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 3
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21
JOHN FORSYTHI.
We therefore solicit your attention to a few remarks which we believe it to be our implicit duty to make in relation to the Cherokee people whom we represent. The arts of civilized life have been successfully introduced among them : they consider themselves permanently settled, and no inducement can ever prompt them to abandon their habitations for a distant, wild, and strange clime. They are well aware of the earnest solicitude of the State of Georgia for their removal, and also are apprized of the desire of the Government to gratify the wishes of Georgia, if their consent could be obtained. And, whilst the Cherokees are ever ready to comply with the views and wishes of the Government, they cannot con- sent to yield another foot of land. Unceasing exertions have from time to time been used to purchase from the Cherokees their lands in Georgia; but we have never as yet witnessed a single attempt made on the part of the Government to bring the compact of 1802 with Georgia to a close by compromise, or in any manner other than by trying to purchase our lands. For the peace and tranquillity of our nation do we sincerely hope that measures may be adopted by the United States and the State of Georgia, so as to close their compact without teasing the Cherokees any more for the lands. The Cherokees have repeatedly declared their sentiments respecting their lands to the Government: those sentiments have been matured in soberness and expressed in sincerity.
The idea of concentrating the various tribes of Indians for the object of civilizing and preserving them west of the Mississippi is a subject of great magnitude, and may perhaps contribute to better the condition of those tribes who have been removed from their lands and are now wan- dering over the wild and extended plains of the West. But if Indian
civilization and preservation is sincerely desired, and is considered worthy the serious attention of the United States, never urge the removal of those tribes who are now successfully embracing the habits of civilized man within their own limits. A removal of the Cherokees can never be effected with their consent; consequently, if removed at all, it must be effected by such means as would engender irreconcilable prejudices, and their disper- sion and ultimate extinction would inevitably follow. The Cherokees if permitted to remain peaceably and quietly in the enjoyment of their rights, the day would arrive when a distinction between their race and the American family would be imperceptible : to such a change the nation can have no objection. Complexion is a subject not worthy consideration in the effectuation of this great object. For the sake of civilization and preservation of existence, we would willingly see the habits and customs of the aboriginal man extinguished. The sooner this takes place, the great stumbling-block of prejudice will be removed.
May the power of Heaven direct your steps for the good of all under your administration, is the sincere prayer of,
Sir, your unworthy but most obedient servants,
JOHN ROSS, GEO. LOWREY, ELIJAH HICKS.
WASHINGTON CITY, March 12, 1825.
GOV. TROUP TO MR. FORSYTH.
EXECUTIVE DEPARTMENT, GEORGIA, MILLEDGEVILLE, April 6, 1825.
SIR :- Your letter of the 24th ult., covering a correspondence between yourself and the Secretary of War, and other papers connected with the
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fulfilment of the stipulations of the articles of agreement and cession, was received yesterday. Accept my thanks for your unremitted attention to the interest of the State : they are due from the people to you and the rest of the delegation for your generous and patriotic devotion to their rights, and for the firmness and dignity with which on every occasion you have supported them.
On the opening of a new administration of the General Government, soon after an important concession had been made to our just demands, it is scarcely necessary to inform you how eagerly I sought repose from the painful altercation which it had been my imperious duty to wage with the constituted authorities of the Union, and with how much of hope and anxiety I looked forward to the future, trusting that in better and improved relations we would find a kindly and conciliatory spirit succeed to troubled feelings,-the sense of wrong on either side consigned to for- getfulness, and the claims of Georgia recognised in all the extent which reason, justice, and good faith would warrant. I trust that for these more has not been asked,-that less will not be received.
