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 7
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* Memoir of R. A. Beall.
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requiring the delegates to show their authority, in rigid form, to speak in the name of the people, and, if they refused, he would not participate in their deliberations. On the fourth day a vote was taken on the amendment proposed by Mr. Berrien, which was in effect the rejection of Mr. Forsyth's resolution,-Yeas, 63; Nays, 56.
When the result was announced by the presiding officer, Mr. Forsyth arose and made a few remarks explanatory of his course ; then placed on the clerk's table a paper signed by himself and about fifty other delegates who retired with him from the hall, protesting against the action of the majority. To give the particu- lars of this scene and of the debates of the Convention would be only to repeat what may be seen under another head.
The remaining delegates proceeded with their business as though nothing had happened. But the star of the Convention, on which all eyes turned with rapture, had disappeared in Mr. Forsyth. The greater part of those who heard him on that occasion, inclu- ding delegates and the large throng of spectators, declared that they had never listened to genuine eloquence before. IIe soared above all competition. Fresh from the Senate of the United States, he wore his laurels, gathered in that arena by contests with Calhoun, Clay, and Webster, with the air of a victor. He was, indeed, perfection as an orator. In skirmishing, he was admitted to have no rival in the Union, if in the world. Afterwards, his ability was tested and his fame greatly increased by his leadership in the defence of President Jackson when he was assailed in the Senate for the removal of the public deposits from the United States Bank in 1833. Yet the void in the Convention soon closed up, and the measures for which it assembled were discussed freely, the speakers often differing in their views, though in the main harmonious.
At the request of the chairman, the Report of the Committee of Twenty-one was prepared by Mr. Berrien, who read it to the Con- vention. The author was in the gallery at the time, and well remembers the delight it afforded to all present, as much by the manner of the reading as the merits of the paper itself.
For the purposes of history, and as containing the constitu- tional argument, several of the resolutions are here inserted from the report :-
7. That the act laying duties on imports, passed in July, 1832, as well as the several acts of which that act is emendatory, in so far as it tran- scends the purposes of revenue, and is intended to operate, and does
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operate, substantively for the protection of manufactures, is an exercise of powers not granted by the Constitution, but a plain and palpable viola- tion of the true intent, meaning, and spirit thereof; that the said aets cannot be justified under the power of regulating commerce with foreign nations, since to REGULATE is not to DESTROY; and the principle of a substantive protection to domestic manufactures assumes, and in some instances exerts, the power of imposing a duty which effectually prohibits the importation of foreign fabrics of like kind with those which are thus protected, and to this extent destroys foreign commerce instead of regu- lating it. That they cannot be supported under the power to levy and collect duties, since this power was given solely for the purpose of eu- abling the Government to raise a revenue which should be adequate to its wants; and the amount of revenue which is raised by these protective . duties very far exceeds the legitimate wants of the Government; and that the attempt to vindicate the exercise of a power to impose a burden on the labor and industry of one portion of the people of the United States for the benefit of another portion of the same people, under the power to pro- vide for the common defence and general welfare of the United States, is even more alarming than the direct results of the system itself, because that is to ascribe to Congress the power to do whatever in their judgment may conduce to the common defence and general welfare, and thus to invest the National Legislature with unlimited (because merely discretion- ary) power over the rights and liberties of the people of Georgia.
