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.”