It cannot be dissembled, however, that in the answer given by the Secre- tary of War to your communication of the 9th ult., presupposing the best disposition to do right, a course of policy is indicated which must infal- libly terminate in wrong. It is of kindred spirit with that which for a time kept us in abeyance with the Creeks and held the State suspended between the most fearful alternatives. On the 12th of March, the dele- gation of Cherokees at Washington laid before the President their cus- tomary annual protest against a cession of lands on any terms, now or hereafter. On the same day they are asked, by order of the Secretary of War, if they will sell lands. They answer no; and this answer is echoed by the Secretary of War to you. I hope it is not considered, as it pur- ports to be, final. Should the proposition be renewed, another and a very different character must be given to it. The Cherokees must be told in plain language that the lands they occupy belong to Georgia ; that sooner or later the Georgians must have them ; that every day-nay, every hour- of postponement of the rights of Georgia makes the more strongly for Georgia, and against both the United States and the Cherokees. Why conceal from this misguided race the destiny which is fixed and unchange- able ? Why conceal from them the fact that every advance in the im- provement of the country is to inure to the benefit of Georgia,-that every fixture will pass with the soil into our hands, sooner or later, for which the United States must pay an equivalent, or not, to the Indians, according to their discretion ? The United States are bound, in justice to them- selves, instantly to arrest the progress of improvement in the Cherokee country. It is the reason constantly assigned by the Cherokees for their refusal to abandon the country. The force of the argument, therefore, if good now, increases with the progress of improvement ; the progress of improvement will be accelerated by the irresistible force of the argument.
Thus, by a double ratio of geometrical progression known only to the logicians of modern times, Georgia will find herself in a predicament in which, whatever may have been the aggravation of her wrongs, she never before stood,-disseized of both the argument and the lands. Why not, therefore, in common honesty and plain dealing, say to the Indians, Remove now, or stay the hand of improvement forever. Now we will give you the full value of improvement ; hereafter we will give nothing, because we cannot afford to pay for improvements from which no benefit
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JOHN FORSYTH.
will result to us, which will belong to the Georgians, and which you were forewarned in good time not to make. Let them say, Now is the appointed time. We offer you acre for acre, and we change your tenancy at will into a fee-simple which will descend to your posterity forever. If you accept, well and good; if you refuse, we are not bound to make the same offer again. You were once without a country ; you sought refuge among the Creeks : they received you with open arms, and gave you the lands you now occupy. Take care that you are not without a country again : you may find no more Creeks, no more lands.
Is it to be conceived that such an argument would be wasted on the Cherokees ? What motive would be left to them to continue in a state so precarious, when-every incentive to human industry being destroyed, the barn, the dwelling, the out-houses, the farms, falling into decay and ruin -the wretched Indian scatters upon an impoverished and exhausted soil the seed from which it is even doubtful if he is permitted by the impa- tient white man to reap the scanty harvest ?
Is it forbidden to speak the language of truth and friendship? It may be that all will avail nothing. If all should, it will be because the Chero- kees distrust the sincerity of the United States. That they have reason for distrust, even in the conduct of the United States toward them, is undoubted. When they were willing to cede lands the United States would not take them. In the conduct of the United States toward the Creeks they think they see abundant proof of the lukewarmness and in- difference of the General Government in carrying into practical effect, so far as concerns Georgia, the plans which they devised for the removal of the Indians. It is of no consequence that the Indians are deceived by appearances : the appearances would deceive anybody. They see the Agent for the Creeks, well knowing the officially-expressed will of the Government, opposing himself to that will, holding councils of the In- dians for the very purpose of anticipating and forestalling the Commis- sioners of the United States by inconsiderate and violent resolves, the same as those of the Cherokees themselves.
When the treaty is holden at Broken Arrow, the Cherokees are present by their emissaries under the eye of the Agent, busied to defeat, by the most wily machinations and contrivances, the objects of the treaty. They witness the failure of the treaty, and by these means. Is such a case ex- plicable before the Indians,-the servant setting at naught the will of the master, and the master countenancing the servant in defying that will ? The Government itself, when asked for the resolution of these mysterious things, resolves them into a misconception of duty.