S. That the people of Georgia are sincerely attached to the Federal Constitution, and to the Union of the States which it creates and guaran- tees ; that they consider it as a precious inheritance received from their fathers which it is the duty of patriotism to maintain and defend, and esti- mate it above all price, save that of liberty ; that they are ready to peril their fortunes and their lives in its defence, and would deeply deplore its dissolution, as an event alike inauspicious to themselves and to the cause of civil liberty throughout the world. That, actuated by these feelings, and even amid the difficulties which beset them, not despairing of the Repub- lie, they will still persevere in the use of every proper and efficient means for the peaceful adjustment of this unhappy controversy which may be within their power as one of the sovereign members of this Confederacy, or which may result from consultation and conference with their sister States having a common interest with them in this matter. That, taking the payment of the national debt as the period after which the present tariff of duties, so far as it transeends the purposes of revenue and is designed for the protection of domestic manufactures, can find no plausible pretext in our constitutional charter, they are willing to wait until Congress shall have full time deliberately to determine whether they will reduce and equalize the duties on foreign imports, so as to bring the income of the Government within the limits of revenue, and to collect the contributions of our citizens on the principles of just taxation. That, having regard to the interests of those whose capital has been invested in manufactures during the progress of that course of legislation of which they complain, they are willing that the reduction and equalization of duties which they ask should be prospective and gradual, and, fearfully admonished as they have been by experience of the fallacy of their past hopes for relief from the evils under which they suffer, they will still look to the justice and patriotism of their brethren of the manufacturing States.
9. That the people of Georgia cannot submit to the permanent protec-
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tion of domestic manufactures by duties imposed for that purpose on the importation of foreign manufactures, and especially on such as are among the necessaries of life; that they cannot submit to the adoption of the principle on which such duties are imposed, as a permanent principle of Federal policy, but will feel bound to resist the same by the exercise of all their rights as one of the sovereign members of this Confederacy, and by consultation and concert with their sister States having like interest with themselves, and disposed to unite with them in resistance to this principle.
10. That it be respectfully recommended to the several Southern States having a common interest with us in the removal of the grievances under which we labor from the protective system, to assemble in Conven- tion by delegates from the respective States, corresponding to the number of their Senators and Representatives in Congress, to confer together on the subject of their grievances, and to recommend to the people of their respective States such measures as may best conduce to the removal of the same ; and that the time and place of such meeting be determined by correspondence between the delegates elected to said Convention.
This report was adopted by a vote of 64 yeas, 6 nays. The latter were Messrs. Clifton, Flournoy, Guerry, Holt, Lewis, of Burke, and Peabody.
On motion of Mr. Berrien, it was
Resolved, That a committee be appointed, to consist of five persons, whose duty it shall be to prepare an address to the people of Georgia, illustrating the objects and proceedings of this Convention, which shall be attached to the journal of the said proceedings. Whereupon the presi- dent appointed Messrs. Berrien, Clayton, Gordon, of Putnam, Bcall, of Bibb, and Torrance, that committee.
The address came forth under the signatures of the Committee, dated November 21, 1832, from which an extract is given, pointing out the inequality of the protective system :-
By the provisions of the Tariff Act of 1832, a principle of taxation is affirmed which imposes burdens on articles of necessary consumption, while those of luxury, and those materials used in manufacturing, such as dye-stuffs, &c., are, with a few unimportant exceptions, declared to be free of duty. The effect of this unwarrantable discrimination is to exempt UNPROTECTED articles entirely from taxation, and to throw all the burden upon the PROTECTED articles, such as iron, salt, sugar, woollen and cotton fabrics, &c. These are articles of necessary consumption at the South, the duties upon which in many instances amount to an entire prohibition.
The spirit which characterized the majority in Congress in the adoption of this odious act cannot, perhaps, be better illustrated than in the rejection by the majority in the Senate of all propositions tending to the reduction of the duties to the wants of the Government, or limiting those imposed to a certain definite amount. A distinguished Senator from the South, during the discussion of the act of 1832 in the Senate, submitted to that body four distinct propositions. The first was an amendment to Mr. Clay's resolution, by which amendment it was proposed "to bring down the duties gradually to the revenue standard, adjusting them on the protected
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and unprotected articles, on principles of perfect equality." This propo- sition, fair and honorable in its terms, in every respect reasonable in its operation, was treated by the majority "as a scheme to destroy the manu- facturers, and as pledging Congress to an ultimate abandonment of the protecting system, which it was declared had become the settled policy of the country." Immediate reduction was termed "sudden destruction to the manufacturers ;" gradual reduction was called "slow poison." The proposition was rejected.
