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son, Doddridge, Dorsey, Dudley, Eager, Ellsworth,
NAYS.--Messrs. Alexander, Allen, Alston, Anderson, per, Lent, Lewis, Loyall, Lumpkin, Lyon, Magee, McCor,
Sanford, Scott, Shields, Speight, Sprigg, Standefer,
H. OF R.]
(Feb. 14, 1831. Mr. BELL asked, if the House decided in favor of “con- to writing, and the Speaker requires that the gentleman sideration,” what time would the discussion be in order--- send his motion to the Chair in writing. could it be continued from day to day, or would it be
Mr. EVERETT accordingly sent to the Chair the follimited?
lowing motion : The SPEAKER replied, it could only be continued to That the said memorial be referred to the Committee day, and the next days on which the presentation of peti- on Indian Affairs, with instructions to report a bill making tions would be in order, (namely, on Monday alone.) further provision for executing the laws of the United
Mr. EVERETT again rose, and said he felt himself un- States on the subject of intercourse with the Indian tribes; der the necessity of appealing from the decision of the and, also, for the faithful observance of the treaties beChair, on the correctness of entering the demand for the tween the United States and the said tribes. question of consideration; and he proceeded in support of The motion having been read, his appeal at some length-arguing that this was no motion Mr. WICKLIFFE demanded that the question be put or proposition offered to the House, but simply a petition on the “consideration” of the motion. He had no idea froin a portion of his constituents, which they, in the ex- of commencing another Indian war at this period of the ercise of their constitutional right, had presented to the session. House through him, their representative. He had laid it Mr. CONDICT called for the yeas and nays, and they on the table, under the rule; it came up to-day as a mat- were ordered; and the SPEAKER' having stated the ques. ter of course; its consideration required no motion, and tion, he had made none; the matter before the House was the
Mr. EVERETT said, if he understood the Chair that it petition itself, and to that he had a right to speak; it was was in order to preclude debate on his motion, by the á constitutional right to which the rule of consideration question of consideration,” he must appeal to the House could not apply, and could not cut off. It was with un- from the decision of the Chair. feigned reluctance lic made the appeal, but a sense of duty
The yeas and nays were ordered on the appeal. constrained him to do so. Mr. TUCKER, in a few remarks, defended his call for as it cannot be reported fully, is not attempted at all
Considerable debate now ensued on the appeal, which, the question of " consideration,” and his motive for mak- preceding outline being sufficient to show the reader the
His object was to save the time of the House from nature of the points which arose, and the course of probeing wasted in a useless debate.
ceeding on them, which is all that is intended by the The SPEAKER then rose, and, after stating the case, sketch. The appeal was supported by Mr. EVERETT and re.d the rules in point, which he explained at some length, Mr. Bates, of Massachusetts, and it was opposed, and the to show the correctness of his decision in entertaining the decision of the Chair defended, by Mr. Wayne and Mr. demand for "consideration." He referred particularly Thompson, of Georgia. Finally, to the fifth rule, which is as follows: “When any motion
Mr. EVERETT said, yielding to the wishes of several or proposition is made, the question, Will the House of his friends, he would withdraw the appeal, and meet now consider it shall not be put, unless it is demanded the question at once. by some member, or is deemed necessary by the Speaker.” During the whole time while he had presided in consider the motion?” and was decided in the affirmative,
The question was then put-" Will the House now the chair, he had never cxercised the privilege of re- by yeas and nays, as follows: quiring the question of consideration; it was now required YEAS.—Messrs. Angel, Archer, Armstrong, Bailey, N. by another member, and he had no right to refuse it, it Barber, Barnwell, Barringer, Bartley, Bates, Beekman
, being in order under the rule. Mr. WAINE asked if he was to understand that the mo- Campbell
, Childs, Chilton, Clark,
Bell, Buchanan, Burges, Butman, Cahoon, Cambreleng tion of the gentieman from South Carolina (Mr. Tucker] Cowles, Crane, Crawford, Crockett, Creighton, Crownin: was in order before the gentleman from Massachusetts shield, John Davis, W. R. 'Davis, Deberry, Denny, Dickins [Mr. Even ETT] had submitted any proposition. virtually, a motion before the House, on taking up the Everett, Finch, Forward, Fry, Grennell, Gurley, Hemp petition for disposal. Mr. WAYNÉ thought that did not follow of course. Kendall, Kincaid, Adam King, Letcher, Mallary, Marr:
hill, Hodges, Hughes, Hunt, 'Huntington, Ihrie, Johns, The gentleman from Alassachusetts had not submitted any Martindale, Lewis
. Maxwell, McCreery,' Mercer, Miller, proposition relative to the petition; and, until he did that, Nuckolls, Pierson, Ramsey, Randolph, Reed, Richardson
, the House could not know what his motion would be, or Rose, Russel, William B. Shepard, "Aug. H. Shepperd, would be voting in the dark. He maintained that the L. Storrs, Strong, Sutherland, Swann, Swift, Taliaferro, motion for the disposition of the petition, but at present Verplanck, Vinton, Washington, Whittlesey, Campbell
, P. the demand of “consideration" he thought premature. White, Williams, Wilson, Young:-101.
