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 7
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There is, however, Mr. Speaker, one other State which has recently adopted resolutions containing sentiments still more decisive and appro- priate to the present investigation. I hold in my hand certain resolutions of the Legislature of Massachusetts, which, if I am not greatly mistaken, carry the doctrine of State Rights as far as Georgia or any other State has ever contended for. Sir, it is with peculiar pleasure that I read such sound and wholesome doctrines coming from this ancient and venerable Commonwealth.
Sir, in the discussion which took place in this House two years ago, on the bill providing for the removal of the Indians, I maintained that that article of the treaty of Holston between the United States and the Cherokees, which guaranteed to the Indians the possession of lands lying within the chartered limits of Georgia, was unconstitutional and void, and that Georgia had the right so to consider it. Strongly as this doctrine was at that time contested, I was sensible that nothing but a good endorser was wanting to give it currency. Little did I promise myself that I should so soon have an endorser of such unquestionable character. Who will now venture to controvert principles coming to us with the broad seal of this renowned Commonwealth ?
The controversy with regard to our northeastern boundary between Maine and New Brunswick is familiar to every gentleman here, as are the negotiations which have been carried on between this and the British Go- vernment, and the decision of the King of the Netherlands, the arbiter selected by the two Governments to settle the disputed boundary. In regard to the decision by which a portion of territory heretofore claimed by Maine and Massachusetts has been adjudged to belong to Brunswick, the Legislature of Massachusetts
" Resolved, That the Government of the United States has no consti- tutional right to cede any portion of the territory of the States composing the Union to any foreign power, or to deprive any State of any land or other property, without the consent of such State previously obtained; and that any act purporting to have such effect would be wholly null and void, and in no way obligatory upon the Government or the people of the said States."
Sir, Georgia has never gone farther than this in the assertion of her
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rights. She has only carried out into practice the principles here laid down. Exercising this right of judging for herself, when the Federal Government has transcended its constitutional powers, she has regarded its acts done in violation of the Constitution as null and void, and in no way obligatory upon her Government or people. And in future, whenever our brethren of Massachusetts shall be disposed to indulge in those cen- sures and denunciations of us of which they have been heretofore so un- sparing, it is to be hoped that they will first refer to the records of their own Legislature, and remember, while they are condemning us, what a judgment they are pronouncing upon themselves.
But let us hear the sentiments of Maine on the subject which has so excited Massachusetts. Among the proceedings of her Legislature of 1831 we find the following resolution :-
"That the Convention (treaty between the United States and Great Britain) of September, 1827, tended to violate the Constitution of the United States and to impair the sovereign rights and powers of the State of Maine, and that Maine is not bound by the Constitution to submit to the decision which is, or has been, made under that Convention."
Still later, and only during the past winter, we find the Legislature of this State following up these principles by adopting, among others, the following resolution :- "That if there is an attribute of State sovereignty which is unqualified and undeniable, it is the right of jurisdiction to the utmost limits of State territory." Sir, comment here is unnecessary. These declarations are so plain that he who runs may read; and I most sincerely hope that the principles thus asserted by Massachusetts and Maine will be maintained by every State in the Union. This Govern- ment does not possess the power of ceding away either the property or jurisdiction of any one of the States without its consent; and a treaty entered into for this purpose is not, and cannot be, binding on the State whose territory is thus disposed of, or whose jurisdiction is thus attempted to be limited.
I am aware, Mr. Speaker, that the expressions of opinion or the rea- soning of the Southern States on these points will have very little weight with many gentlemen here; but it is due to the State of Virginia, the Old Dominion, that ancient Commonwealth to which we are so much indebted for the propagation of sound political principles, to show how steady and uniform she has been in her course. I therefore beg leave to read one or two resolutions passed by her Legislature in the year 1828 :-
" Resolved, That the Constitution of the United States being a fede- rative compact between sovereign States, in construing which no common arbiter is known, each State has the right to construe the compact for itself : That in giving such construction each State should be guided, as Virginia has ever been, by a sense of forbearance and respect for the opinions of the other States, and by community of attachment to the Union, so far as the same may be consistent with self-preservation and a determined pur- pose to preserve the purity of our republican institutions."
These resolutions were preceded by a report, setting forth in strong language those State-Right doctrines which, in '98, Virginia was among the first to advance, and which, it is hoped, she will be the last to relin- quish.
Considering the intimate relationship in which my own State stands to the present discussion, I shall be pardoned, Mr. Speaker, for referring
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to her history. In the year 1791, the case of Chisolm's executors against that State, to which the honorable gentleman from New York (Mr. Pen- dleton) has referred, was brought in the Supreme Court of the United States. And here, sir, we are furnished with testimony of the early disposition of this tribunal to assume powers not intended to be conferred on it. When the Constitution was framed, the idea of clothing this court with jurisdiction over causes to be brought against a State, so far as we can learn from the Journals of Debates, was, never even suggested. It was certainly not contemplated by the Convention, else it would have been expressed in the Constitution. But we have stronger evidence that it was not intended. That part of the Constitution giving the Supreme Court jurisdiction of controversies between two or more States, between a State and citizens of another State, and between a State, or the citizens thereof, and foreign States, citizens, or subjects, was zealously and vehe- mently opposed by Mr. George Mason in the Virginia Convention. And what were the replies of Mr. Madison and Mr. John Marshall ?- replies which have been so frequently referred to of late, and which ought from the beginning to have put this question at rest. Mr. Madison says, in the most explicit terms, that
" The jurisdiction in controversies between a State and citizens of an- other State is much objected to, and perhaps without reason. It is not in the power of individuals to call any State into court. The only operation it can have is, that if a State should wish to bring suit against a citizen it must be in the Federal court. This will give satisfaction to individuals, as it will prevent citizens, on whom a State may have a claim, being dis- satisfied with the State courts; and, if a State should condescend to be a party, this court may take advantage of it."
