From Thomas Jefferson
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, & 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 farther, & to fix the limits which they assume to themselves; & it seems for the common good to admit this right to a moderate & 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; & 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: & by their act of union they have as completely ceded both to the general government. Art. 2. sect. 1. “the President shall have power, by & 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 & 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, & that the particular ones shall not have, the rights of war & treaty, are so explicit that no commentary can explain them further, nor can any explain them away, cons[e]quently 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 & 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 & friendship should, I think mark the conduct of the general towards the particular governments; & explanations should be asked, & time & 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 & aid to the general government. might not the eclat of a proclamation revolt their pride & passion, & 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 & considering her explanations, things shall remain in statu quo, & 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, & to watch with their aid the territory in question.
ALS (letterpress copy), DLC: Thomas Jefferson Papers.
Jefferson’s opinion concerns the sale of land to the Yazoo companies. See Henry Knox to GW, 15 Feb. 1790, n.1. On 28 April GW noted in his diary that he had received from Henry Knox “a report respecting the Sale of certain Lands by the State of Georgia; and the consequent disputes in which the United States may be involved with the Chicasaws & Choctaw Nations; part, if not the whole of whose Countries, are included within the limits of the said Sale. This report refers to the Act of the Legislature of Georgia, by which this sale is authorized and to the opinion of the Attorney General respecting the Constitutionality of the Proceeding—submitting at the same time certain opinions for the consideration of the Presidt” (Diaries description begins Donald Jackson and Dorothy Twohig, eds. The Diaries of George Washington. 6 vols. Charlottesville, Va., 1976–79. description ends , 6:69). Although neither Knox’s nor Randolph’s opinion has been found, it is likely that Knox’s views were similar to those expressed in his report to GW, 22 Jan. 1791, that “although the right of Georgia to the pre-emption of said lands should be admitted in its full extent, yet it is conceived, that should the said State, or any companies or persons claiming under it, attempt to extinguish the indian claims, unless authorised thereto by the United States, that the measure would be repugnant to the aforesaid treaties, to the Constitution of the United States, and to the law regulating trade and intercourse with the indian tribes” (DNA: RG 46, First Congress, Records of Legislative Proceedings, President’s Messages). As the request for opinions on the Yazoo companies indicates, GW had quickly established the procedure of requesting advice from his cabinet. See Jefferson to GW, 1 April 1790, n.1. An undated summary, in GW’s writing, of the provisions of the Georgia law and the minority protest against it can be found in DLC:GW.