-

ten dollars for his signature, as "Sky Carrier, his † mark," (p. 209); or wisely signed on both sides, as "Long John," "Major Jack Berry," "John Tall Chief;" ten in all, with each his mark, (p. 138.) On the other side we have the official reports of men of high and unblemished character, the two high commissioners of the general and state governments, who both concur in certifying to the FACT, under the responsibility of their official signature, that a majority of the chiefs did give their assent to the treaty, and in their presence subscribe it; and that such signature was received by them with all due caution. "In every instance," is the language of the United States commissioner, "where a signature was received, either General Dearborn or I distinctly inquired of the person offering to sign, whether he fully understood the subject, and whether he freely and voluntarily signed the assent. In each case a distinct affirmative answer was given." (Senate Documents.) And with this concurs the separate report of the secretary of war, the head of the Indian department.

Now what shall be thought, independent of its unconstitutionality, of the folly and absurdity of such admeasurement of evidence, the Indian against the white man; the drunk against the sober; depravity against honor; irresponsible against the highest official testimony? For ourselves we can only again say, that we wonder how men, too scrupulous themselves to take an oath, can so readily tamper with its solemnity in the case of others, and be so unscrupulous, at least with other men's consciences, as to be willing to administer it to such as, by their own showing, understood its nature so little, or esteemed its obligation so lightly. We certainly envy not the task of those who undertake to procure such Indian affidavits: it savors too little, in a religious view, of reverence for the GREAT NAME invoked; it borders too closely, in a legal one, on subornation of perjury. But, passing by so invidious a question, let us look at the conditions of and assent to this treaty, as common sense teaches us to look at them; that is, comparatively with former ones. We take one of the earliest for a sample.

In the year 1795, by one treaty, was extinguished the Indian title over more than eleven millions of acres, involving, of course, the removal of the occupants, whether willing or not; the treaty being made with fourteen different tribes, signed with ninety signatures; in three several instances such assent given but by a single chief for his tribe!! and in

no case by more than eighteen; the greatest, therefore, being less than one half of the acknowledged number to this present Seneca treaty, and the price paid for the Indian title, two cents per acre!!! less than one sixtieth of what is here paid; and all this under the direction and approval of one whose justice and benevolence even the remonstrants, we presume, will admit to stand without impeachment before the nation,WASHINGTON, the father of his country. From that time downward scarce a year has passed without similar purchases from the Indians, equally just or equally fraudulent, the annual amounts varying from one million of acres up to eightyfive millions!! (1825) the price paid for possession varying from one dollar per acre down to less than one mill!! the whole amount, in forty-three years, being four hundred and twenty millions of acres, at an average of about eighteen cents in price, and these treaties subscribed in no single instance, so far as we can ascertain, by a majority of the chiefs of such tribe, but, as is evident, by a very small minority. But to try this hinging question a little closer, confining our examination to the twelve treaties preceding the one in dispute, all made with this same tribe of Senecas, our facts being derived from examination of the treaties themselves.

6. 1817,"

29,

7. 1818, "6

17,

8. 1823, 66 3, 9. 1831, Feb. 28, 10. 66 July 20, 11. 1832, Dec. 29,

12. 1835, Aug. 24,

St. Mary's,

Moscow, N. Y.,
Washington,
Lewiston, O.,
Coroskin river,

Camp Holmés,

James B. Gardiner,

Gardiner and McElvaine, 13

Thus, then, stands the comparison; the present treaty having, even by the "Case's" own showing, a larger actual number of signatures (thirty-six) than eleven out of the twelve treaties previously made with this same tribe, and far greater than the greatest, when compared with total numbers. If, then, a majority of signatures of chiefs be necessary to give validity to a Seneca treaty, no treaty with them, save the present, is valid, for all others were signed but by a minority-this, alone, by a majority, so, at least, officially reported. In such dilemma, again, does an unconstitutional argument place the remonstrants. We have but to follow out their own

principle, and it leads at once to absurdity. But we make out another tabular statement for their satisfaction, or rather, we should say, for their instruction, showing that emigration is by no means such a novelty as they would lead us to believe. Twenty-five tribes!!! (all, we believe, save the Senecas and the fighting Seminoles) are now in the progress of removal, under similar treaties, to their new homes west of the Mississippi. Actual emigration thither began as far back as 1828, and has, since that, thus proceeded up, at least to 1838, since which we have no returns at hand:

