CHAPTER XXXVI.

CESSION OF A PART OF THE TERRITORY OF ARKANSAS TO THE CHEROKEE

INDIANS.

Arkansas was an organized territory, and had been so since the

year 1819. Her western boundary was established by act of Congress

in May 1824 (chiefly by the exertions of her then delegate, Henry

W. Conway),--and was an extension of her existing boundary on

that side; and for national and State reasons. It was an outside

territory--beyond the Mississippi--a frontier both to Mexico (then

brought deep into the Valley of the Mississippi by the Florida

treaty which gave away Texas), and to the numerous Indian tribes

then being removed from the South Atlantic States to the west of

the Mississippi. It was, therefore, a point of national policy to

make her strong--to make her a first class State,--both for her own

sake and that of the Union,--and equal to all the exigencies of her

advanced and frontier position. The extension was on the west--the

boundaries on the other three sides being fixed and immovable--and

added a fertile belt--a parallelogram of forty miles by three

hundred along her whole western border--and which was necessary to

compensate for the swamp lands in front on the river, and to give

to her certain valuable salt springs there existing, and naturally

appurtenant to the territory, and essential to its inhabitants. Even

with this extension the territory was still deficient in arable

land--not as strong as her frontier position required her to be,

nor susceptible (on account of swamps and sterile districts) of

the population and cultivation which her superficial contents and

large boundaries would imply her to be. Territorially, and in mere

extent, the western addition was a fourth part of the territory:

agriculturally, and in capacity for population, the addition might

be equal to half of the whole territory; and its acquisition was

celebrated as a most auspicious event for Arkansas at the time that

it occurred.

In the month of May, 1828, by a treaty negotiated at Washington by

the Secretary at War, Mr. James Barbour, on one side, and the chiefs

of the Cherokee nation on the other, this new western boundary

for the territory was abolished--the old line re-established:

and what had been an addition to the territory of Arkansas, was

ceded to the Cherokees. On the ratification of this treaty several

questions arose, all raised by myself--some of principle, some of

expediency--as, whether a law of Congress could be abolished by

an Indian treaty? and whether it was expedient so to reduce, and

thus weaken the territory (and future State) of Arkansas? I was

opposed to the treaty, and held the negative of both questions, and

argued against them with zeal and perseverance. The supremacy of

the treaty-making power I held to be confined to subjects within

its sphere, and quoted "Jefferson's Manual," to show that that was

the sense in which the clause in the constitution was understood.

The treaty-making power was supreme; but that supremacy was within

its proper orbit, and free from the invasion of the legislative,

executive, or judicial department. The proper objects of treaties

were international interests, which neither party could regulate

by municipal law, and which required a joint consent, and a

double execution, to give it effect. Tried by this test, and this

Indian treaty lost its supremacy. The subject was one of ordinary

legislation, and specially and exclusively confined to Congress.

It was to repeal a law which Congress had made in relation to

territory; and to reverse the disposition which Congress had made

of a part of its territory. To Congress it belonged to dispose of

territory; and to her it belonged to repeal her own laws. The treaty

avoided the word "repeal," while doing the thing: it used the word

"abolish"--which was the same in effect, and more arrogant and

offensive--not appropriate to legislation, and evidently used to

avoid the use of a word which would challenge objection. If the word

"repeal" had been used, every one would have felt that the ordinary

legislation of Congress was flagrantly invaded; and the avoidance

of that word, and the substitution of another of the same meaning,

could have no effect in legalizing a transaction which would be

condemned under its proper name. And so I held the treaty to be

invalid for want of a proper subject to act upon, and because it

invaded the legislative department.

The inexpediency of the treaty was in the question of crippling and

mutilating Arkansas, reducing her to the class of weak States, and

that against all the reasons which had induced Congress, four years

before, to add on twelve thousand square miles to her domain; and

to almost double the productive and inhabitable capacity of the

Territory, and future State, by the character of the country added.

I felt this wrong to Arkansas doubly, both as a neighbor to my own

State, and because, having a friendship for the delegate, as well

as for his territory, I had exerted myself to obtain the addition

which had been thus cut off. I argued, as I thought, conclusively;

but in vain. The treaty was largely ratified, and by a strong

slaveholding vote, notwithstanding it curtailed slave territory, and

made soil free which was then slave. Anxious to defeat the treaty

for the benefit of Arkansas, I strongly presented this consequence,

showing that there was, not only legal, but actually slavery upon

the amputated part--that these twelve thousand square miles were

inhabited, organized into counties, populous in some parts, and

with the due proportion of slaves found in a southern and planting

State. Nothing would do. It was a southern measure, negotiated, on

the record, by a southern secretary at war, in reality by the clerk

McKinney; and voted for by nineteen approving slaveholding senators

against four dissenting. The affirmative vote was: Messrs. Barton,

Berrien, Bouligny, Branch, Ezekiel Chambers, Cobb, King of Alabama,

McKinley, McLane of Delaware, Macon, Ridgely, Smith of Maryland,

Smith of South Carolina, John Tyler of Virginia, and Williams of

Mississippi. The negative was, Messrs. Benton, Eaton, Rowan, and

Tazewell.--Mr. Calhoun was then Vice-President, and did not vote;

but he was in favor of the treaty, and assisted its ratification

through his friends. The House of Representatives voted the

appropriations to carry it into effect; and thus acquiesced in the

repeal of an act of Congress by the President, Senate, and Cherokee

Indians; and these appropriations were voted with the general

concurrence of the southern members of the House. And thus another

slice, and a pretty large one (twelve thousand square miles), was

taken off of slave territory in the former province of Louisiana;

which about completed the excision of what had been left for slave

State occupation after the Missouri compromise of 1820, and the

cession to Texas of contemporaneous date, and previous cessions

to Indian tribes. And all this was the work of southern men, who

then saw no objection to the Congressional legislation which acted

upon slavery in territories--which further curtailed, and even

extinguished slave soil in all the vast expanse of the former

Louisiana--save and except the comparative little that was left in

the State of Missouri and in the mutilated Territory of Arkansas.

The reason of the southern members for promoting this amputation of

Arkansas in favor of the Cherokees, was simply to assist in inducing

their removal by adding the best part of Arkansas, with its salt

springs, to the ample millions of acres west of that territory

already granted to them; but it was a gratuitous sacrifice, as the

large part of the tribe had already emigrated to the seven millions

of acres, and the remainder were waiting for moneyed inducements

to follow. And besides, the desire for this removal could have

no effect upon the constitutional power of Congress to legislate

upon slavery in territories, or upon the policy which curtails the

boundaries of a future slave State.

I have said that the amputated part of Arkansas was an organized

part of the territory, divided into counties, settled and

cultivated. Now, what became of these inhabitants?--their property?

and possessions? They were bought out by the federal government!

A simultaneous act was passed, making a donation of three hundred

and twenty acres of land (within the remaining part of Arkansas),

to each head of a family who would retire from the amputated part;

and subjecting all to military removal that did not retire. It was

done. They all withdrew. Three hundred and twenty acres of land in

front to attract them, and regular troops in the rear to push them,

presented a motive power adequate to its object; and twelve thousand

square miles of slave territory was evacuated by its inhabitants,

with their flocks, and herds, and slaves; and not a word was said

about it; and the event has been forgotten. But it is necessary to

recall its recollection, as an important act, in itself, in relation

to the new State of Arkansas--as being the work of the South--and as

being necessary to be known in order to understand subsequent events.

Thirty Years' View (Vol. 1 of 2) or, A History of the Working of the American Government for Thirty Years, from 1820 to 1850 · 第 36 / 166 章