War Department January 2^d 1799 [1799 )] [undecipherable] [undecipherable] [undecipherable] [undecipherable] [undecipherable] [undecipherable] [undecipherable] [undecipherable] [undecipherable] [undecipherable] [undecipherable] [undecipherable] [undecipherable] [undecipherable] Government of the public [undecipherable] [undecipherable] [undecipherable] [undecipherable] a [letter?] [undecipherable] [undecipherable] by [undecipherable] and [undecipherable] [undecipherable] to me, under date of the 20^th [March?] 1798. The first [question?] then [appears?] to be to determine whether the Secretary of War can in any way [make?] recommendation or [compensation?] to General [undecipherable] [undecipherable] for a Negro, [and?] [said?] [the?] [horses?] which were taken from [undecipherable] by the [Cherokee?] Indians. It is stated, that the Negro and [horses?] were taken by the [Cherokee?] Indians on the [undecipherable] of March 1795 — that immediate application was made to William Blount then Governor of the [South?] Western Territory; and [Superintendent?] of Indian Affairs, for the purpose of obtaining his in[undecipherable] [undecipherable] in [procuring?] return of the property [stolen?]. That Governor Blount as [Superintendent?] made application to the Indians through [undecipherable] the Agent of Indian Affairs, who made [personal?] application to the Indian who had the property in possession; that the Indian said he had purchased, and paid for the Negro, and refused to give [restitution?] [undecipherable] [undecipherable] [undecipherable] [said?] that M^r [undecipherable] [undecipherable] [undecipherable] General Smith was thereupon instructed [undecipherable] M^r [McKee?] to procure the Negro upon the best terms he could, and that the [slave?] was in consequence purchased for the sum of two hundred and thirty [odd?] Dollars by M^r [undecipherable] from the [Indians?]. It [does?] not appear that this cost [should/has?] been repaid the money [undecipherable] [undecipherable] as paid to the Indians per [his?] [account?] [undecipherable] [undecipherable] [undecipherable] [undecipherable] [undecipherable] [undecipherable] by the [authorities?] of the United States. The [Secretary?] [has?] [undecipherable] [undecipherable] [undecipherable] [undecipherable] with the [undecipherable] [undecipherable] and the [law?] of the United States could agreeably to the treaties [undecipherable] the [undecipherable] of the [undecipherable] [undecipherable] property from the [Cherokee?] Indians. [A?] [question?] [then?] [arises?] whether the [amount?] of compensation [can?] be made [undecipherable] [undecipherable] by the [undecipherable] [faith?] [undecipherable] of [them?]. The Treaty of [Hopewell?] with the [Cherokee?] has [no?] [provisions?] which [directly?] [meets?] this case [undecipherable] [undecipherable] on the 28^th of November [undecipherable] for the [Indian?] question. The article [undecipherable] provides for the [delivery?] of [prisoners?] (whether Indians or other [persons?]) [undecipherable] [among?] the Indians, to be [punished?] according to the [Ordinances?] of the United States. But there is no [express?] article for the restoration of stolen property. The article [dated?] however [must?] be carried into execution [after?] [producing?] a [specific?] restoration of property, or a payment of its value, as it contains a proviso [that?]. That the punishment shall not be greater than if the Robbery or [underline: Murder] or other [underline: capital Crime], had been committed by a citizen on a citizen [undecipherable] and the laws of [most?] if not all the States [admit?] the restoration of the property, or the value, in case of [flight?] as part of the sentence of the Court on [thieves?] and to stand committed until the sentence be [complied?] with. The Treaty of [Holston?] was entered into, and prior to the theft in question, on the 2^d day of July 1791 — [Article?] 4^th it provides for the annual payment of one thousand Dollars to the [Cherokee?] which with certain goods to be immediately delivered to the [Indians?] to [extinguish?] former claims to a specified [extent?] of Territory. By article 6^th in a similar manner with the former Treaty, for delivering up [criminals?] who shall steal a horse from, or commit a Robbery or Murder, or other capital crime, upon any [citizen?] or [inhabitant?] of the United States, to be [punished?] according to the Laws of the United States, and by article 12^th against retaliation, or reprisal, until satisfaction shall have been demanded of, and refused by the party of whom the [aggressor?] is, but it contains no provision for [deductions?] out of the annual [stipend?] of one thousand Dollars, for horses or property stolen from the citizens of the United States. General [undecipherable] [undecipherable] and [horses?] and [were?] [entered?] into on the [undecipherable] of [undecipherable] [undecipherable] and a treaty was [entered?] [after?] [signed?] with the [Cherokees?] at Philadelphia on the [4?]