A Biography of Henry Clay, the Senator from Kentucky / Containing Also, a Complete Report of All His Speeches; Selections From His Private Correspondence; Eulogies in the Senate and House; and a Poem, by George D. Prentice, Esq.

by Unknown

The next section of the act is in these words: ‘and be it further enacted by the authority aforesaid, that if any person dispossessed of a lot of land under this act, or the act of which it is amendatory, shall go before a justice of the peace or of the inferior court, and make affidavit that he or she was not liable to be dispossessed under or by any of the provisions of this or the aforesaid act, and file said affidavit in the clerk’s office of the superior court of the county in which said land shall lie, such person upon giving bond and security in the clerk’s office for the costs to accrue on the trial, shall be permitted within ten days from such dispossessing to enter an appeal to said superior court and at said court, the judge shall cause an issue to be made up between the appellant and the person to whom possession of said land was delivered by either of said agents, which said issue shall be in the following form.’

[Mr. Cuthbert, of Georgia, here interposed; and having obtained Mr. Clay’s consent to explain, stated that he had unfortunately not been in the senate when the honorable senator commenced his speech; but had learned that it was in support of a memorialfrom certain Cherokee Indians in the state of Georgia, who desired to emigrate. He must be permitted to say, that the current of the honorable senator’s remarks did not suit remarkably well the subject of such a memorial. A memorial of a different kind had been presented, and which the committee on Indian affairs had before it, to which the senator’s remarks would better apply. The present discussion was wholly unexpected, and it seemed to him not in consistency with the object of the memorial he had presented.]

Mr. Clay replied, that he was truly sorry the honorable gentleman had been absent when he commenced speaking. He had delayed presenting the memorial, because he observed that neither of the senators from Georgia was in his seat, until the hour when they might be expected to be present, and when one of them, (Mr. King,) had actually taken his seat. If the honorable senator had been present he would have heard Mr. Clay say that he thought the presentation of the memorial a fit occasion to express his sentiments, not only touching the rights of these individual petitioners, but on the rights of all the Indian tribes, and their relations to this government. And if he would have but a little patience he would find that it was Mr. Clay’s intention to present propositions which went to embrace both resolutions.

Mr. Clay now resumed the course of his speech. And here, Mr. President, let me pause, and invite the attention of the senate to the provision in the act of Georgia which I was reading, (the substance of which Mr. Clay here repeated,) that is, that he may have the privilege of an appeal to a tribunal of justice by forms and by a bond with the nature and force of which he is unacquainted; and that then he may have—what beside? I invoke the attention of the senate to this part of the law. What, I ask, does it secure to the Indian? His rights? the rights recognised by treaties? the rights guarantied to him by the most solemn acts which human governments can perform? No. It allows him to come into the courts of the state, and there to enjoy the benefit of the summary proceeding called in the act ‘an appeal,’ but which can never be continued beyond a second term; and when he comes there, what then? He shall be permitted to come into court and enter an appeal, which shall be in the following form.

“A. B., who was dispossessed of a lot of land by an agent of the state of Georgia, comes into court, and, admitting the right of the state of Georgia to pass the law under which agent acted, avers that he was not liable to be dispossessed of said land, by or under any one of the provisions of the act of the general assembly of Georgia, passed the twentieth of December, 1833, ‘more effectually to provide for the protection of the Cherokee Indians residing within the limits of Georgia, and to prescribe the bounds of their occupant claims, and also to authorize grants to issue for lots drawn in the land and gold lotteries in certain cases, and to provide for the appointment of an agent to carry certain parts thereof into execution, and fix the salary of such agent, and to punish those persons who may deter Indians from enrolling for emigration,’ or the act amendatory thereof, passed at the session of the legislature of 1834: ‘in which issue the person to whom possession of said land was delivered shall join; and which issue shall constitute the entire pleadings between the parties; nor shall the court allow any matter other than is contained in said issue to be placed upon the record or files of said court; and said cause shall be tried at the first term of the court, unlessgood cause shall be shown for a continuance, and the same party shall not be permitted to continue said cause more than once, except for unavoidable providential cause; nor shall said court at the instance of either party pass any order or grant any injunction to stay said cause, nor permit to be engrafted on said cause any other proceedings, whatever.’”

