a
moderate and reasonable extent. If the country,
instead of being altogether vacant, is
thinly occupied by another nation, the right of
the native forms an exception to that of the
newcomers; that is to say, these will only have
a right against all other nations except the natives.
Consequently, they have the exclusive
privilege of acquiring the native right by purchase
or other just means. This is called the
right of preemption, and is become a principle
of the law of nations, fundamental with
respect to America. There are but two means
of acquiring the native title. First, war; for
even war may, sometimes, give a just title.
Second, contracts or treaty. The States of
America before their present Union possessed
completely, each within its own limits, the exclusive
right to use these two means of acquiring
the native title, and, by their act of Union,
they have as completely ceded both to the General
Government. Art. 2d, Section 1st, “The
President shall have power, by and with the
advice and consent of the Senate, to make
treaties, provided two-thirds of the Senators
present concur”. Art. 1st, Section 8th, “The
Congress shall have power to declare war, to
raise and support armies”. Section 10th, “No
State shall enter into any treaty, alliance, or
confederation. No State shall, without the consent
of Congress, keep troops or ships of war
in time of peace, enter into any agreement or
compact with another State or with a foreign
power, or engage in war, unless actually invaded,
or in such imminent danger as will not
admit of delay”. These paragraphs of the Constitution,
declaring that the General Government
shall have, and that the particular ones
shall not have, the right of war and treaty, are
so explicit that no commentary can explain them
further, nor can any explain them away. Consequently,
Georgia, possessing the exclusive
right to acquire the native title, but having relinquished
the means of doing it to the General
Government, can only have put her grantee into
her own condition. She could convey to them
the exclusive right to acquire; but she could
not convey what she had not herself, that is
the means of acquiring. For these they must
come to the General Government, in whose
hands they have been wisely deposited for the
purposes both of peace and justice. What is to
be done? The right of the General Government
is, in my opinion, to be maintained. The
case is sound, and the means of doing it as practicable
as can ever occur. But respect and
friendship should, I think, mark the conduct of
the General towards the particular government,
and explanations should be asked and time and
color given them to tread back their steps before
coercion is held up to their view. I am
told there is already a strong party in Georgia
opposed to the act of their government. I should
think it better, then, that the first measures,
while firm, be yet so temperate as to secure
their alliance and aid to the General Government.
Might not the eclat of a proclamation
revolt their pride and passion, and throw them
hastily into the opposite scale? It will be
proper, indeed, to require from the government
of Georgia, in the first moment, that while the
General Government shall be expecting and
considering her explanations, things shall remain
in statu quo, and not a move be made towards
carrying what they have begun into
execution.—
Opinion on Georgia Land Grants. Washington ed. vii, 467.
Ford ed., v, 165.
(May. 1790)