Mr. TUCKER then withdrew his call for the question of consideration.
Mr. EVERETT said it was his intention to debate the Brodhead, Brown, ' Carson, Chandler, Claiborne, chay petition which he had presented to the House; and when Coke, Coleman, Conner, Craig, Crocheron, Daniel, Diaa right which was sanctioned by the practice of the British Earlı, Findlay, Ford, Foster, Gaither, Gilmore, Gordon, House. During the last war, many important questions Holland, Hoffman, Howard, Hubbard, Thomas Irwin
The SPEAKER. There must still be a motion before son, Cave Johnson, Laniar, Lea," Leavitt, Lecompte, Let the House to authorize debate. members were atte
ting to address the Chair] I will then ton, Patton, Pettis, Polk, Potter, Powers, Rencher, Roanes subinit a motion before I sit down. of any member, to require that every motion be reduced Wayne, Weeks, Wickliffe, Yancey. --93.
FEB. 14, 1831.]
[H. OF R.
Mr. EVERETT then rose, and addressed the House as straction; not a word; not a form of Government; it is the e follows:
undisputed paramount operation, through all the States, In presenting this subject last week to the House, I of those functions with which the Government is clothed observed, that it was with regret that I found myself by the constitution. When that operation is resisted, obliged to bring it forward in a manner, strictly parlia- the Union is in fact dissolved. I will not now dwell on mentary indeed, but somewhat unusual. I should have this idea; but the recent transactions in Georgia have been preferred to submit this great subject to the consideration already hailed in the neighboring British provinces as the of the House by the more usual course of a resolution. I commencement of that convulsion of these United States, have had a resolution prepared for that purpose, and ly- to which the friends of liberty throughout the world look ing in my desk for several weeks; but the Chair knows forward with apprehension, as a fatal blow to their cause. that there has not been a moment, for several weeks, when If any further apology were needed for bringing this a resolution could be offered but by the unanimous con- matter before the House, it might be the fact that it has sent of the House. Such consent I could not ask on such been frequently referred to us. It has formed a promia subject. I should have been better pleased to meet the nent topic in the two annual communications of the Chief subject on a report from the Indian committee, to whom, Magistrate. Numerous memorials on both sides of the
in connexion with very numerous memorials from various question have presented it to us; reports in both Houses 4 parts of the country, with the President's message, and of Congress have discussed it; but, owing to soine strange
with the petitions of the Creek and Cherokee Indians, it fatality, it has never been plainly and decidedly met.
has been referred. No report, however, has proceeded The Secretary of War tells us that a new era has withs from that committee, and no intimation has been given in a few years arisen in relation to our Indian affairs. He that any is to be expected.
does not indicate precisely what marks the new era; but, In this state of things, urged by my sense of duty, ad. in one respect, there has unquestionably arisen a new era monished by several expressions of public sentiment com- in this department, that of substituting Executive decimitted to my charge by the people i represent, and look-sion for congressional enactment. Formerly the Execuing upon the subject as one of great, of paramount-ay, tive only carried into effect our laws and treaties made by sir, of most painful importance-a subject eminently re- the treaty-making branch of the Government. Now the quiring the interposition of this House-I have felt my- President, 1st, permits the States to annul the treaties, self constrained in the forbearance of others much better and proceed on their declared want of validity, and, 2d, qualified to take this step to make this effort to bring it annuls the laws himself, and permits his Secretary to under the consideration of the representatives of the come down to Congress, with an argument to prove that people.