At the same time, we find, by another enactment, the judges of the courts of Georgia are restrained from granting injunctions, so that the only form in which the Indian can come before them, is in the form of an appeal; and in this, the very first step is an absolute renunciation of the rights he holds by treaty, and the unqualified admission of the rights of his antagonist, as conferred by the laws of Georgia; and the court is expressly prohibited from putting any thing else upon the record. Why? do we not all know the reason? If the poor Indian was allowed to put in a plea stating his rights, and the court should then decide against him, the cause would go upon an appeal to the supreme court; the decision could be reëxamined, could be annulled, and the authority of treaties vindicated. But, to prevent this, to make it impossible, he is compelled, on entering the court, to renounce his Indian rights, and the court is forbidden to put any thing on record which can bring up a decision upon them.

Mr. President, I have already stated that, in the observations I have made, I am actuated by no other feelings than such as ought to be in the breast of every honest man, the feelings of common justice. I would say nothing, I would whisper nothing, I would insinuate nothing, I would think nothing, which can, in the remotest degree, cause irritation in the mind of any one, of any senator here, of any state in this union; I have too much respect for every member of the confederacy. I feel nothing but grief for the wretched condition of these most unfortunate people, and every emotion of my bosom dissuades me from the use of epithets that might raise emotions which should draw the attention of the senate from the justice of their claims. I forbear to apply to this law any epithet of any kind. Sir, no epithet is needed. The features of the law itself; its warrant for the interposition of military power, when no trial and no judgment has been allowed; its denial of any appeal, unless the unhappy Indian shall first renounce his own rights, and admit the rights of his opponent; features such as these are enough to show what the true character of the act is, and supersede the necessity of all epithets, were I even capable of applying any.

The senate will thus perceive that the whole power of the state of Georgia, military as well as civil, has been made to bear upon these Indians, without their having any voice in forming, judging upon, or executing the laws under which he is placed, and without even the poor privilege of establishing the injury he may have suffered, by Indian evidence; nay, worse still, not even by the evidence of a white man! Because the renunciation of his rightsprecludes all evidence, white or black, civilized or savage. There then he lies, with his property, his rights, and every privilege which makes human existence desirable, at the mere mercy of the state of Georgia; a state, in whose government or laws he has no voice. Sir, it is impossible for the most active imagination to conceive a condition of human society more perfectly wretched. Shall I be told that the condition of the African slave is worse? No, sir; no, sir. It is not worse. The interest of the master makes it at once his duty and his inclination, to provide for the comfort and the health of his slave; for without these, he would be unprofitable. Both pride and interest render the master prompt in vindicating the rights of his slave, and protecting him from the oppression of others; and the laws secure to him the amplest means to do so. But who, what human being, stands in the relation of master or any other relation, which makes him interested in the preservation and protection of the poor Indian thus degraded and miserable? Thrust out from human society, without the sympathies of any, and placed without the pale of common justice, who is there to protect him, or to defend his rights?

Such, Mr. President, is the present condition of these Cherokee memorialists, whose case it is my duty to submit to the consideration of the senate. There remains but one more inquiry before I conclude. Is there any REMEDY within the scope of the powers of the federal government, as given by the constitution? If we are without power, if we have no constitutional authority, then we are also without responsibility. Our regrets may be excited, our sympathies may be moved, our humanity may be shocked, our hearts may be grieved, but if our hands are tied, we can only unite with all the good, the christian, the benevolent portion of the human family, in deploring what we cannot prevent.

But, sir, we are not thus powerless. I stated to the senate when I began, that there are two classes of the Cherokees; one of these classes desires to emigrate, and it was their petition I presented this morning; and with respect to these, our powers are ample to afford them the most liberal and effectual relief. They wish to go beyond the Mississippi, and to be guarantied in the possession of the country which may be there assigned to them. As the congress of the United States have full powers over the territories, we may give them all the guarantee which congress can express, for the undisturbed possession of their lands. With respect to their case, there can be no question as to our powers.