To the clause in the bill imposing a duty of 16 cents a yard upon flannels, the same distinguished Senator proposed to add a proviso " that the duty should in no case exceed FIFTY PER CENT." The duty of 16 cents a yard on coarse flannels used by the poor would be equal to 160 per cent., while on the finest of that article it would amount to only 32 per cent. Yet this proviso was rejected. The reason alleged for this rejection was that 50 per cent. would not be an adequate protection to the domestic manufacturer of flannels. Another proposition was made :- " to strike out the minimums on cottons." This also was rejected; and this " fraudulent device" was retained in the acts by which an article costing 5 cents is to be deemed to have cost 30 cents, and to pay a duty as having actually cost 30 cents. This was done, too, in the face of a distinct admis- sion of the friends of the manufacturers of coarse cottons that they did not at present require protection. But the majority, in the plenitude of their power, thought it would be wise to "keep the fences up by which foreign competition would be excluded." The fourth and last proposition made by the Southern Senator was that a clause should be added to the end of the act, declaring "THAT THIE DUTIES IMPOSED BY IT SHOULD IN NO CASE EXCEED ONE HUNDRED PER CENT .; " yet this proposition shared the same fate of all the previous ones : IT WAS REJECTED. Yes, a majority in the Senate, secure of their power, calculating on the deceptive features of the act, and relying upon a want of unanimity among the Southern people, for the final triumph of the protective system, rejected a proviso which would have limited the maximum of duties to 100 per cent. People of Georgia ! the rejection of these propositions speaks a language not to be mistaken, the direct tendency of which is to enslave you,-to render you tributary to the North. This conduct of the majority evinces but too clearly a determination to maintain the protective principle invio- late, regardless of the cost and reckless of the consequences.
It will be seen from the spirit of the Convention that the very scale of reduction established by the compromise in a few months afterwards was suggested by the Committee, if not in express terms, at least in principle. The South Carolina Ordi- nance of Nullification was passed on the 24th day of November, 1832, among the signers of which was Chancellor Harper, who, with his Union colleague, Hon. David Johnson, but a few days before occupied a seat by special invitation in the Convention at Milledgeville. These scraps of the day are collected here as part of an exciting movement in which were enlisted the great minds of the age.
The Legislature of Georgia, in 1840, elected Judge Berrien a
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Senator in Congress for a term of six years from 4th March, 1841, at which time he took his seat, to advise on the nominations by President Harrison of his Cabinet and other officers of the Govern- ment. He took an active part in the leading measures of the extra session of Congress of that year, supporting the policy of the Whigs with that high order of abilities which had been so long accorded to him by the public voice. It is not intended here to follow up his votes, or even to refer to all the discussions in which he participated. He was uniformly heard with pleasure, and his opinions commanded the respect of all parties. After the passage of the bankrupt law, there was a very strong feeling of dissatisfaction evinced by the public, and a bill was introduced for its repeal. On the 26th of January, 1842, Mr. Berrien made a speech of great power, maintaining the constitutionality and expediency of the law. Hc analyzed the relations of debtor and creditor, and the bankrupt systems of other countries, showing them to be necessary to the interests of commerce, as well as just to individuals. In com- paring the bankrupt feature with State insolvent regulations, he thus expressed himself :-
Look now at the condition of the bankrupt and insolvent, when the respective processes against them are closed, and say which is likely to prove the better and more upright citizen. The bankrupt has surrendered his all : he is poor,-nay, destitute, penniless ; but he is free. Ay, there is the charm. He is really, truly free. It is not merely the poor privi- lege of locomotion which is accorded to him. His hands are unshackled. The energies of his mind are unfettered. He is free to exert them for the benefit of those whom nature and affection have endeared to him. His recovered freedom is his stimulus. The lesson of experience, which adversity has taught him, is his safeguard. The almost utter impractica- bility of receiving a second time the boon which has been once accorded to him is his voice of warning. Thus stimulated, thus guarded, thus warned, he enters upon his new career. If in this world of trial, which we have divested of its original beauty and loveliness, any man may be delivered from temptation, or enabled to resist it, by merely human means, this man is secure. The path of duty, of uprightness, of honesty, which it is the best interest of all to pursue, is that from which he is without any conceivable motive to wander.