a law substantially coeval with the Government is unconI should think, sir, that a positive decision of this ques-stitutional. I am willing to receive the Secretary's argution by Congress would be highly desirable to the friends ment for what it is worth; but really, sir, I have studied of the administration. They cannot, I should think, wish the constitution unsuccessfully, if the mere opinion of a to leave with the Executive the responsibility of sitting Secretary, with or without an argument, renders a law still and witnessing the violation of a very large number of unconstitutional, and makes it cease to be obligatory. treaties and compacts, and of the clearest provisions of But to this I shall return, only repeating, now, that the law. No man surely can pretend that such a policy can assumption of these two principles in our Indian affairs be within the competence of the Executive; and if, for does, indeed, constitute a new era. reasons of necessity, or reasons of State, or any other rea Sir, I know the delicacy of this subject. I approach it sons, the treaties with the Indians are to be annulled, and with reluctance and pain, under the most imperious sense the laws touching our intercourse with them converted of duty. I would gladly have put it by, could I have jusinto a dead letter, it surely cannot require an argument tified myself in so doing. I know, by past experience, to prove that Congress is the only power by which this the odium I am to incur. I know that, humble as I am, can be done with any show of rightful authority. the denunciations of hundreds of presses throughout the
I cannot disguise my impression, that it is the greatest country await me. I have seen within a week, in a paper question which ever came before Congress, short of the published at this place, and which has been made the question of peace and war. It concerns not an individual, channel of the most confidential communications between but entire communities of men, whose fate is wholly in the President and the people; I have seen the course of our hands, and concerns them--not to the extent of affect the minority of this House who voted on the Indian bill ing their interests, more or less favorably, within narrow last year-a minority comprising some of the most respectlimits. As I regard it, it is a question of inflicting the able friends of the President, and amounting to very pains of banishment from their native land on seventy or nearly one-half of the House--ascribed to vile faction. eighty thousand human beings, the greater part of whom But, disagreeable as the consequence may be to one are fixed and attached to their homes in the same way who loves strife as little as I, I cannot keep silence when
We have lately seen this House in attend- I hear the laws of the land declared unconstitutional, by ance, week after week, at the bar of the other House, those executive officers who have no other duty in referwhile engaged in solemn trial of one of our own function.ence to the laws, but to enforce them; when I see treaties aries, for having issued an order to deprive a citizen of violated by States who are parties to them; treaties sanchis liberty for twenty-four hours. It is a most extraordi- tioned by all the forms of the constitution, and ratified by nary and astonishing fact, that the policy of the United the Senators representing the very States foremost in the States toward the Indians--a policy coeval with the revo- violation. I cannot keep silence when I see the constitulution, and sanctioned in the most solemn manner on in- tion invaded; the honor of the country tarnished; the numerable occasions—is undergoing a radical change, Union impaired. If my whole course, during the six which, I am persuaded, will prove as destructive to the years that I have been honored with a seat on this floor, welfare and lives of its subjects, as it will to their rights; will not protect me in the judgment of others from the and that neither this House, nor the other House, has imputation of vile and factious motives, I shall have at ever, even by resolution, passed directly upon the ques- least the consciousness in my own bosom, that a sense of tion.
public duty, and that alone, has impelled me to the course But it is not merely a question of the welfare of these i have taken. dependent beings, nor yet of the honor and faith of the Sir, the Secretary says a new era has arisen in our Indian country which are pledged to them--it is a question of affairs. This is true. Up to the year 1828, the course the Union itself. What is the Union? Not a mere ab- of proceeding in our Indian affairs is well known, at least
that we are.
H. OF R.]
(Feb. 14, 1831.