On the renewal of the treaty at the Indian Springs, the like scenes are presented to both whites and Indians. The Agent-professedly aiding the Commissioners, secretly undermining them, dismissing in the dead of night the chiefs who had agreed to sign the treaty, protesting the treaty after having affixed his own signature to it as a witness, on the ground that those very same chiefs did not subscribe to it, announcing to his Government that the treaty was in direct violation of its own instructions, insinuating very strongly that improper means had been adopted to pro- cure it, and denouncing the hostility of the Indians in the event of its ratification.
The poor Cherokees knew as well as the most enlightened member of the Cabinet, that, if a foreign minister of the first grade had dared the one-half of this, he would have been dismissed with disgrace. Yet the
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Agent, opposing himself to his Government, as it would seem,-certainly opposing himself to the Commissioners appointed by that Government,- passing on to Washington for the avowed purpose of preventing the rati- fication of the treaty, meets a cordial greeting of his employers there ; and when the President, discrediting every word of the Agent, had sub- initted the treaty to the Senate,-when the Senate, in like manner trusting nothing to the Agent, and reposing confidence in the declarations of the Commissioners, had ratified it,-he is permitted to depart for his Agency, if not with new demonstrations of affection, without, so far as I know, the slightest reprehension or blame. And, what is more than all, after having placed himself at the head of a party adverse to that which is now domi- nant, and which had recently ceded the country to us, he is appointed the guardian of the whole,-to conduct to their new and distant home this hapless race, to command their destinies through untried and checkered scenes, and to make his distance from the controlling power an absolute surety against all scrutiny and responsibility.
The only apology attempted by the Agent, for any allegation of mis- conduct or aberration from duty in these respects, has been,-'Twas not I, 'twas the sub-Agent : "Twas not I, 'twas the interpreter. The United States might possibly be the voluntary dupe of such shallow pretences,- certainly not the Cherokees or the Georgians. Ask the Commissioners if, but for the interference of the Agent, there would have been any serious difficulty at Broken Arrow ? Ask them if, at the Indian Springs, an almost unanimous concurrence of the chiefs might not have been commanded, but for the counterplots and underworking of the Agent ? Ask any member of the Cabinet, notwithstanding the passage of resolves and protestations to the contrary, if he may not command a treaty on a given day, upon just and reasonable terms, for a cession of all the lands claimed by the Cherokees ?
Be pleased to present a copy of this note to the Secretary of War. Upon the general subject every thing has been heretofore said which it was proper or becoming to say ; and I had resolved not to resume it unless invited on the part of the Federal Government or commanded by the Legislature of the State. The more recent events may not have been portrayed before the present Cabinet in the same light in which you and myself cannot fail to regard them. The gentlemen who have recently come into it I know personally, and will be very much deceived if they are not deserving our highest confidence as intelligent, upright, and patriotic men. If they under- stand this matter correctly, they will see that it is not a question about some five or six millions of acres of land : it is one of principle and of character, connected with the honor of the Government, and therefore above all price.
The people of the United States, content with their political institu- tions, ask nothing of their rulers but purity in the administration of their affairs, disinterestedness, singleness of purpose for the public weal, sincerity and plain dealing on the part of all the functionaries, from the highest to the lowest, fidelity to every trust, and strict accountability in the fulfilment of every duty, to the exclusion of selfishness, intrigues, tricks, and devices of low cunning to gratify party passions and subserve sordid interests. Hucksterings and barterings, and all the rest, they will cheerfully leave to the mountebanks and jugglers to whom they appro- priately belong.
With great consideration and respect, G. M. TROUP.
Hon. JOHN FORSYTH.
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JOHN FORSYTH.
This correspondence is worthy of lasting preservation and fre- quent perusal, to bring up the issue involved, the manner in which it was sustained by the Chief-Magistrate of Georgia, and by Mr. Forsyth, one of his main supporters in Congress. The letter of Gov. Troup last given ably sums up the whole question.
Of the perils which clustered in the path of Gov. Troup, and the intrepidity with which he defied them,-his letter to the President demanding the arrest of Major-General Gaines, of the United States army, his closing the commission of Col. Timothy Pickering Andrews, the special Agent, and the whole series of heroic deeds in this great State-Rights campaign,-nothing more need be said than that he triumphed over all factions at home, over the wisdom of President Adams, and the valor of his military representative.
