USA > Georgia > The bench and bar of Georgia: memoirs and sketches. With an appendix, containing a court roll from 1790-1857, etc., volume II > Part 2
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CONTENTS.
the Whig Convention at Milledgeville-Removes to New Orleans in 1843 -Appointed Professor of Constitutional Law in the University of Louisi- ana-High Rank at the Bar-Scale of Fees-Elegant Personal Address- Classical and Refined Taste-European Fame-Prospects for the Future -Attack of Yellow Fever-Death in 1847-Manifestations of Public Sor- row-Tribute by N. Oakey Hall, Esq .- Communication of John P. Wilde, &c.
PAGE
343
APPENDIX.
I .- COURT-ROLL .- Names of Judges and Solicitors to be found under the head of each Judicial District :-
PAGE
Blue Ridge.
377
Middle. 370
Brunswick 377
Northern
374
Chattahoochee 375
Ocmulgee. 372
Cherokee
375
Pataula. 377
Coweta.
376
Southern
373
Eastern
369
Southwestern
376
Flint
374
Tallapoosa
377
Macon
377
Western
371
II .- FRAGMENTS-By the Author :-
1. Annexation of Texas to the United States. 381
2. Defeat of Henry Clay for the Presidency, 1844 387
3. Signs of Revolution in Europe, 1847. 389
4. Generosity and Justice in Political Warfare. 391
5. Applying for an Office 393
6. The Southern Question, 1850
398
7. Labor Essential to Happiness.
405
8. Neutrality in the Presidential Election
413
9. Letter to John Livingston, Esq., on "Eminent Americans"
415
10. Letters to a Young Friend. 420
11. Review of Gov. Gilmer's Book (" Georgians"). 438
12. Letter to B. H. Overby, Esq., on the Governor's Election, 1855 440
13. Library of Pamphlets 441
THE
BENCH AND BAR OF GEORGIA.
XV.
JOHN FORSYTH.
AMONG the sons of fame who seem to be endowed above the ordinary lot of men-who dazzle by their gifts and leave proud memories behind-the name of JOHN FORSYTH is entitled to the highest rank.
He was born in Frederick county, Virginia, about the year 1781. His father* removed to Georgia four years afterward. When old enough to study the classics, John Forsyth was placed in the academy under charge of the Rev. Mr. Springer, in Wilkes county. Thence he went to Princeton College, where he graduated in 1799. After a course of legal study with Mr. Noel, of Augusta, he was admitted to the bar in 1802. His success was rapid. In 1808 he was elected attorney-general, and at the end of the term, in 1811, became a candidate for Congress to fill a vacancy. He failed against his competitor, William Barnett, who was also a candidate for the first time; but, in 1812, Mr. Forsyth was elected for the regular term, and gave efficient support to Mr. Madison's adminis- tration. He remained in the House of Representatives until his election to the Senate of the United States in 1818. His career was onward and upward. Honors poured upon him.
As Mr. Forsyth's name has a diplomatic connection with the Florida treaty, a few remarks will explain. On the 22d February, 1819, the Spanish Minister at Washington and Mr. Adams, the Secretary of State, concluded a treaty of limits and indemnity,- Spain ceding Florida to the United States, and the latter ceding
* United States Marshal for the District of Georgia. Was killed by the Rev. Beverly Allen while attempting to execute process. See the account given by Gov. Gilmer in his book, "Georgians," p. 135.
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BENCH AND BAR OF GEORGIA.
to Spain all claims to territory west of the Sabine. The subject had been under discussion between the two Governments for a long time. Several topics were pressed into it, among which were the losses sustained by citizens of the United States from Spanish cruisers more than twenty years before, which had been acknow- ledged by the Spanish Government in 1802. By the Treaty of 1819, the United States agreed to pay five millions of dollars as an equivalent to Spain for the value of territory exchanged, to be applied in satisfaction of these losses. Thus far all appeared to be easily understood. The following is the 8th article :*-
All the grants of land made before the 24th of January, 1818, by his Catho- lic majesty, or by his lawful authorities, in the said territories ceded by his majesty to the United States, shall be ratified and confirmed to the persons in possession of the land, to the same extent that the same grants would be valid if the territories had remained under the dominion of his Catholic majesty. But the owners in possession of such lands, who by reason of the recent circumstances of the Spanish nation and the revolutions in Europe have been prevented from fulfilling all the conditions of their grants, shall complete them within the terms limited in the same, respect- ively, from the date of the treaty; in default of which the said grants shall be null and void. All grants made since the 24th of January, 1818, when the first proposal on the part of his Catholic majesty for the cession of the Floridas was made, are hereby declared to be null and void.