in reference to all the tribes whose rights are now in con-protect it, as well as to protect those who own it. By troversy. The United States had negotiated treaties with what community ought these laws to be enacted? Laws all the Southwestern tribes. Our relations with them, there have always been, and laws there must continue and the boundary between them and us, were regulated to be, emanating from some power capable of enacting by treaty; and by the intercourse law framed in pursuance them. Where is that power? It must be in Congress, of the same policy. A limited and qualified sovereignty, or in the Cherokees. Congress bas never exercised it, sufficient to enable them to contract these treaty obliga- the Cherokees always have. I have never heard that tions, was conceded to the tribes. No State had pre-their power was doubted.” tended to extend her laws over either of these tribes till Governor Troup, in 1825, March 25th, issued a procla. the year 1828. To show the various views entertained of mation, from which the following is an extract: "Wherethis subject, I will cite several authorities, which will as it is provided in said treaty that the United States abundantly sustain me in this position. The distinguished shall protect the Indians against the encroachments
, individuals whom I quote, and the present Chief Magis- hostilities, and impositions of the whites, so that they trate at the head of them, took views somewhat different suffer no interruption, molestation, or injury, in their from each other, but none of them, I believe, intimated persons, goods, effects, their dwellings, or the lands that the separate States possess the right now claimed. ‘they occupy, until their removal shall have been accom
In 1821, the Creek Path Indians, being dissatisfied with plished, according to the terms of the treaty: the conduct of their brethren of the Upper Towns, ap “I have therefore thought proper to issue this my proplied to General Jackson, then Major General of the clamation, warning all persons, citizens of Georgia, or Southern division, requesting him to use his influence with others, against trespassing or intruding upon lands occuthe General Government, to procure for the said Creek •pied by the Indians, within the limits of this state, either Path Indians an inalienable reservation of a part of their for the purpose of settlement or otherwise, as every lands, on consideration of selling their proportionate share such act will be in direct violation of the provisions of of the common lands of the nation. General Jackson the treaty aforesaid, and will expose the aggressors to was in favor of this project, and wrote to Mr. Calhoun, "the most certain and summary punishment by the authothen Secretary of War, as follows:
rities of the State and the United States. “I do believe, in a political point of view, as well as in “All good citizens, therefore, pursuing the dictates of “justice to these people, their prayer ought to be noticed. “good faith, will unite in enforcing the obligations of the It is inviting Congress to take up the subject, and ex- ' treaty, as the supreme law,” &c. 'ercise its power, under the Hopewell treaty, of regu Governor Troup, being exceedingly desirous to basten
lating all the Indian concerns as it pleases. This is a the survey of the lands acquired by the treaty of the • precedent much wanted, that the absurdity in politics Indian Springs, asked permission to survey them, of Ge! • may cease, of an independent, sovereign nation holding neral McIntosh, the chief of the emigrating party, as a 'treaties with people living within its territorial limits, necessary preliminary. "acknowledging its sovereignty and laws, and who, al. In 1826, a Senator from Mississippi, now deceased, (Mr.
though not citizens, cannot be viewed as aliens, but as Reed,) disclaimed any right, on the part of the State, o 'real subjects of the United States." Here the right of extend her jurisdiction over the Indians. legislating for the Indians is claimed, not for the States, session, said he, of the Legislature of Mississippi, a prop but for the United States; and this under the treaty of position was made to extend the civil power of their courts Hopewell, a treaty negotiated before the adoption of the to their own citizens, who had contracted debts within the federal constitution, and containing the amplest guaranties State, and had fled to this savage sanctuary. The matter of the rights of the Cherokees.
was debated many days, and it was at last decided that In treating with the Cherokee Indians, in 1823, Messrs. there existed no power in the State to extend its laws in Campbell and Meriwether, citizens of Georgia, animated the manner sought by the proposition." by a strong zeal for the acquisition of Indian lands, use These authorities, I think, will abundantly prove that this language:
“The sovereignty of the country which the claim of the Southern states to exercise jurisdiction you occupy is in the United States alone; no state or over tribes with whom there are existing treaties, forme •foreign Power can enter into a compact with you. a new era. Whether it be that to which the Secretary of * These privileges have passed away, and your inter- War alludes, I pretend not to decide. course is restricted exclusively to the United States." While the Secretary of War announces this new era, In the year 1824, March 10th, the Cherokees are
spoken the President in his message at the opening of the session of, in the following manner, in a letter addressed by the informed us, that “the benevolent policy of the Govern Senators and Representatives of Georgia to the Secretary ment, steadily pursued for nearly thirty years, in relation of War: “If the Cherokees are to be viewed as other to the removal of the Indians beyond the white setle
Indians, as persons suffered to reside within the territorial ments, is approaching to a happy consummation.". This limits of the United States, and subject to every re- statement appears to me at variance with that which was straint which the policy and power of the General made in the annual message of the last year. In that •Government require to be imposed on them, for the document, we were told that it has long been the policy interest of the Union, the interest of the particular of Government to introduce among Indians the arts of *States, and their own preservation, it is necessary that civilization, in the hope of gradually reclaiming them “these misguided men should be taught by the General from a wandering state.” This is certainly a benevolent . Government, that there is no alternative between their policy: and this is the policy which has been steadily • removal beyond the limits of the State of Georgia and pursued
for nearly thirty years
. But last year, the Presi their extinction."