As the second term for which Gov. Troup was elected was draw- ing to a close, and he declining a re-election, Mr. Forsyth was pre- sented by the party as the most suitable man to succeed him. The competitor agreed upon by the Clark party (nominating-conven- tions were not in vogue then) was the Hon. Matthew Talbot, who, as President of the Senate, discharged executive functions a short time on the death of Gov. Rabun in 1819. He was an estimable man, but died on the 17th day of September, 1827, about two weeks before the election. No other candidate was formally brought forward to oppose Mr. Forsyth, who received 22,220 votes, and the "scattering" count was 9072.
The author was present in the gallery of the Representative- Chamber when Mr. Forsyth delivered his inaugural address and took the oath of office, in November, 1827. He well remembers the graceful allusion the Governor elect made to his "fortunate and respected predecessor," the great Troup, who sat behind him in the Speaker's chair. A large concourse, including quite an array of beauty and fashion, witnessed the ceremony, all admiring and praising the new Governor : at least, his political friends appeared to rejoice.
It will be perceived that Gov. Forsyth soon brought before the Legislature the project of a code to embrace the common as well as the statute law in force in Georgia.
(Journal of the Senate, p. 49.)
The following communication was received from his Excellency the Governor, by Mr. Pierce, his Secretary.
EXECUTIVE DEPARTMENT, GEORGIA, MILLEDGEVILLE, Nov. 12, 1827.
The 18th section of the third article of the Constitution provides " that within five years after the adoption of the Constitution, the body of our law, civil and criminal, shall be revised, digested, and arranged
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under proper heads, and promulgated in such manner as the Legislature may direct." To carry into effect this section of the Constitution, an act was passed by the General Assemby, on the 6th day of December, 1799. Other acts having relation to the subject have been subsequently passed. One-the act of the 12th December, 1809 -- is of permanent operation, and requires the compilation and publication of a digest of the laws of every ten years, at the successive termination of that period of time. Different digests, now in common use throughout the State, have been compiled and published under the authority of these acts. The terms used in these acts, and the contents of the several digests published, which have been approved as if properly executed according to the intentions of the several Legislatures by whom the acts were passed, demonstrate that the part of the Constitution quoted was construed to apply to the enactments of the provincial Assemblies, and to those of the General Assembly since the Revolution only. In some of the acts, special provisions appear to have been considered necessary for the insertion into digests of a few im- portant English statutes. The intention of the framers of the Constitu- tion appears to the Executive to have been of a higher character. With perfect respect for those who have acted on a different opinion, the authors of the Constitution obviously contemplated the revision, digest, and ar- rangement of the written and unwritten law of the State, and the pub- lication of the whole in the most useful form. The terms the " body of our law, civil and criminal," are general, and comprehend within their scope the common law equally with the statute. Indeed, should it be thought necessary to make a distinction between them, "the body of our law, civil and criminal," must be taken to be exclusively applicable to the common law as the trunk from which the statute law has branched forth. It is not now possible to fulfil the intentions of the Constitution within the time prescribed ; but the obligation upon us is not impaired by the lapse of time, nor by the errors, the omissions, and the inadvertencies of those who have preceded us. Reflections on the vast importance of the contemplated work and its extensive utility, if performed with en- lightened labor, are deliberately excluded from a communication intended to invite the attention of the General Assembly to the single question of constitutional obligation. JOHN FORSYTH.
Which was read and referred to the Committee on the Judiciary,-
Messrs. Clayton of Clark, Davies, Gamble, Crawford of Hancock, Phil- lips, Ezzard, Walthour, Wilson, Munroe, Sellers, and Worthy.
From a hasty glance over the Journal, the author has not been able to discover any action or report of the committee on the sub- ject referred. The suggestion was certainly one of great import- ance, and would no doubt have been carried into effect if the com- mittee had believed the duty to be imperative, as his Excellency understood it.