President Monroe laid the treaty before the Senate on the 27th of February, 1819, and it was ratified with a declaration annexed respecting the grants of lands under the 8th article. There is no question that millions of acres of the best lands in Florida had been granted so as to deprive the United States of eminent domain, which it was sought to cover by this clause of the treaty. The Spanish Government withheld its ratification of the treaty for such a length of time that the President thus referred to it in his message of December 7, 1819 :-
Anxious to prevent any future disagreement with Spain, by giving the most prompt effect to the treaty which had been thus concluded, and par- ticularly by the establishment of a government in Florida which should
* A large amount of litigation arose on claims springing out of the 8th article of the treaty, as may be seen by the records of the Supreme Court of the United States. See United States vs. Arredondo, 6 Peters's Rep. 691; U. S. vs. Perche- man, 7 ib. 51; U. S. vs. Clarke, 8 ib. 436; U. S. vs. Clarke, 9 ib. 168; U. S. vs. Sibbald, 10 ib. 313; U. S. vs. Kingsley, 12 ib. 476; U. S. vs. Wiggins, 14 ib. 334; U. S. vs. Delespine, 15 ib. 226; U. S. vs. Miranda, 16 ib. 153; U. S. vs. Acosta, 17 ib. 16; U. S. vs. Acosta, 1 Howard, 24; Chaires es. United States, 3 ib. 611; U. S. vs. Lawton, 5 ib. 10.
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JOHN FORSYTH.
preserve order there, the Minister [John Forsyth] of the United States who had been recently appointed to his Catholic majesty, and to whom the ratification by his Government had been committed, to be exchanged for that of Spain, was instructed to transmit the latter to the Department of State as soon as obtained, by a public ship, subjected to his order for the purpose. Unexpected delay occurring in the ratification by Spain, he requested to be informed of the cause. It was stated in reply that the great importance of the subject, and a desire to obtain explanations on certain points which were not specified, had produced the delay, and that an envoy would be despatched to the United States to obtain such expla- nations of this Government. The Minister of the United States offered to give a full explanation on any point on which it might be desired,- which proposal was declined. Having communicated this result to the Department of State in August last, he was instructed, notwithstanding the surprise and disappointment which it produced, to inform the Govern- ment of Spain that if the treaty should be ratified and transmitted here at any time before the meeting of Congress, it would be received and have the same effect as if it had been ratified in due time. This order was executed, the authorized communication was made to the Government of Spain, and by its answer, which has just been received, we are officially made acquainted for the first time with the causes which have prevented the ratification of the treaty by his Catholic majesty. It is alleged by the Minister of Spain that this Government had attempted to alter one of the principal articles of the treaty by a declaration which the Minister of the United States had been' ordered to present when he should deliver the ratification by his Government in exchange for that of Spain, and of which he gave notice, explanatory of the sense in which that article was under- stood. It is further alleged that this Government had recently tolerated or protected an expedition from the United States against the province of Texas. These two imputed acts are stated as the reasons which have induced his Catholic majesty to withhold his ratification from the treaty, to obtain explanations respecting which it is repeated that an envoy would be forthwith despatched to the United States. How far these allegations will justify the conduct of the Government of Spain will appear on a view of the following facts, and the evidence which supports them.
It will be seen by the documents transmitted herewith that the declara- tion mentioned relates to a clause in the eighth article, concerning certain grants of land recently made by his Catholic majesty in Florida, which, it was understood, had conveyed all the lands which till then had been ungranted. It was the intention of these parties to annul these latter grants, and that clause was drawn for that express purpose and for no other. The date of these grants was unknown, but it was understood to be posterior to that inserted in the article. Indeed, it must be obvious to all that, if that provision in the treaty had not the effect of annulling these grants, it would be altogether nugatory. Immediately after the treaty was concluded and ratified by this Government, an intimation was received that these grants were of anterior date to that fixed on by the treaty, and that they would not, of course, be affected by it. The mere possibility of such a case, so inconsistent with the intention of the parties and the meaning of the article, induced this Government to demand an explana- tion on the subject, which was immediately granted, and which corresponds with this statement. With respect to the other act alleged, that this
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BENCH AND BAR OF GEORGIA.
