Constitutional Whig. [volume] (Richmond, Va.) 1824-1832, 1832-03-30

me 18th section authorizes the Governor,
S"ou!u he deem Il necessary for the protection of
.no mines or the enforcement OF the laws in force
| q guard &c
Inc 18th section cnacts. 'that the said guard or
any member of them, shall be- ard they are hereby
I"'n"rlZcd and empowered to arrest any person
lrGaiIy charged with or detected in violation of
the laws of this State, and to convey as soon n>
Pr"G''cae, the person arrested, before Justice
Oh 'ne peace, Judge Of the superior, Justice OF
cordinm to lawn
me extra territorial power of every Legislature
peinS limited in its action, to its citizens or
rjeo!S, me very passage otths act is assertion
oi jurisdiction over the Cherokee nation, and Of
'u ,iSn's ana powers consequent on jurisdiction.
me hrSt step, then, in tn: inquiry which the
constitution and laws impose this Court is an
oNa'"'na'ioh OF the richtfuncss Of this claim.
ENnierica, separated from Europe by wide ocean,
was inhabited by distinct People, divided into
separate nations, Independent of each other and
OF the est " the world having institutions OF their
p"h' ana governing themselves by their own laws.
~ "i'iicNlt TO comprehend the proposition, that
the inhabitants of either quarter OF the globe could
have ri%htful original claims of dominion over the
inhabitants of the other or over the lands they
occupied; or that the discovery of either by the
other should give the discovcrcr rights in the
country discovered which anmul the pre- existing
| rights OF its ancient possossors.
hicr lying concealed for series of ages, the
enterPrlze OF Europe, guided by nautical science
conducted some of her adventurous sons into this
Western world. They found it il. possession of 4
| people who had made small progress in agriculture
| or manufactures, and whose general employment
was war, hunting, and fishing.
Dld these adventures, by sailing along the
coast, and occasionally landing on it, acquire for
the several Governments to whom they belonged,
or by whom they were commissioned, a riphtrll
property IN the soil, from the Atlantic to the Pa
chic; or righful dominion over the numerous PEG.
pie who occupied it, Or has nature or the great
lT NIL IL Il.
hunters and fishermen, or agriculturists and
manufacturers?
But power, war, conquest, give rights which, az.
ter possession, are conceded by the world, and
which can never be controverted by those on whom
they descend. We proceed, then, to the actual
state OF things, having glanced at their origin; he
cause holding 1t i'll recollection might she'd
some light on existing prctcnsions
me great maritime powers of Europe discover
Cd and visited different parts of this continent at
nearly the same time. The object was too i'm
mensc for any one of them TO grasp the whole;
ana the claimants were too powerful to submit to
tne exclusive or unreasonable prctension5 of any
single potentatc. To avoid bloody conflicts, which
might terminate dsastrousy to all, it was nccessa-
ry Tor the nations of Europe to establish some
principle which all would acknow ledge, and which
Shouiu decide their respective rights as between
themselves. This principle suggested by the ac:u.
al state of things, 'that discovery gave title
TO the Government by whose subjects or by whose
authority 1t was made, against all other European
Governments, which title niuht be consummutcd
by possesSion.'*
This principle, acknowledged by all Europeans
because 1t was the interest Of all TO acknowledge
IT, gave to the nation making the discovery, as its
inevitable consequence, the sole right OF acqu-
ring the soil, and making settlements on it. 1t
was an exclusive principle, which shut out the
right OF competition among those who had agreed
to 1T; not which could annul the previous
rights of those who had not agreed to it. 1t re-
gulated the right given by discovery among the
European discoveries; but could not affect the
rights of those already in possession either as
aboriginal occupants, occupants by virtue of
discovery made before the memory of man. 1t
gave the exclusive right to purchase, but did not
iound that right on denial of the right Of the pos
SCISSOR to sell.
The relation between the Europeans and the
natives was determined in each case by the parti-
cular Government which asserted and could main
tam this pre-cmptivc privilege in the particular
place The United States succeeded to all the
claims of Great Britain, both territorial and po-
iltlca but no attempts, far is known has
been made to enlarge them. So far as they exist
cd merely IN theory, were in their nature only
exclusive OF the claims of other European nations.
they still retain their original character, and
remain dormant. SO far they have been prac-
tIcalIy cxertcd they exist in fact are understood
by both parties, are asserted by the one, and add
mittcd by the other.
Soon after Great Britain determined on planting
colonies in America, the king granted charters TO
companies of his subjects, who associated for the
purpose OF carrying the views of the crown into !
effect, and of cnrching themselves. The first of
thcSc charters was made before possession was Ia
Ken otany part of the country. They purport gc-
morally to convey the soil from the Atlantic 10 the
south Sea. This soil was occupied by numerous |
and warlikc nations, equally willing and able to |
defend their possessions. The cxtravagant and
absurd idea, that the feeble settlements made on
Inc sea coast, or the companies under whom they
were made, acquired legitimate power by them to
govern the people, occupy the lands from sea
To sea- did not enter the mind of any man. They
were well understood TO convey the title which ac-
cording to the common law of European soycreirns
respecting America, they might rightGully convey
ana no more. This the exclusive rinht Of
purchasing such lands the natives were wilIinn
to sell. The crown could not be understood to
grant what the crown did not affect to claim, nor
was 1T so understood.
The power of making war is conferred By these
charters on The colonies, but defensive war alone
seems TO have been contemplated. In the first
charter to tic first and second colonies, they are
empowered, "ior their scvGra! dctcRccs TO Cncoun-
ter, cXpulsc, rcpcl, and resist, all persons who
shall, without license attempt to inlabit 'swithin
the said precincts aud limits of the said several CO.
lonIcs, or that shall enterprise, or attempt at any
tine hereafter, the least dctrimcnt annoyance
OF the said several colonies pautations"
The charter to Connecticut concludes general
power TO make defensive with these terms:
land upon ju&t causes TO invade and destroy the
natives, or other enemies Of the sad colony"
The same power, in the same words, is confcrr-
ed on the Government of Rhode Island.
This power TO repcl invasion, and upon inst
cause, to invade and destroy the natives authorizes
offensive as well as defensive war, but only con
Just cause" The very terms imply The existence
OF country to be invaded, and Of enemy who
has given Just cause Of war.
The charter to William Penn contains the fol
loving recital: land because, in remote Il coun-
try, near 50 many bggJdrous nations, the incur
SionS, as well Of the savd@cs themselves as Of 9th
or cneinics pirates. and robbers, may probably be
feared, therefore have given" dc. The ru-