No. II.

THE following is the correspondence referred to in page 99, of this volume, between Judge Clayton, of Georgia, and Chancellor Kent, of New York. It may be observed, that the Legislature of Georgia, having assumed jurisdiction over the Cherokee country, had passed a law forbidding all persons, Cherokees and others, to work the gold mines of those territories. Under this law a Cherokee was arrested for digging gold on his own land, or the land of his tribe, and was brought before Judge Clayton for trial. The Judge, with an honesty and independence, which did him great credit, ordered the release of the prisoner, on the ground, that this law of Georgia was a violation of the Constitution and treaties of the United States, and an infringement of the rights of the Indians. This decision gave great offence to the other authorities of the State,*

* See page 98, Vol. II.

and Judge Clayton was dismissed from his office, or rather, I believe, refused a re-appointment in the election of the Legislature. The first letter, as will be seen, is a note addressed by Judge Clayton to the Editors of a Georgia newspaper: "Milledgeville, Nov. 12, 1831.

"MESSRS. Editors,

In

"You will confer a favour by publishing the following letter of Chancellor Kent. making this request, I have only to remark, that the sole consideration for making it is, to submit the testimony of one, in favour of my legal reputation, whose character as a jurist will entitle his evidence to great weight. He is justly considered the Blackstone of America, and his character as a lawyer stands as high in Europe as it does in his own country. He has never been engaged in either party or political strifes, and his whole life has been devoted to legal research. This publication is asked under not the slightest temper of complaint for my late removal from office, for I hope I shall have it in my power, at a more convenient season, to lay before my fellow-citizens, such a statement of the whole matter, as will show there is no necessity, on my part, for either ill-will or reproach. "Respectfully yours,

VOL. II.

"A. S. CLAYTON."

"DEAR SIR,

"New York, Oct. 13, 1831.

"I was favoured yesterday with your letter of the 3d instant, together with the Southern Recorder of Sept. 29, containing your opinion in the case of the State of Georgia versus Canatoo.

"That opinion has been read by me with great care and attention, and agreeably to your request I subjoin the conclusions, to which my own mind has arrived, in answer to the two material points in the case.

"1. It appears to me that upon the whole, the statute applies to the case. I can only judge from the extracts from it contained in your opinion. The statute asserts that the mines alluded to are of right the property of Georgia, and it authorises the Governor to take possession of those mines, and to employ force to protect them from all further trespass. I presume such forcible possession has been taken, and that the offence alleged against the Cherokee Indian arose, subsequently. But the statute is so exceptionable, in reference to the rights of the Cherokees to their lands, (and which include the mines therein, as well as the trees and herbage and stones thereon,) under the existing treaties with them, and in reference to the

Constitution and constitutional authority of the United States, that I agree with you, that such a statute should receive an interpretation, if possible, favourable to constitutional and treaty rights. If such a statute does not apply in very terms, to the very case of a Cherokee Indian digging in the mines, the benign intendment would be that the Legislature did not intend it, because such an intention would contravene the clear rights of the Cherokees, to the undisturbed use and enjoyment of the lands within their territory, secured to them by treaty.

"2. But the better way is not to rest upon any such construction, but to go at once, as you have done, to the great and grave question, which assumes the statute to have intended to deprive the Cherokees without their consent and without purchase, of the use and enjoyment, in part at least, of their lands secured to them by national treaties, and which calls into discussion the constitutional validity of the statute.

"On this point I am entirely with you, and in my opinion your argument is sound and conclusive, and you have examined the subject with candour and accuracy, and with the freedom of judgment which your station and character dictate.

"I am most entirely persuaded, that the

Cherokee title to the sole use and undisturbed enjoyment of their mines, is as entire and perfect as to any part of their lands, or as to any use of them whatever. The occupancy in perpetuity to them and their posterity, belongs to them of right, and the State of Georgia has no other right in respect to the Indian property in their lands, than the right of pre-emption by fair purchase.

"No other interest in the lands, as property, belongs to the State, and to take possession of the mines by force, is substituting violence for law and the obligations of treaty contract. It appears to be altogether without any foundation, to apply the common law doctrine of waste to the case, and I cannot but think that the Legislature of Georgia would not have passed the statute, if they had duly considered that the Indian lands have never been claimed, or the occupancy of them, in the most free and absolute manner by the Indians, questioned, either by the royal Governments before the American Revolution, or by the Union, or by any State since, except in open wars, or except the claim was founded upon fair purchase from the Indians themselves. The proceeding of Georgia in this case is an anomaly, and I think it hurts the credit of free and popular governments, and the