dent added: “This policy has, however, been coupled In 1824, Judge White, now the distinguished Senator with another, wholly incompatible with its success. from Tennessee, gave an opinion, in which he expressed fessing a desire to civilize and settle them, we bave, at the himself as follows: “Under the parental care of the same time, lost no opportunity to purchase their lands • Federal Government, the Cherokees have been in a and thrust them further into the wilderness. By this 'good degree reclaimed from their savage state. Under means, they have not only been kept in a wandering state, their patronage, they have become cnlightened; they but have been led to look upon us as unjust and indifferent “have acquired a taste for property of their own, from to their fate. Thus, though lavish in its expenditures "the use of which they can exclude all others; they have the subject, Government has constantly defeated its owa .acquired the property itself. There must be lawy to policy.",
'At the last
FEB. 14, 1831.)
(H. OF R.
Last year the benevolent policy of settling and civilizing 1830. This example of Georgia was imitated by Alabama them had been thwarted by another, that of removal to and Mississippi. By these state laws, the organization the West, declared to be incompatible with its success. previously existing in the Indian tribes was declared unThis year the removal to the West is declared to be the lawful, and was annulled. It was made criminal to exer. benevolent policy which has been steadily pursued. In cise any function of Government under authority derived my, judgment, the view taken in the message of last year from the tribes. The political existence of these comis the sounder.
munities was accordingly dissolved, and their members But the policy of removal has, I grant, been pursued declared citizens or subjects of the States. What a consteadily for thirty years, but never in the same manner as trast, in two or three years! In 1826, after many days now. It was never thought of, that all the treaties and debate, the Legislature of Mississippi decided that it had laws of the United States protecting the Indians could be no right to pass a law to pursue its own citizens, being annulled, and the laws of the States extended over them; fugitive debtors, into the Indian country. In 1829, the laws of such a character that it is admitted, nay urged, same State extends all its laws over the Choctaws, abrothat they cannot live under them. The policy of removal gates their Government, and denounces the punishment has been pursued by treaty, negotiated by persuasion, of imprisonment on any person who should exercise any urgency, if gentlemen please, with importunity. But the office under the authority of the tribe. compulsion of State legislation, and of the withdrawal of The Indians, as was natural, looked to the Government the protection of the United States, was never before of the United States for protection. It was the quarter heard of. If the President means that the policy of re- whence they had a right to expect it-where, as I think, moval under this compulsion is thirty years old, I do not they ought to have found it. They asked to be protected know a fact on which his proposition can stand for a in the rights and possessions guarantied to them by nu
However pursued, the policy of removal had merous treaties, and demanded the execution, in their been attended with limited success. Vast tracts of land favor, of the laws of the United States governing the had indeed been acquired of the Southwestern tribes, but intercourse of our citizens with the Indian tribes. They chiefly by bringing their settlements within narrower came first to the President, deeming, and rightly, that it limits. Between the years of 1809 and 1819, about one was his duty to afford them this protection. They knew third of the Cherokees went over to Arkansas, and the him to be the supreme executive officer of the Governhardships and sufferings encountered by them were a ment; that, as such, he had but one constitutional duty to chief cause why their brethren, the residue of the tribe, perform toward the treaties and laws--the duty of exe. resisted every inducement held out to persuade them also cuting them. The President refused to afford the proto emigrate. The Choctaws, by the treaty of Doak's tection demanded. He informed them that he had no Stand, acquired a large tract of country between the Red power, in his view of the rights of the States, to prevent river and the Canadian; but would not, in any consider their extending their laws over the Indians; and the Secreable numbers, emigrate to it. In 1826, a part of the tary of War, in one of his communications to them,
Creeks were forced, by the convulsions in that tribe, to adds the remark, that the President had as little inclina- fine emigrate, under the treaty of that year. In 1828, the tion as power to do so.
