USA > Georgia > The bench and bar of Georgia: memoirs and sketches. With an appendix, containing a court roll from 1790-1857, etc., volume I > Part 17
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There is, too, no probability that the State of Georgia would submit to the orders of the court if it should determine that the laws of the State in relation to the Indians were void. It is therefore important that no case should be transferred from the courts of the State to the Federal courts. I have been induced to write thus freely and fully, because it is understood at Washington City that you are desirons that the Federal court should assume the jurisdiction of determining the extent of the
* Georgians, p. 357.
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AUGUSTIN S. CLAYTON.
right of the State to govern its Indian people. I have no doubt but that the opposition arc very desirous of bringing that question before the Federal court, in order to keep up the resistance of the whites and the half-brecds to the removal of the Cherokees. Our lawyers ought to know the object of the opposition, and refuse to be concerned in such a case.
At August Term, 1830, of Clark Superior Court, in his charge to the Grand Jury, Judge Clayton said :-*
Besides the fact officially announced in the council of the Indians lately assembled, I have received information from the Executive branch of this Government that counsel have been employed by the Cherokee nation to raise, for the adjudication of the Supreme Court of the United States, the question "whether the State has a right to pass laws for the government of the Indians residing within its limits." Now, without intending the least disrespect to that court, to whose Constitutional authority this and all other State courts will, I hope, cheerfully submit, this question can never go up from a court in which I preside until the people of the State yield it, either from a conviction of error, ascertained by their own tribunals, or the more awful sense of their weakness to retain it.
Again, in another part of the same charge, he says :- " So long, however, as the law remains unrepealed, the country has a very solemn pledge that it shall be faithfully and impartially adminis- tered so far as I am concerned. I only require the aid of public opinion and the arm of the Executive authority, and no court on earth besides our own shall ever be troubled with this question."
Though Georgia declined obeying the mandate of the Supreme Court citing her to appear before that tribunal, the case of the Cherokee nation was submitted and determined, after solemn argument for the plaintiffs. f The Indian Tassels, who was convicted of murder, sought the protection of the Federal courts in vain. Sentence was executed in defiance of an informal service of pro- cess, and no collision between the two sovereignties was produced thereby.] The missionaries§ also tried their fortunes in the Supreme Court, and failed to obtain their liberation ; whereupon the subject was brought before Congress, in June, 1832, on a memorial from Dutchess county, New York, by Mr. Pendleton, to authorize their discharge by habeas corpus,-which was laid on the table in the House of Representatives by a vote of 105 to 57. Judge Clayton was a member of the House at the time, but from a proper sense of delicacy did not speak on the question. The rights of Georgia were ably vindicated by her other sons on the floor, and among them the Hon. Henry G. Lamar and the late
* P. Clayton's pamphlet, p. 9.
* Georgians, p. 373.
+ 5 Peters's Rep. p. 1.
¿ 6 Peters's Rep. p. 515.
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Hon. Thomas F. Foster, both of whom replied to the assaults on Georgia.
It is only an act of justice to the liberality of the Executive to say that, when the twelve men who had been convicted in Gwinnett Superior Court, at September Term, 1831, for illegal residence in the Cherokee territory, arrived at the penitentiary, and before they were imprisoned, Gov. Gilmer* offered them all a full pardon if they would give assurance not to violate the law again. They all accepted the terms and were discharged, except Worcester and Butler, who preferred suffering as martyrs to their principles,-as they assumed by their obstinate course.
A little anecdote went the rounds of the newspapers at the time, in substance that Judge Clayton attended church in Philadelphia on the Sabbath, when a very carnest prayer was offered by the minister in behalf of the poor missionaries imprisoned in Georgia, and for the cruel judge who passed sentence of condemnation upon them ! Little did the minister and audience suspect that the " cruel judge" was present and heard the prayer, and who, no doubt, heartily joined in the supplication.
