Opinion on Certain Georgia Land Grants
May 3. 1790
The state of Georgia having granted to certain companies of individuals a tract of country within their chartered limits, whereof the Indian right has never yet been acquired, with a proviso in the grant which implies that those individuals may take measures for extinguishing the Indian right 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 authorises them to go farther, 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 natives forms an exception to that of the new-comers; 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 pre-emption; 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. 1. War; for even war may sometimes give a just title. 2. Contract, or treaty. The states of America, before their present union, possessed completely, each within it’s 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. 2. sect. 2. ‘The President shall have power, by and with the advice of the Senate, to make treaties, provided two thirds of the Senators present concur.’ Art. 1. sect. 8. ‘The Congress shall have power—to declare war—to raise and support armies.’ sect. 10. ‘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 rights 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 grantees 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 governments; and explanations should be asked, and time and colour 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. Perhaps it might not be superfluous to send some person to the Indians interested, to explain to them the views of government, and to watch with their aid the territory in question.
PrC (DLC); entirely in TJ’s hand, but overwritten in a later hand (see note 1, TJ to Carmichael, 22 Aug. 1786); recorded in SJL under this date as “Opinion on sale of Indian lands. Georgia.”
This opinion involved the first of the Georgia sales of the Yazoo lands: an act of 21 Dec. 1789 disposed of about 10,000,000 acres to the South Carolina Yazoo Company, about 7,000,000 acres to the Virginia Yazoo Company, and about the same amount to the Tennessee Yazoo Company (ASP description begins American State Papers: Documents, Legislative and Executive, of the Congress of the United States, Washington, Gales & Seaton, 1832–61, 38 vols. description ends , Indian Affairs, i, 114; S. G. McLendon, History of the Public Domain of Georgia, 35–9). If TJ on this occasion urged a characteristic policy of respect and friendship instead of coercion—Freeman, Washington description begins Douglas Southall Freeman, George Washington, N.Y., 1948–1957, 7 vols. description ends , vi, 259, calls attention to the fact that this was TJ’s word—it was in response to demands that coercion be employed. On 20 Mch. 1790 Anthony Wayne wrote Henry Knox from Richmond, Georgia: “I am confident that it is the sincere wish of 19 out of 20 of the inhabitants of this state that the grant may be set aside or repealed; they are certainly much exasperated at the Conduct of the legislature upon that Occasion! Is it therefore wise, is it liberal, is it just to involve the innocent with the guilty and commit the state at large to the depredations of the Indians by withholding the troops and protection of the General Government from us? The State either had or had not a right to dispose of the western lands. If she had that right, she has a right to protection (although she acted imprudently). If she had not that right, the grant is a nullity. In either case the dignity and honor of the Union, as well as justice and humanity, join in stimulating them to a vigorous exertion of their Authority and Power, and to produce a conviction to the World that a Legation of the United States cannot be insulted with impunity.—for God’s sake, let us have at least the skeleton of an army, if it is only for the militia to assemble to, until a more proper and efficient force can be sent forward.” Wayne asked for the appointment of a general officer having power to call forth from North and South Carolina and Georgia so many of the militia, and in such proportions as “may be deemed necessary.” Knox replied by sending three companies—all, he said, that were in the power of the president to send. He added: “Whatever may have been the right of Georgia to the preemption of the Western lands, it is pretty well established that they have not right to enter into any treaty, bargain, or commercial transaction to purchase of the Indians their claims but under the auspices of the United States. Hence the State of Georgia could not delegate to the companies to whom they have sold the Chickasaw and Choctaw country a right which they do not possess, to wit of extinguishing under the authority of that state the claim of the Indians to the lands they occupy” (Wayne to Knox, 20 Mch. 1790; Knox to Wayne, 10 Apr. 1790; MHi: Knox Papers). Maclay, having seen Knox’s correspondence with Wayne and other papers that bore, he thought, evidence of “management on the face of them,” was certain that Knox intended to magnify the threat of danger in Georgia in order to raise additional troops (Maclay, Diary, p. 240–1, under 16 Apr. 1790). Knox appeared before a committee of the senate and on the “Method of touching that business” argued that a proclamation “unless aided by troops would be a dead letter” and that the policy of the government should be to cultivate friendly dispositions of the Choctaw and Chickasaw, extending trade to them agreeably to the treaty of Hopewell, and to engage them if necessary to assist in the coercion of the Creeks (“Minutes, whereby to give information on and opinions to a committee of the Senate this 1st April 1790” MHi: Knox Papers; parts of MS are missing). Washington obtained the opinion of Edmund Randolph along with that of Knox concerning the expediency of issuing a proclamation, but, on finding that Hamilton “had doubts of the clearness of the ground on which it was proposed to build this proclamation and do the other acts which were also submitted in the report,” he transmitted the whole to TJ for his opinion (Washington, Diaries, ed. Fitzpatrick, iv, 123, 125). The policy of avoiding a proclamation that would revolt their pride and passion was adopted, and it is noteworthy that in this initial discussion of the use of force to support the authority of the government Hamilton was on the side of moderation. It is natural that Knox, facing strong popular opposition to his military program, should have utilized the incident in his appearance before the senate committee, though it is doubtful that he used “all the art and address of ministerial management” that Maclay suspected. It is also natural that Hamilton should have aligned himself with TJ in support of a temperate policy at the time that he was in need of votes for assumption: in 1794 when the threat of overt opposition to fiscal measures appeared, his policy was altogether different. It is important to note that the proclamation under discussion here was not, as has been supposed, that issued at the conclusion of the treaty with the Creeks (Washington, Diaries, iv, 125, note 2; Randolph to TJ, 11 Aug. 1790). It is not known whether the proclamation Knox suggested at this time was reduced to writing; no text of it has been found.