But there is a last quarrel we have with such ignorant zeal. It is that of driving, by the weight of the unthinking benevolence awakened in its favor, in congress and out of congress, even the highest officers of our government, even the President of the United States, into a course of unconstitutional action touching a treaty legally made, constitutionally approved, and at length, definitively proclaimed. Now, this is a great evil, for it is striking a fatal blow at the constitution itself-leading the executive to tamper with the inviolability of the public faith, as well as to trample upon the sacredness of individual rights; this, indeed, were an enormity for peaceful men to be guilty of; yet, so it is, " since such act of annulling," to use the words of Marshall, "if legitimate, is rendered so by a power applicable to the case of every individual in the community. This treaty, from the moment of its proclamation, became supreme law; and, so far as rights were vested under it, as here, doubtless, beyond executive discretion to withhold, above the power of congress to rescind, and interpretable but by the Supreme Court of the Union-right or wrong, corrupt or uncorrupt, alters not the fact-"fieri non debet," it may be, "sed factum valet." Now, this is ruled law, whether the remonstrants like it or not; and to turn public attention to this unthoughtof revolutionary character of all such attempts, however ignorantly benevolent, to overthrow a ratified treaty, has led

us to placing at the head of our article Marshall's constitutional decisions bearing on these points.

The very first constitutional case that great judge was called on to decide, was one directly in point, going to limit the arbitrary exercise of executive discretion in withholding, to individual wrong, the completion of an act constitutionally perfected. We allude to the case, "William Marbury vs. James Madison," February term, 1803, (Cranch's Reports, 137-180.) The suit was for a commission withheld by President Jefferson, under executive discretion, after being officially signed and sealed, but not delivered.

Substitute "treaty" for "commission," and the whole argument is equally demonstrative against its present arbitrary extension. "The last act," is its language, "to be done by the president is the signature of the commission; he has then acted on the advice and consent of the senate to his own nomination. The time for deliberation has then passed. He has decided. What follows is prescribed by law, and not to be guided by the will of the president."

The second case we refer to denies even to a supreme legislature the power to re-open a contract, (in this case, too, an Indian treaty,) where private rights had vested, under any plea, even that of uncontradicted fraud in its negotiation. We allude to " Fletcher vs. Peck," February term, 1810, (6 Cranch's Reports, 87-148,) where an Indian grant by the state of Georgia, charged with bribery in its passage, a succeeding legislature on that specific ground annulled. The supreme court decided such annulment to be unconstitutional, and the grant to stand good. We again quote the words of Marshall: "If an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power. When, then, a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest those rights.' What then, we argue, the whole legislature cannot do, still less can a part of it. The other decisions we refer to go to settle the law as to the nature of Indian occupancy, putting the preemptive title to such land explicitly on the very ground that the Quaker plea, in its ignorance of law, denounces as fraudulent, namely, that such title stands independent of Indian will-that the fee is not in the Indian occupant that he is in a state of pupilage, and cannot convey-and that the preemptioner's rights over the land, whether in the hands of

government or individuals, come not from purchase or treaty with the red man, but are identical with that original power or right-call it whichever men may-of civilized humanity over the savage race-the right by which the European was justified in first setting foot on American shores, and European sovereigns justified in giving grants of lands within it. "Even be it conquest," says Marshall, "it is not for the courts of this country to question the validity of this title, or to sustain one which is incompatible with it." See "Johnson and Graham's Lessee vs. McIntosh," February term, 1823, (8 Wheaton's Reports, 543-605.) See also, "The Cherokee Nation vs. State of Georgia," January term, 1831, (5 Peters's Reports, 1-80.) Also, "Worcester vs. State of Georgia," January term, 1832, (6 Peters's Reports, 515–597.)

Now the study of these ruled cases we commend to the authors of this unruled "case" before us, in order that henceforth their zeal may be, as St. Paul recommends, "coupled with knowledge ;" and that the good and Christian women, doubtless, whose names stand first in the address to the Seneca nation, and who, by sub-committee, go on to instruct the president of the United States, "the house of representatives, and the governors of the states of New York and Massachusetts," as to their duty under this proclaimed treaty, may at least thus become somewhat better fitted for their task; and if they will not "keep silence" in halls of teaching, as their best friend recommends to them, at any rate that they may speak "discreetly," and not lay down the law in open contradiction to one whom the public have, hitherto, at least, distinguished as THE EXPOUNDER OF THE CONSTITUTION CHIEF JUSTICE MARSHALL.

In this light, then, do we find ourselves compelled, as faithful reviewers, to hold up to public condemnation the Quaker "case" before us-as a plan of Indian benevolence, ill-judged, contrary to all experience, and as such condemned over and over again by the nation for these thirty years past

*Their " Address," dated, "Farmington, New York, 6th month 19th, 1840," thus concludes: "We have at this time concluded to address the governor of Massachusetts, the governor of New York, and the house of representatives of the United States, on your behalf, etc.

(Signed,)

Rachel Hicks, jr., etc. etc.
'Maria Farrington,
Dorothy Golden,

Deborah Wharton."

"His proudest epitaph may be written in a line: Here lies the expounder of the constitution of the United States.'"- Story's Discourse,