The Writings of Thomas Jefferson, Vol. 7 (of 9) / Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private

by Thomas Jefferson

May 3d, 1790.

The State of Georgia, having granted to certain individuals a tract of country, within their chartered limits, whereof the Indian right has never yet been acquired; with a proviso in the grants, which implies that those individuals may take measures for extinguishing the Indian rights 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, authorizes them to go further, 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 native 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 preëmption, 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. First, war; for even war may, sometimes, give a just title. Second, contracts or treaty.

The States of America before their present union possessed completely, each within its 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. 2d, Section 1st. "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. 1st, Section 8th, "The Congress shall have power to declare war, to raise and support armies." Section 10th, "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 right 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 grantee 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 government, and explanations should be asked and time and color 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.