Choctaws and Chickasaws sent a deputation to explore the When this decision of the President was taken, does country west of Arkansas, which returned dissatisfied with not certainly appear. On the 23d day of March, 1829, its appearance.
he informed a delegation of Creek Indians, that, if they While the policy of removal was going on with this remained, they must become subject to the law of Alalimited success, that of civilization, the truly benevolent bama. On the 11th of April, the superintendent of the policy, was much more prosperous, The attempt to Bureau of Indian Affairs, by direction of the Secretary of settle, to civilize, and to christianize some of these tribes War, stated to the Cherokee delegation, that the Secresucceeded beyond all example. If the accounts of their tary of War is not now prepared to decide the question previous state of barbarism are not exaggerated, the an. involved in the act of the Legislature of Georgia to which nals of the world do not, to my knowledge, present you refer, in which provision is made for extending the another instance of improvement so rapid, within a single laws of Georgia over your people, after the 1st of June, generation; unless it be that which has been effected, by 1830. It is a question which will doubtless be the suba similar agency, in the Sandwich Islands within the last ject of congressional inquiry, and what is proper in reten years.
gard to it will no doubt be ordered by that body. During all the time that these two processes were going “In regard to the act of Georgia, no remedy exists on, that of removal, (declared last year by the President short of one which Congress alone can apply." to be inconsistent with civilizing them,) with partial suc On the 18th of the same month, a letter of the SecreCess; and that of settling and improving their condition, tary of War, to the same delegation, tells them, in the on this side of the Mississippi, in which the success had most positive terms, that the Indians must submit to the been rapid and signal, no attempt was made to encroach State laws. upon their limited independence. The right of the On the 14th of October, the Secretary, writing to GoUnited States to treat with them was not questioned; the vernor Forsyth, uses this language: “At an early period, States never attempted to legislate over them; and the therefore, when this question arose, the Cherokees were possessions and rights guarantied to them by numerous 'given distinctly to understand that it was not within the treaties, were considered by them and by us as safe competency or power of the Executive to call in quesbeneath the protection of the national faith. But, at 'tion the right of Georgia to assert her own authority with. length, under the late administration of the General Go- in her own limits; and the President has been gratified to vernment, the Southwestern States, taking advantage of witness the extent to which a principle so reasonable in the political weakness of that administration, seemed de- itself, and so vitally important to State sovereignty, has termined to adventure the experiment, how far they could received the approbation of his fellow-citizens. This oft go, to effect, by a new course of State legislation, a re- 'asserted and denied right being settled, on the side of volution in the Indian policy of the country.
'the State, to the extent that Executive interference could Georgia led the way. In 1828, she passed a summary ·go, it was expected and hoped that a little longer conti. law, to take effect prospectively, extending her jurisdic-nuance of that forbearance which Georgia has so long tion, civil and criminal, over the Ind.an tribes within her indulged, was all that was wanted to assure to her the purlimits. In 1829, this law, with more specific provisions, poses and objects she had before her; and after a manner, was re-enacted, to take effect on the 1st day of June, l'800, to which philanthropy could take no exception."
H. OF R.]
(FEB. 14, 1831.
Such was the fate of the question which was to be the may annul any law and all the laws in the statute book,
answer this question, by asking another: how is he autho At the ensuing session of Congress, a memorial was rized to arrive at the conclusion that a law is unconstitu. presented to this House, signed by three thousand and tional? Is he created by the constitution a functionary to eighty-five individuals of the Cherokee tribe. Another pass on the unconstitutionality of laws? I can find no memorial was laid upon our tables from the Creeks. The such power given him in the constitution. It is one thing subject was also presented to us in the annual message of for a law to be ascertained and declared unconstitutional, the President, disclosing a state of facts which seemed to by the competent tribunal, and another thing for it to be require, as well as to invite, the decisive action of Con- thought unconstitutional, by any citizen or officer called gress. Finally, the public mind was extensively awaken- on to obey or to enforce it. The citizen is not bound to ed. Very numerous memorials, on the subject of the re- obey an unconstitutional law: for it is no law. But, if he volution which was going on in our Indian policy, were undertakes to disobey a law, because, in his private judg. sent in to Congress. Some of these (and of this character ment, it is unconstituitional, it is at his risk and peril; and was the first presented) approved the change: by far the it will not probably be long before some process of law greater part condemned it.