And the insolvent, Mr. President,-what is his condition ? He too has surrendered his all,-at least, all which he dare openly claim : and for what ? To purchase exemption from imprisonment, or the privilege of departing beyond prisen-bounds. Ile breathes the free air of heaven, but not as a free man. He is still the "doomed slave" of his creditor. The fruits of his labor belong to that creditor, and can only be withheld from him by fraud. The necessities of a helpless family appeal to him. The cagle eye of his creditor is upon him. He looks upon that creditor as his enemy. If he be merciless, he is indeed his enemy,-the enemy of those who are dearer to him than life, whom he is bound to protect even at the sacrifice of life itself. What then? As an enemy, he fences himself
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against that creditor. He resorts to fraudulent conveyances, to secret trusts, to a regular system of habitual deception, and his children, into whose young minds it would have been, under more propitious circum- stances, his grateful task to have instilled the lessons of virtue, are trained up under the blighting influence of that system of concealment to which they are indebted for the comforts and conveniences of life. Such is the actual condition of multitudes, under the operation of the State insolvent law.
As chairman of the Judiciary Committee, to whom were referred the Senate and House bills to repeal the bankrupt law, and nume- rous petitions, and sundry legislative resolutions, and other papers, relating to the subject Mr. Berrien made a report to the Senate, February 3, 1843, embodying the opinions and statements of Associate Justices of the Supreme Court, Judges of the District Courts of the United States, and other officers of those courts, touching the practical operation of the bankrupt law, its benefits and evils. The report* consists of about thirty pages, from which the following is an extract :-
The bankrupt law has now presented its worst aspect. It has passed the fiery ordeal of public opinion, exhibiting all its faults in the emptiness of the inventions which have been returned to the scrutinizing gaze of the public. Hitherto its operation has been chiefly at the expense of the creditor, if indeed the securities which he held were not already valueless at the date of the act. Let us not forget that this is owing to our own long-continued neglect to fulfil our constitutional duty by the establish- ment of a uniform system of bankruptcy. If suffered to remain on the statute-book, a new era will commence. The mass of insolvencies which had been accumulating for years, affording, under the operation of the bankrupt law, little or no return of assets for distribution, has now been disposed of, cither by the direct operations of the law or by compromises which it has induced. Hereafter it will afford to the creditor the means of preventing the recurrence of this state of things, will enable him to stay the downward progress of his failing debtor before the desperate plunges to which a man in such circumstances is too strongly tempted shall have involved him in hopeless ruin, and will insure to the creditor a fund for distribution far greater than can be obtained under the opera- tion of State insolvent laws. The fact will be manifested by considering the different results which are produced by the bankrupt law in England, and by the insolvent systems of the different States which have prevailed among us.
With these facts in view, the committee believe it to be their duty to recommend to the Senate the adoption of a bankrupt law, adapted to the commercial exigencies of the community, and calculated to form a part of the permanent jurisprudence of the country.
The salutary influence of such a law will be manifested,-
Ist. By the prevention of undue credit, since, under its operation, the debtor may be forced into bankruptcy, by which he must surrender
* Sce Senate Doc. No. 121, 27th Congress, 3d Session. VOL. I .- 5
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all that he possesses, and even then be dependent on the assent of a majority of his creditors for the allowance of his discharge, with the pre- monition that such discharge will ever after preclude him from receiving similar relief, unless, in the event of his insolvency, his estate is able to pay seventy-five per cent.
2d. By preventing partial assignments, by which a few preferred creditors, often selected from among those who mainly contributed to enable the failing debtor to hold out a false credit to the community, are allowed to appropriate his estate exclusively to themselves.