^th day of [November?] the same [year?]. The Treaty by article 4^th confirms the Treaty of [Holston?] in all respects whatsoever. [Article?] 5^th [stipulates?] the annual allowance of [increased?] [one?] thousand Dollars [yearly?]. Article 6^th provides that the [Cherokee?] nation does agree in order to secure their [community?] of [satisfaction?] [no?] reason to [prevent?] the stealing of horses, that for every horse which shall be stolen from the [white?] inhabitants in any [Cherokee?] [Nation?] and not returned [within?] three months, that the sum of fifty dollars shall be deducted from the said [allowance?] of one thousand Dollars. [Article?] 8^th that the [articles?] of this Treaty shall be considered as [permanent?] additions to the Treaty of [Holston?]. The Treaty at Philadelphia [may?] only be considered [in?] [force?] as to take effect [when?] [undecipherable] [undecipherable] [undecipherable] [therefore?] [undecipherable] [undecipherable] as [permanent?] additions to the Treaty of [Holston?]. If [this?] [last?] Treaty which [first?] [established?] the payment of [one?] thousand Dollars for goods to be delivered [annually?] to the [Cherokee?], and also provides for the deduction at the rate of fifty dollars for every horse stolen by them, out of this fund only — the crime to be [compensated?] for is not [subsequent?] to the [award?] of compensation in the [Court?] of the United States. The [language?] is for every horse which shall be [underline: stolen] in the future tense, and there was no expressions of retrospect. The Act to regulate trade and [intercourse?] with the Indian Tribes, and to preserve peace on the frontiers, [passed?] the 19^th of May 1796 — the 14^th Section of this Act [would?] appear on a cursory reading to apply to the present case, but on a comparison of the dates of the Treaties, their provisions and the date of the theft, will convince, that it can [not?] be so applied. The Law was [expressly?] intended and must in [execution?] be [made?] to correspond with existing treaties which are the supreme Laws of the land. The law cannot, [as?] [construed?] [now?] to give to it an [ex?] [post?] [facto?] operation. [The?] [stipend?] existing at the time of the theft, out of which the value of the properties stolen or the [price?] paid for the recovery of it could have been deducted — the provision of the Law could not have operated at the [time?] the theft was committed, for there was then no Law, and it cannot be made to operate now. The whole scheme of the law is in fact merely a direction as to the regular and proper manner of proceeding to ascertain the perpetrators of a theft, and to recover the property stolen, and can only provide for a deduction conformably to treaty, and we have seen that the [Cherokee?] [stipend?] out of which they agreed to a deduction for stolen horses, was afforded by a treaty subsequent to the theft in question, and that the words of the agreement are in the future tense. It will be perceived that I incline to the opinion, that neither the treaties nor the [Intercourse?] Law, which must conform in its execution to the treaties, will afford any relief or compensation to General [Smith?] for his stolen property, out of the [Cherokee?] [stipend?]. While however compensation cannot come from these sources, I do not hesitate to say, that upon an application to Congress for full compensation under [equitable?] circumstances, it would seem most [just?] and decent [that?] the claim of General Smith be [applied?] through the proper public [channels?] for attention, failing in this, he [humanely?] through M^r M^cKee a public [officer?] [purchased?] back his Negro, but never recovered or received a [farthing?] for his horses — the steps he took are similar to those directed by the [Intercourse?] Law; which [undecipherable: guaranteed?] an eventual [underline: indemnification?]. General Smith appears to me [in?] equity entitled to the same measure of compensation as it would have been entitled to by Treaty, had it [with?] [justice?] been stolen a few months later than it was. I [return/enclose?] the documents you transmitted to me, viz: A letter from General Daniel Smith dated [Knoxville?] December 8, 1795, a Power of Attorney from the same to [Andrew?] Jackson of the same date; a Receipt, [Colin?] M^cKee to [Joseph?] [Carey?] for the use of General Smith, for two hundred Dollars dated [undecipherable]^th August 1796; [certificate?] of [Joseph?] [undecipherable], respecting the payment of two hundred dollars to [Colin?] M^cKee and his belief that the same was paid and other articles delivered to the Indian for General Smith's Negro. I am Sir with respect, your obt. [servant?], James McHenry [To?] Honbl. Joseph Anderson