As the case of the missionaries excited much attention, a more particular notice is here given of the proceedings."The defend- ants, Elizur Butler and Samuel A. Worcester, were indicted at September Term, 1831, of Gwinnett Superior Court, for the offence of residing in that part of the Cherokee nation attached by the laws of Georgia to said county, without a license or permit, and without having taken the oath to support and defend the Constitution and laws of the State of Georgia, as required by the act of the Legislature passed December 22, 1830. They severally pleaded to the jurisdiction of the court. The following extract shows the nature of the pleas :-
And the said Samuel A. Worcester, in his own proper person, comes and says that this court ought not to take further cognizance of the action and prosecution aforesaid, because, he says, that on the 15th day of July, in the year 1831, he was and still is a resident in the Cherokee nation ; and that the said supposed crime or crimes, and each of them, were com- mitted, if committed at all, at the town of New Echota, in the said Chero- kee nation, out of the jurisdiction of this court, and not in the county of Gwinnett, or elsewhere within the jurisdiction of this court. And this defendant saith that he is a citizen of the State of Vermont, one of the United States of America, and that he entered the aforesaid Cherokee nation in the capacity of a duly-authorized missionary of the American Board of Commissioners for Foreign Missions, under the authority of the
* Georgians, p. 421.
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AUGUSTIN S. CLAYTON.
President of the United States, and has not since been required by him to leave it; that he was, at the time of his arrest, engaged in preaching the gospel to the Cherokee Indians, and in translating the Sacred Serip- tures into their language, with the permission and approval of the said Cherokee nation, and in accordance with the humane policy of the Govern- ment of the United States for the civilization and improvement of the Indians; and that his residence there for this purpose is the residence charged in the aforesaid indictment; and this defendant further saith that this prosecution the State of Georgia ought not to have or maintain, be- cause, he saith, that several treaties have from time to time been entered into between the United States and the Cherokee nation of Indians, to wit :-
At Hopewell
November 28, 1785,
Holston.
July 2, 1791,
Philadelphia.
June 26, 1794,
Tellico
October 2, 1798,
Tellico
October 25, 1804,
Tellico
October 27, 1805,
Washington City
January 7, 1805,
Washington City
March 22, 1816,
the Chickasaw Council-House
September 14, 1816,
the Cherokee Ageney
July 8, 1817,
Washington City . February 27, 1819,
All which said treaties have been duly ratified by the Senate of the United States of America ; and by which treaties the United States of America acknowledge the said Cherokee nation to be a sovereign nation, authorized to govern themselves and all persons who have settled within their terri- tory, free from any right of legislative interference by the several States composing the United States of America in reference to aets done within their own territory ; and by which treaties the whole of the territory now occupied by the Cherokee nation, on the east side of the Mississippi, has been solemnly guaranteed to them ; all of which treaties are existing trea- ties at this day, and in full force.
The plea alleges other matter to render void the action of the Georgia Legislature over the Cherokee Territory, and thus con- cludes :-
Therefore this court has no jurisdiction to cause this defendant to make further or other answer to the said bill of indictment, or further to try and punish this defendant for the said supposed offence or offences alleged in the bill of indictment, or any of them ; and therefore this defendant prays judgment whether he shall be held bound to answer further to said indictment.
Judge Clayton, who presided at the trial, overruled the plea, and, upon hearing the evidence, the defendant was convicted by the jury. The following order or sentence was then passed by the court :-
The State vs. B. F. Thompson and others. Indictment for residing in the Cherokee nation without license. Verdict, Guilty.
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BENCH AND BAR OF GEORGIA.
The State vs. Elizur Butler, Samuel A. Worcester, and others. Indict- ment for residing in the Cherokee nation without license. Verdict, Guilty.
The defendants in both of the above cases shall be kept in close cus- tody by the sheriff of this county until they can be transported to the penitentiary of this State; and the keeper thereof is hereby directed to receive them and each of them into his custody, and keep them and each of them at hard labor in said penitentiary for and during the term of four years.
A writ of error was allowed by Associate-Justice Baldwin, and a mandate issued to the State of Georgia to show cause why the judgment of the Superior Court should not be reversed by the Supreme Court of the United States, which mandate was served on Gov. Lumpkin and on Charles J. Jenkins, Esq., Attorney- General, returnable on the second Monday in January, 1832. The exemplification of the proceedings in Gwinnett Superior Court was certified on the 28th day of November, 1831, by John G. Park, Esq., the Clerk. The State authorities paid no attention to the mandate, and declined appearing in the appellate court.