Government tolerated or protected an expedition against Texas, it is utterly without foundation. * * *
In the course which the Spanish Government have on this occasion thought proper to pursue, it is satisfactory to know that they have not been countenanced by any European power : on the contrary, the opinion and wishes both of France and Great Britain have not been withheld either from the United States or from Spain, and have been unequivocal in favor of the ratification. There is also reason to believe that the senti- ments of the Imperial Government of Russia have been the same, and that they also have been made known to the Cabinet of Madrid.
In his message to Congress, November 14, 1820, referring to the delay in the ratification of the treaty by Spain, the President said :-
By letters from the Minister of the United States to the Secretary of State, it appears that a communication in conformity with his instructions had been made to the Government of Spain, and that the Cortes had the subject under consideration. The result of the deliberations of that body, which is daily expected, will be made known to Congress as soon as it is received. The friendly sentiment which was expressed on the part of the United States, in the message of the 9th May last, is still entertained for Spain. Among the causes of regret, however, which are inseparable from the delay attending this transaction, it is proper to state that satisfactory information has been received that measures have been recently adopted by designing persons to convert certain ports of the province of East Florida into depôts for the reception of foreign goods, from whence to smuggle them into the United States. By opening a port within the limits of Florida, immediately on our boundary where there was no settle- ment, the object could not be misunderstood. An early accommodation of differences will, it is hoped, prevent all such fraudulent and pernicious practices, and place the relations of the two countries on a very amicable and permanent basis.
The President again adverts to the subject in his message of December 3, 1821, from which the following paragraph is ex- tracted :-
With Spain, the treaty of February 22, 1819, has been partly carried into execution. Possession of East and West Florida has been given to the United States; but the officers charged with that service by an order from his Catholic majesty delivered to the Secretary of State and trans- mitted by a special agent to the Captain-General of Cuba, and in whom the government of these provinces was vested, have not only omitted, in contravention of the order of their sovereign, the performance of the ex- press stipulation to deliver over the archives and documents relating to the property and sovereignty of these provinces,-all of which it was expected would have been delivered either before or when the troops were withdrawn,-but defeated every effort of the United States to obtain them, especially those of the greatest importance. This omission has
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JOHN FORSYTH.
given rise to several incidents of a painful nature,* the character of which will be fully disclosed by the documents which will be hereafter commu- nicated.
These transactions indicate the necessity of great address on the part of Mr. Forsyth to manage the court of Spain. His official correspondence, embracing a period of four years of negotiation more or less intricate, forms a luminous chapter in the archives of the State Department, and in the large quarto volumes of diplo- matic history published by order of Congress. He was truly a courtier of finished mould. His person, temper, qualifications, all fitted him for the place, and faithfully did he act his part. All questions of controversy being adjusted with Spain, Mr. Forsyth returned home to enjoy the gratifying compliment paid him by the people of Georgia in electing him to Congress during his absence abroad. He again took his seat in the House of Representatives at the session of 1823, where he remained until he resigned in 1827.
The treaty concluded at the Indian Springs, on the 12th day of February, 1825, by which the Creek Nation ceded their rights of occupancy west of Flint River, gave rise to the celebrated con- test between the President of the United States and the Execu- tive of Georgia, in regard to the immediate survey and distribution of the lands acquired under the treaty. To carry into effect his measures, Gov. Troup convened the Legislature in May, 1825. In his message he pays the following tribute to Mr. Forsyth and his colleagues :-
The delegation in Congress, always faithful to their trust, have seconded by active and incessant labor the measures taken by this Government to support not only this important right, but all other rights and interests of the State; and, in the delicate and critical relations which these involved, have so deported themselves as to command the confidence of ourselves and the respect of all who know them.
Among the documents accompanying the Governor's message of May 23, 1825, were the following :-
GEORGETOWN, March 24, 1825.