That portion of Governor Forsyth's message of 1828 which re- lates to a court for the correction of errors is here given :-
The condition of the Judiciary requires your most serious attention. Under the present arrangement of eight Judges of the Superior Courts, each confined to the circuit for which he was elected, supreme in his authority, not bound by the decisions of his predecessors or cotemporaries,
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JOHN FORSYTH.
and not always by his own, which will be in their turn disregarded by his successor, there can be neither uniformity nor certainty in the laws for the security of the rights of persons or property. It is an awful reflec- tion that property, life, liberty, and reputation are, with us, dependent upon the decision of a single judge, uncontrolled and uncontrollable within his circuit, and not always distinguished for ability, intelligence, and integrity. The confusion produced by cotemporary contradictory decisions every day increases : property is held and recovered in one part of the State, and lost in another part of the State, under the same circumstances ; rights are asserted and maintained in one circuit, and denied in another, in analogous cases.
So much depends upon the opinion of a presiding judge, that suits are matters of speculation and management. The most astute lawyer, scrupulously conscientious in the advice given to his clients on cases sub- mitted to him, can only inform them what will be the result if actions are brought and decided during the term of the then presiding judge. Suits are brought or postponed, pressed to trial, suspended or delayed, by the parties, according to the known or supposed opinion of the presiding judge and the nearness or remoteness of the time when a new election of judges must occur. We have all the complicated judicial machinery for the correction of erroneous judgments. Appeals, writs of error, motions for new trials and in arrest of judgment, are used as if in mockery,-since the appeals are tried, the writs determined, the motions decided, by the same judge whose erroneous judgment is to be corrected, arrested, or set aside.
All the delays of the English system are permitted ; but time only is gained or lost, unless, indeed, the presiding judge has a mind of extra- ordinary vigor and magnanimity, capable of discovering and prompt to confess its errors, or death or a new election removes him from his place. The destruction of this judicial octarchy by the substitution of a single su- preme judge, whose decision should govern in all the circuits, would be an important improvement. It is not necessary to vest such tremendous power in the hands of one individual. The object to be accomplished can be attained by less dangerous means. The most simple and obvious remedy is the establishment of a court for the correction of errors, &c. This remedy cannot, in my judgment, be applied without a change in the Con- stitution, which requires that " errors shall be corrected and new trials determined in the Superior Court of the county in which the action originated." Under this clause of the Constitution, however, conventions of the judges have been required ; and in these, properly regulated, a pal- liative may be found for the existing disorders, until a radical cure can be effected by an alteration of the Constitution.
The administration of Gov. Forsyth was disturbed by no bitter contests. He adhered to the policy of his predecessor, from whom he received the Great Seal of State,-which was, indeed, strictly in accordance with his own principles and convictions. His message of November 3, 1829, closed as follows :-
I congratulate you on the present condition and future prospects of the' State. Blessed with peace, health, and abundance,-with immense re- sources in possession and greater in expectancy,-what is there we can rationally desire to effect that we may not hope to accomplish ? For
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BENCH AND BAR OF GEORGIA.
the manifold bounties bestowed upon us by a benignant Providence more is due than humble gratitude and heartfelt thanks. These become all men; but public agents must remember that from those to whom much is given much is expected; and, if unwilling to be classed with the un- profitable servant who buried his talent in the earth, the gifts bestowed must be turned to useful account by unremitted and well-directed toil. May that Being in whose hands men and empires are dust and ashes smile on your labors, secure you here the reward of well-deserved applause, and crown you hereafter with immortal joy !
At the session of the Legislature in 1829, Gov. Forsyth was elected to the Senate of the United States, and soon became the champion of Gen. Jackson's administration in that branch of Con- . gress. His powers of debate and capacity as a leader will be noticed elsewhere in this memoir. The Tariff of 1832, which operated so unjustly upon the South, contained the odious mini- mum feature, as will be seen by the following clause from the second section :-
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