will teach him that he is not authorized finally to adjudiIn this way, the question of the right of the State to cate such a question. An executive officer, high or low, extend her laws over Indian tribes, in contravention of is certainly not bound to execute an unconstitutional law; treaties and the laws of the United States, was brought but his simply thinking it to be unconstitutional, is a very before Congress in the fullest and amplest manner. It different affair. was not, however, directly met. The President had, in Suppose a collector should think the tariff unconstitu. the recess of Congress, declared that he could not, and tional, could he forbear to collect the duty? Could the would not, enforce the treaties and laws. The Secretary of Secretary of the Treasury, holding the same opinion, reWar had almost sneered at the idea that the Indians could mit the duty? Could the President direct his Secretary possess rights under a treaty forty years old; as if the va- to remit it? lidity of a treaty were impaired by the length of time its In the Government under which we live, a power is provisions had been in force. But the treaties were still provided to pass on the constitutionality of laws. The preserved in our archives. The intercourse law founded President is not that tribunal. His office is executive. upon them still stood unrepealed on the statute book; and The opinion he holds of the constitutionality of a lav, it appears to me that the proper way in which this ques. (except when called to sign it on its passage,) he holds tion was to be met, would have been a proposition to re- not officially, but as any other citizen, at luis peril; and, peal the laws and abrogate the treaties.
as it is his sworn duty to execute the laws, if he refuses In my judgment, there was an error in the first step to execute à law, for whatever cause, he is guilty of a taken by the President. He decided a question which high breach of official duty, and commits an impeachable he had no constitutional competency to decide. When offence. It is the province of this House to hold him to the first movement was made by the States, he should his duty. have interposed to maintain the treaties and enforce the There is no end to the absurd consequences which laws, and have referred the subject to Congress. What would flow from an opposite principle. To what would other power has the Executive over a treaty or a law, but it not lead? If the President may annul a law which be to enforce it? The principle assumed by the President thinks unconstitutional, the Secretary may annul another and by the Secretary is, that, whenever the Executive which he thinks unconstitutional; and so may any of his thinks a law unconstitutional, he may forbear to execute clerks. The Clerk of your House may refuse to carry a it. Now, how will this operate on other questions? Sup- bill which you pass to the Senate, if he thinks it uncon. pose Mr. Adams had thought the compact of 1802 unconstitutional: for, in that case, it is no more a law, on this stitutional, (as it was held to be in this debate last winter principle, than an old newspaper. And, if gentleinen by a Senator from Alabama,) could he have refused to contend that they reserve to the President alone this disenforce it--could he have forborne to expend an appro- pensing power of refusing to execute laws which, in his priation granted to carry it into effect? The President private judgment, are unconstitutional, they merely give has plainly intimated that the Bank of the United States us, instead of the anarchy which would arise from its beis unconstitutional. Is he thereby authorized to put it ing possessed by all the executive officers, a perfect out of the pale of the law! A very respectable portion Oriental despotism, produced by imparting it to one. of the community regards the tariff' as unconstitutional, We have heard a good deal said about nullification, and and propositions have been made to annul it by the au- no small opprobrium attached to the word. Has it nerer thority of a State, and within its limits. But who ever occurred to some gentlemen, willing enough to stigmatize heard that the President and the Secretary of the Trea- that doctrine, that they themselves have lent their counsury might between them declare it unconstitutional, and, tenance to the same doctrine, not in theory alone, but in as such, null and void?. The intercourse law was passed, practice? Georgia orders a survey of the Cherokee as it stands, in 1802; the substance of it was enacted in lands. The law of 1802 makes it highly penal to survey 1791; and the Secretary of War, with the full concurrence lands belonging or secured to Indian tribes by treaty. It of the President, lays his hand on this law, which is forty subjects those who trangress the law to a thousand dollars years old, tells us it is unconstitutional, and, as such, not fine and twelve months' imprisonment, and authorizes the obligatory.
President to call out a military force to execute the law. Let us but consider the extravagance of this doctrine. The President tells all concerned that he will not enforce The constitution gives to the President a veto on an act the law, because he thinks it unconstitutional. Is not of Congress in its passage; and, if he withholds his sig- that nullification? The convention of the judges of nature, it fails to become a law. But, even without the Georgia decide all Indian treaties to be unconstitutional. sanction of his name, without the Executive concurrence, Is not that nullification? And yet, if I mistake not, prowhich may be withholden on the very ground of uncon- positions have been made in the quarter where this nullstitutionality, the act becomes a law if two-thirds of Con- fication is practised by wholesale, to censure the doctrine gress adhere to it. But of what use is this or any other as theoretically advanced in a neighboring State. limitation on the exercise of the President's veto, if he I have remarked that the direct way to meet this ques.