SIR :- I have the honor to enclose to you the copy of a letter written to the Secretary of War since the adjournment of Congress on the subject
* Allusion is here doubtless made to the energetic measures adopted by General Jackson, the first Governor of Florida after its cession to the United States. He demanded of the Spanish Governor all the public archives and records which related to land-titles in the province. On his refusal to give them up, General Jackson had him committed to prison, where he remained until the documents were forth- coming.
VOL. II .- 2
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BENCHI AND BAR OF GEORGIA.
of the execution of the recent treaty with the Creek Indians, and the for- mation of a treaty with the Cherokees for the complete fulfilment of the obligations of the United States to the State of Georgia under the compact of 1802, and his answer, and several papers marked A, B, and C, received with it. As I hope to have soon a personal conference with you on this subject, I forbear to make any remarks upon the correspondence enclosed.
I am, with perfect respect, your obedient servant, JOHN FORSYTH.
His Excellency G. M. TROUP.
MR. FORSYTH TO THE SECRETARY OF WAR.
GEORGETOWN, March 9, 1825.
SIR :- By the request of Governor Troup, I had the honor this morning to ask the attention of the President to the claims of the State of Georgia upon the United States under the compact of 1802. The President desired that I should address myself to you, that the suggestions made on the part of the State might be fully considered. Complying with this desire, I invite your attention, first, to the execution of the treaty lately concluded at the Indian Springs, and, secondly, to the formation of a new treaty with the Cherokees.
By the 8th article of the treaty of the Indian Springs, the Creeks must remove from the land occupied by them prior to the first of September, 1826. To cover the first payments due under this treaty, and to provide a fund for the purchase of a permanent residence for the Creeks beyond the Mississippi, a contingent appropriation of $250,000 has been made by Congress. The interest and convenience of Georgia will be best consulted by an immediate removal of the Indians, and no doubt is entertained that the necessary measures will be immediately taken for that purpose. The conduct of the Creek Agent, who has spared no pains to prevent the formation and · ratification of the treaty, justifies an apprehension that he will not fail to obstruct as far as in his power the accomplishment of the wishes of the State. Under this conviction, a request that the conduct of the Agent may be watched, and that no confidence shall be reposed in him that can be consistently withheld, is dictated by the interests of Georgia, the wishes of the Creek tribe, and the honor of the General Government. While anxious that no artifices shall be used to prevent an early removal of the Indians, I pray you to be assured that we have no desire that the Creeks should suffer for our accommodation. We shall complain of no delays that are necessary for their comfort on their journey, and to their perma- nent security and prosperity in their new homes.
As to the formation of a treaty with the Cherokees, the present moment appears to be peculiarly favorable for a complete performance of the obli- gations of the compact of 1802. Nothing remains to the accomplishment of these objects but to induce the Cherokees to remove from the lands occupied by them within the limits of Georgia. A number of the Chero- kee chiefs, the most influential in the nation, are in Washington. The recent determination of the Creeks to go to the West, in spite of the per- suasions and artifices of the Cherokees, must have satisfied the latter that the United States will sooner or later insist upon the surrender of the lands in Georgia to that State. Once convinced that their title to the land must be extinguished, it will be easy to satisfy them that their own interest will be most effectually consulted by an immediate arrangement.
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JOHN FORSYTH.
The records of the War Department show that many of the Cherokees, since 1819, have continued to express a desire to go beyond the Missis- sippi, and have complained of the injustice of their chiefs who deprived them, by the treaty of that year, of the privilege of selling their lands for that purpose. In 1821, the Path-killer applied through Gen. Jackson to Government to purchase his claims. My own opinion is that the Presi- dent may, without injustice to the Indians, without violating either prin- ciple or usage, cause a purchase to be made of the Cherokees residing in Georgia of the lands lying in Georgia. Without attempting to demon- strate the soundness of this opinion, I suggest, with great deference, that if the Cherokees are found now unwilling to treat, their unwillingness would be promptly overcome if they were informed that the President would, if the whole tribe could not be induced to treat, take into serious consideration the proposals made by the Path-killer, and any other propo- sals which may be hereafter made by all or any portion of the Cherokees in Georgia, for the sale of the lands they may occupy lying within the limits of that State.