The case was argued for the plaintiff in error by Messrs. Sar- geant, Wirt, and E. W. Chester. The last point taken was,-
4. That the indictment, conviction, and sentence, being founded upon a statute of Georgia which was unconstitutional and void, were themselves also void and of no effect, and ought to be reversed.
The opinion of the court, delivered by Chief-Justice Marshall, was very elaborate, reviewing all the authorities, with conclusion :-
It is the opinion of this court that the judgment of the Superior Court for the county of Gwinnett, in the State of Georgia, condemning Samuel A. Worcester to hard labor in the penitentiary of Georgia, for four years, was pronounced by that court under color of a law which is void, as being repugnant to the Constitution, treaties, and laws of the United States, and ought, therefore, to be reversed and annulled.
The same judgment was given in the case of Elizur Butler, plaintiff in error, vs. The State of Georgia, and a special mandate was ordered to the Superior Court of Gwinnett county to carry the judgment of the Supreme Court into execution.
Again the State authorities heeded not the judicial thunder from Washington City, and the missionaries were kept in prison, work- ing out their terin, until at length they notified the Governor that they had abandoned their cases in the Supreme Court, and all expectation of relief from that quarter, and threw themselves on the clemency of the Executive. Georgia having vindicated her sovereignty, and no sign of opposition to the exercise of her rights
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AUGUSTIN S. CLAYTON.
appearing from any quarter, Gov. Lumpkin but reflected the wishes of his constituents when he granted a pardon to these misguided inen and set them at full liberty.
Butler and Worcester returned to the Cherokee nation, resuming their missionary labors, and when the Indians removed they accom- panied them to the West, where, in all probability, they still reside. To show the work they were engaged in some ten years ago in the Cherokee nation west of the Mississippi, a report from Mr. Wor- cester to the United States Agent is here introduced, from Docu- ment No. 4 (p. 360) of the House of Representatives, which accompanied the President's Message to Congress in 1846 :-
PARK HILL, August 18, 1846.
SIR :- In reply to your communication of July 3, received August 12, permit me to say, first, in regard to the number of preachers in the Chero- kee nation, under the care of the American Board of Commissioners for Foreign Missions, there are at present,-
Missionaries .- Rev. Elizur Butler, M.D.,* at Fairfield, Rev. Worcester Willey, at Dwight, Rev. S. A. Worcester, at Park Hill-3.
Native Preachers .- Rev. John Huss, at Honey Creek, Rev. Stephen Foreman, at Park Hill-2. Total, 5.
Rev. D. S. Buttrick still resides at Dwight, but has asked and received a dismission from the service, being in very feeble health.
The numbers of churches under the care of the missionaries of the same board, as nearly as known, are,-
Church at Dwight 45
Fairfield. 88
Park Hill 35
Mount Zion. 30
Honey Creek 51
Total 249
The only schools at present under the care of the board, in the nation, are a female boarding-school at Dwight, and neighborhood schools at Fair- field and Park ITill. The last-named has, for some time past, been partly supported by tuition-fees from the scholars. Respecting the schools at Dwight and Fairfield, you will, I suppose, receive information from the missionaries at those stations. The school at this place the past year has had only about 33 scholars in all, attending more or less. Average about 16. Five were whites, (four of them my own children, ) the rest Cherokees.
You are aware, I suppose, of the existence of the printing-press under
. Dr. Butler died at Van Buren, Arkansas, February 4, 1857, aged sixty-two years.
VOL. I .- 10
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BENCH AND BAR OF GEORGIA.
my care at this station. Since my last report to your predecessor in office, which was dated July 18, 1845, we have printed,-
In the Cherokee Language,
PAGES IN ALL.
The Cherokee Almanac for 1846, half English. 12mo 36 pp ...... 1000 copies ... 36,000
Cherokee Primer, fifth edition .24mo 24 pp .. .. 5000 ... 120,000
Sermon and Tract. 21mo. 24 pp .. ... 5000 ... 120,000 - 276,000
In the Choctaw Language,
Regeneration, Repentance, and Judgment 12mo, 28 pp., 2000 copies ... 56,000
Salvation by Faith, and other pieces. ... 66 12 pp., 2000
... 24,000
Fraud Detected and Exposed. 66 9 pp., 2000 ... 18,000
Choctaw Arithmetic ....