3d. By substituting one uniform rule-the great and equitable rule that equality is equity-to the conflict bankrupt and insolvent laws of the several States, and thus insuring a fair and equal dividend of the estate of a failing debtor among all his creditors.
4th. By arming the creditor with a power to force a failing debtor to go into liquidation before his assets are wasted by the desperate specula- tions to which men in such circumstances are generally tempted.
The report shows the number and classification of petitioners to Congress relative to the bankrupt law. At the session in 1842 the number is thus stated :-
Asking for a repeal of the bankrupt act 2,133
Against repeal 42,169
Asking for a modification. 1,206
For a modification or repeal. 4,343
For a postponement. 447
Resolutions passed the Legislatures of the States of Connecti- cut, Maine, and Mississippi, for a repeal.
During the session in 1843 the account stood thus :- For immediate repeal. 3,107
Opposed to the repeal. 6,495
The States of Vermont and Ohio passed resolutions in favor of the repeal.
It is only an act of justice to both the distinguished orators to remark here that, immediately after Mr. Berrien had finished his speech in support of the bankrupt law, Mr. Clay advanced to him in the Senate and shook him cordially by the hand, thanking him for his eloquent and touching appeal in behalf of a large class of unfortunate yet worthy fellow-citizens, who had fallen by the casualties of trade. It was a noble tribute from a noble source, and should endear the memories of Clay and Berrien to all who revere public benefactors.
For his course on the bankrupt bill, and for his support of the nomination of Mr. Everett as Minister to England, of a national bank, the Land Distribution bill, and other Whig measures of the extra session of Congress in 1841, Mr. Berrien incurred the dis- approbation of the Legislature of Georgia, which body, at the
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session of 1841, passed resolutions of censure. The majority happened to be Democrats, who took that occasion to embarrass him and to promulgate their policy. He was at the same time instructed to reverse his votes on all those questions. The year following, the same majority again resolved that Mr. Berrien was not representing the sentiments of the people of Georgia, and accordingly withdrew their confidence, refusing to have any com- munication with him. He was not officially notified of this latter action until after the adjournment of the Legislature, and was therefore deprived of the opportunity of vindicating his conduct. He published an address to the people of Georgia, in which he reviewed the measures of Congress, the state of parties, and the doctrine of legislative instructions, the latter of which, as applied to him, he pronounced a usurpation.
At the State election in 1843 (the first of biennial sessions) the Whigs obtained an ascendency in the Legislature, and de- clared by resolutions, in the warmest terms, that Mr. Berrien was a faithful Senator, alike distinguished for ability and patriotism, and that the people of Georgia felt a just pride in his character and public services. This is the substance, and it was alike gratify- ing and proper to Mr. Berrien, who continued to discharge his public duties in the Senate.
The address of Mr. Berrien to the people of Georgia called forth a letter from Judge Story, in which he said, "Your argu- ment upon what is called 'the right of instruction' is exceedingly cogent, and, I think, unanswerable. If ever my work on the Con- stitution shall reach another edition, I intend to extract the pas- sage and use it in that work. I have laid aside the newspaper for this purpose among my choice collections."
In 1844 Mr. Berrien was a delegate from Georgia in the Con- vention at Baltimore which nominated Mr. Clay for the Presi- dency. He was appointed chairman of the committee to commu- nicate the action of that body to Mr. Clay, which he did as follows :-
BALTIMORE, May 1, 1844.
SIR :- The grateful office of announcing to you the result of the de- liberations of the National Whig Convention, this day assembled at this place for the selection of a candidate for the office of President of the United States at the approaching election, has been by that Convention assigned to us.
We perform it by communicating to you the accompanying copy of a resolution adopted unanimously and by acclamation by that body, and beg to add to it the expression of our earnest hope that the wish of your as- sembled fellow-citizens, in which " all with one voice" have united, and
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in which their personal feelings, and, as they believe, the best interests of this great people, are involved, may meet your prompt and cheerful acquiescence.
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