With the hope that a new effort with the Cherokees will have as for- tunate a termination as the recent effort with the Creeks, I have the honor to be,
Sir, with great respect, your obedient servant, JOHN FORSYTH.
Hon. JAMES BARBOUR,
Secretary of War.
MR. BARBOUR TO MR. FORSYTH.
DEPARTMENT OF WAR, March 23, 1825.
SIR :- I have the honor to acknowledge the receipt of your letter of the 9th inst., conveying the information that you had, by the request of Gov. Troup, asked the attention of the President to the claims of the State of Georgia upon the United States under the compact of 1802, and the desire of the President that you should address yourself to me, that the sugges- tions made on the part of the State might be duly considered ; also, and in compliance with this desire, inviting my attention, first, to the execu- tion of the treaty concluded with the Creeks at the Indian Springs, and, secondly, to the formation of a new treaty with the Cherokees.
The treaty of the Indian Springs, having been ratified, will be carried into effect, measures having been already taken in conformity to its pro- visions.
Upon the second subject referred to in yours, I have the honor to state in reply that the President, as well from inclination as a sense of duty, is disposed to carry into effect the conditions of the compact with Georgia whenever that can be done consistently with its provisions. In this spirit, and in conformity to your suggestion, a letter was addressed from the De- partment to the delegation of the Cherokees in this place, a copy of which, marked A, is herewith enclosed; also a copy of their answer, marked B, to which is added a copy of a communication marked C, addressed by the Cherokee chiefs to the President. You will readily perceive from this correspondence the determined opposition of the Cherokees at this time to the cession of their lands.
I am directed by the President to state that he entirely accords in the policy recommended by Mr. Monroe to Congress at their last session on
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BENCH AND BAR OF GEORGIA.
the subject of the general removal of the Indians to the west of the Mis- sissippi,-a policy believed to be alike advantageous to the citizens of the United States in their neighborhood and the Indians themselves. This object, as far as lies within the sphere of his power, will be promoted, and, on every suitable occasion, its beneficent effects will be particularly incul- cated on the Cherokee Nation.
I have the honor to be, very respectfully, your obedient servant,
JAMES BARBOUR.
Hon. JOHN FORSYTH.
(A.)-MR. McKENNEY TO THE CHEROKEE CHIEFS.
DEPARTMENT OF WAR, OFFICE OF INDIAN AFFAIRS, March 12, 1825. To John Ross, George Lowrey, and Elijah Hicks, Cherokee Delegation.
FRIENDS AND BROTHERS :- I am directed by the Secretary of War to inquire if you have authority to negotiate with the Government for a sale of your lands, and especially for that portion of them lying within the limits of Georgia.
I am, respectfully, your friend and brother, . THOMAS L. MCKENNEY.
(B.)-EXTRACT FROM THE REPLY OF THE CHEROKEE DELEGATION.
WASHINGTON, March 14, 1825.
Yours of the 12th inst. is received. You state that you are directed by the Secretary of War to inquire if we have authority to negotiate with the Government for a sale of our lands, and especially for that portion of them lying within the limits of Georgia. It would seem from the inquiry that the Secretary of War is impressed with the belief that our nation may be disposed to make a cession of our lands, and that we as its representatives may have been instructed accordingly. In order that the Secretary of War may have full information of the true sentiments and disposition of our nation, we would refer him to the communication which we had the honor to address to the Hon. John C. Calhoun on the 11th February, 1824, in reply to certain propositions made by the President, through him, to us for our lands. We have full authority for saying that those sentiments remain the same, and are unchangeable.
(c.)-TO HIS EXCELLENCY JOHN Q. ADAMS, PRESIDENT OF THE UNITED STATES.
RESPECTED SIR :- Be pleased to accept our congratulation for the great trust confided to your care as President of the United States. The various tribes of Indians emphatically call the President father, and to him they, as children, look for protection and preservation. Therefore we consider it a duty as well as a privilege to address you.
A retrospective view of the history and true causes in the downfall, degradation, and extinction of certain tribes exhibits a solemn and impo- sing lesson, which may be profitable in administering justice to those few who at this day breathe the vital air on the land of their fathers. The crisis seems to be at hand which must forever seal their doom. Civiliza- tion and preservation, or dispersion and extinction, awaits them, and this Government is the tribunal which must pass the sentence.
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