66 72 pp., 2000
.144,000
Choctaw Spelling-Book
18mo, 36 pp., 1000
... 36,000
Choctaw Spelling-Book
.. 108 pp., 1000
.108,000
-386,000
In the Creek Language,
Muscogee Catechism 24mo, 31 pp., 600 copies ... 18,600
Total pages 680,600
We have prepared at this station, and had printed in Boston, a Singing- Book in the Cherokee language, consisting of 88 pages, Svo, 600 copies. Very respectfully, yours, S. A. WORCESTER.
Colonel JAMES McKISSICK, United States Agent for the Cherokees.
In November, 1831, the Troup party, to which Judge Clayton belonged, had a majority in the Legislature, and of course the power of electing judges for all the circuits, except one or two which had to be chosen at another session. Owing to some de- cision which he had made, sustaining the right of the Indians to dig gold on the lands to which their possessory title had not been extinguished, he rendered himself unpopular, and he was superseded in office by the Hon. Charles Dougherty. There is no doubt that Judge Clayton was intensely mortified at his defeat. He felt con- scious of having acted right, according to his honest convictions of duty, without regard to the caprice or interest of lottery-specu- lators or other classes, who considered it almost a crime to allow that the Indians had any rights at all in competition with the de- sires of the white man. It was not in the nature of Judge Clayton to hesitate between principle and expediency. The latter had to yield at any cost, as became a virtuous man and upright judge.
The confidence and respect of his political friends did not in the least abate, though he was not continued on the bench. There being a vacancy in Congress caused by the resignation of Gov. Lumpkin, they nominated him to fill it, and he was elected. A new
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AUGUSTIN S. CLAYTON.
career was thus opened to him, in which he acquitted himself with distinguished ability. The two leading measures which engaged most of his attention in the House of Representatives were the Tariff and Bank of the United States. His course on both will briefly appear in these pages.
While the bill proposing a reduction of duties on imports was under consideration in the House of Representatives, June 10, 1832, Judge Clayton offered an amendment to the effect,-
1. That, after the first day of January, 1835, all duties should be ad valorem, and for no other object but revenue.
2. That, for the first year, all duties above should be reduced to 35 per cent .; for the second, 25; and after that they should be regularly 15 per cent., until altered by law.
3. That, for the purpose of constitutionally and equally protecting manufacturers, Congress should freely give its consent to any State that chose to manufacture to lay such duties as it might deem necessary to encourage that business within its own limits upon any imports or exports to or from any foreign nation : Provided, such duties were paid into the Federal treasury.
He at the same time delivered a carefully-prepared speech, filling a pamphlet of more than forty pages of large size. In the first paragraph he remarked :-
Mr. CHAIRMAN :- The question before us is an important one; and if appreciated in the degree of its profound interest, and the still more absorbing character of its probable results, it involves a responsibility too big for utterance. To my mind, admonished by facts, and warned by the feelings of the country, I am almost tempted to predict that, unless an auspicious issue attends the present deliberations, they are the last that will ever engage the attention of this body within these walls. It is not now a question of dollars and cents, but of LIBERTY and EQUALITY. Every thing done on this occasion will soon be delivered over to history, and he who now stands by the cause of freedom, posterity will stand by him. A fame of enduring honor awaits the firm, and a name of lasting infamy shall follow the faithless.
Judge Clayton then proceeded to examine the powers of the Federal Government, resorting copiously to the fathers of the Constitution and other statesmen of that day. IIe denied that burdens could be imposed on one section of the country for the benefit of another section. His arguments were searching, and well supported by authority. To abridge them would be unjust, and to insert them entire would occupy too much space in this memoir. After showing the unconstitutionality and injustice of a tariff for protection, and enumerating the grievances of the South, Judge Clayton said :-
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BENCH AND BAR OF GEORGIA.
These are the oppressions of which I promised to speak, and which rise superior to all law, and would of themselves, though they violated no written principle of the Constitution, justify a people "in the pursuit of life, liberty, and happiness" to provide themselves with new forms of government. I stated in a previous part of this argument that an admis- sion on the part of our adversaries that the consumer pays the tax would be sufficient for my purpose in establishing the great inequality of the burdens, and that it rested upon the Southern people. I think I have made out the case. I will now attempt to show what is very much dis- puted,-that the producer pays the tax, or that the coincidence between the producer and consumer is so little variant as to make no sensible difference in the two characters.
I shall show it in three relations : first, in that of an individual, secondly, as a family, and, lastly, as a whole country ; and I shall select the article of cotton for the illustration. If all the cotton of the South, which is said to be one million of bales, was made by one individual, and he were to carry it to Liverpool, sell it for cash, (say $30,000,000,) lay it out in goods, and bring them to this country, he would have to pay one- half in dutics. This, however, it is said, returns to him when he sells out the goods to the various consumers. But as money, which is the only free-trade article in the world, is as much property as goods, and as liable to taxation, suppose, instead of bringing back goods, the individual should bring back the proceeds of his cotton in cash, and should find a duty upon that as well as goods : does not every one perceive that his fifteen millions of taxes would go into the public treasury without the hope of any future recovery, and consequently, as producer, he will have paid the tax on the whole of that article ? Now, that same result would run through the sales of all the planters if they sold the cotton themselves, and paid the tax on their money instead of paying it on the articles they consume.
2. I contend that the consumption of a family whose head is a pro- ducer extends to all persons that draw upon his produce for any services rendered him. That is to say, his blacksmith, tailor, carpenter, school- master, shoemaker, physician, and indeed all whose labor he has employed, are as much his family as if they lived in the same house with him, and, to the extent of their several demands against him, are, with him, not only consumers, but producers ; for his production constitutes a part of their production, and with it they purchase their articles of consumption. By reason of this connection, unless the producer bas a balance left after defraying the expenses of his family, he is the payer of all the taxes to which his crop has been applied. And who, I would ask, in any part of the South, is able, under such a burden of duties, to meet all his engage- ments? I know I am as economical and saving a planter as any of my neighbors, and I declare to this House, if it were not for other resources which it has been my good fortune to enjoy, my planting-interest would not have supported my family : and this, I can safely say, is the condition of thousands upon thousands.
3. The tariff-system proceeds upon the principle that the Northern manufacturer cannot labor as cheap as the English manufacturer. And what is thought to be the difference? Surely, this is indicated by the average per cent. of duties laid upon the articles which the last fabricates; and that, we have seen, is fifty per cent. Everybody perceives the Ameri- can manufacturer cannot compete with the European. What is to be done? The former looks away to the South, and there finds a people
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AUGUSTIN S. CLAYTON.
who make the raw material that supplies the latter, and for which they receive his manufactures. The Northern manufacturer immediately sets about a contrivance to cut off the trade between these two parties. What is it? By the artful device of legislation he imposes a duty of fifty per cent. on the foreign manufactures : this at once raises them to the price of his own. Now, what is the effect-nay, what is the real motive-of this measure ? Is it not, first, to divert the trade from the European, and. second, to divert the raw material to the American, manufacturer? Sup- pose, then, it should succeed to the extent of the wishes of the friends of the tariff, that the trade with Europe should cease altogether, and every pound of cotton should go to the North : is there any man so blind as not, to see that the producers of this article have not only lost their former market, where they were in the habit of getting what they wanted at half- price, but have been compelled to exchange it in another market at a loss, by way of bounty, of half its exchangeable value ? By this process the English manufacturing-labor is raised to the price of the American, and actually done at the expense of the Southern planter. Then, as producers of the article of cotton, they do most unequivocally throw into the lap of the Northerner the fifty per cent. which raises the labor of the English manufacturer. Thus I have shown, as an individual, as a family, and as a country, the producer pays the taxes of imports. But, I will repeat, it is enough for us, and more than we can bear, to pay it as consumers.
It is needless for me to say that this is the effect produced upon all our valuable staples in the South ; and we have now a new article of produc- tion which will be subjected to its ravenous appetite. I allude to the immensely valuable gold-mines stretching from Virginia to Alabama. Every dollar that is raised by the gold-digger-and surely no one works harder for his money-will be immediately divided with the rapacious manufacturer. Because it is gold, and almost money itself, it will not escape the fate of cotton, rice, and tobacco; for they are taken from the earth by the same hard labor, and quite as convertible into money. Little does the hard-working miner dream that, while standing in water to his knees, with a scorching sun blistering his back, every stroke which is applied to the unyielding rock presents a case in which one is for himself and the other for a Northern master.
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