This is the opinion and (as remarked with regard to another subject) the testiniony of Mr. Madison, one of the principal actors in the forma- tion of this instrument. Had it been intended to confer this power, Mr. Madison would have candidly admitted it, and not attempted to palm a delusion upon the people of his own State. But let us hear the opinion of his great coadjutor, Mr. Marshall :-
"With respect to disputes between a State and citizens of another State, the jurisdiction has been decried with unusual vehemence. I hope no gentleman will think that a State will be called at the bar of the Fede- ral court. Is there no such case at present ? Are there not many cases in which the Legislature of Virginia is a party and yet the State is not sued? It is not rational to suppose that the sovereign power will be dragged before a court. The intent is to enable States to recover claims of indi- viduals residing in other States."
Sir, could words be plainer or more explicit? Could language have been employed better calculated to quell the fears and quiet the appre- hensions of the most jealous? Could it then have been believed that in less than five years suits would have been brought against one of these States by individuals ? that individuals would have called a State into court, and that the Supreme Court would have sustained jurisdiction ? Yet such was the case with several of the States, and among them was the case already mentioned,-of Chisolm's executors against the State of Georgia. But Georgia knew too well the jurisdiction intended to be conferred on the Supreme Court. She knew her rights,-the rights of sovereignty which she had retained and those which she had delegated ; and acting upon the right for which I have been contending, of con-
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struing the Constitution for herself and of determining on its violations, she would not "condescend to be a party" to the cause; and she was actually proceeding to take measures for the protection of her sovereignty, when her sister States, conscious that she was right, and that the court was attempting to exercise a power not conferred on it, interposed, and, by an amendment to the Constitution, expressly provided that "the judicial power of the United States shall not extend to the commence- ment or prosecution of suits against one of the States by an individual." Yes, sir : so well satisfied were the other States that Georgia was right in resisting this attack upon her sovereignty, that they even framed this amendment to the Constitution, so as to apply to cases already commenced and then pending. I ask, in the most perfect confidence, whether there could be a more decisive concession of the rights asserted and maintained by the State of Georgia.
The speech itself covers sixteen pages, closely printed in double column, and is a master-piece in the way of analysis and argu- mentation. The points to which Col. Foster addressed himself chiefly were,-
1. That the missionaries claimed to be citizens of Vermont, and, being individuals, could not call the State of Georgia to the bar of the Supreme Court, under the Constitution.
2. That the article in the treaty of Holston, by which the Government of the United States guaranteed the possession of the lands occupied by the Cherokees to that tribe of Indians, was void, as disposing of the territory of Georgia without her consent.
3. That the plea set up by the missionaries to the jurisdiction of the State court, resting upon the validity of the treaty of Hol- ston, which recognised the Cherokee Indians as an independent nation within the chartered limits of Georgia, was insufficient, and that the Supreme Court had no power to reverse the decision of the State tribunal overruling that plea.
4. That the exercise of such power by the Supreme Court, or by Congress, was unauthorized by the Constitution, and would justify the State of Georgia, as a sovereign judge, in taking such measures as she might deem necessary to protect her rights from aggression.
The grounds were well taken and well supported by Col. Foster, as his speech abundantly proves. The extract given is only a specimen of his reasoning and of his method of applying authori- ties ; but it does not contain the strength of the argument. It was a masterly production ; and, had he afforded no other evidence of his ability and learning, this single speech deserves to enroll him among the enlightened statesmen and sound constitutional lawyers of the age.
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Another speech will be referred to, on the deposit-question. It will be recollected that in September, 1833, President Jackson issued his Cabinet paper, directing Mr. Duane, Secretary of the Treasury, to remove the public money from the Bank of the United States to certain State banks on deposit. The Secretary declined obeying the order, and was removed from office. Mr. Taney, his successor, signed the necessary order, and the deposits were forth- with transferred,-say twenty millions of dollars or thereabout,- which compelled the United States Bank to curtail its discounts and press its debtors, all ending in a frightful panic.
At the ensuing session of Congress a bill was reported "regu- lating the deposit of the money of the United States in certain State banks." On the 20th June, 1834, the bill being under consideration, Col. Foster addressed the House of Representatives, in a speech of considerable length and of marked ability, in oppo- sition to the measure. He maintained that the bill gave the public purse into the custody of the President, who, already having the sword, would be clothed with power forbidden by the Constitution. The following is an extract from the speech :-
Mr. FOSTER would present another case, for the purpose of carrying out the doctrines of the honorable gentlemen from Alabama, (Messrs. Clay and Mardis.) Suppose a citizen of that State should borrow from the United States Bank ten thousand dollars, giving his note, and, failing to pay when the note became due, should be sued by the bank. And suppose the borrower should resist the payment of the note on the ground of the unconstitutionality of the bank-charter: would they consider the plea sufficient to release the debtor from the payment of the money thus borrowed? But even if they should determine that by reason of the unconstitutionality of the charter an action could not be supported on the obligation thus given to the bank, what would they say of the morality of the man who could set up such a defence ? Such an act would meet the indignant scorn and contempt of every honest man. And where was the difference between a Government and an individual in this respect? For himself, he was not well versed in that code of morals which, while it exacted from individuals a rigid discharge of their obligations, con- sidered the solemn pledge of a Government as a mere commonplace thing, to be sported with at pleasure. He placed a higher estimate on national faith. He considered Governments bound by the same rules of common honesty and moral obligation as the private man ; and, so long as he had any participation in the public councils, he should endeavor to act on this principle. It was this principle which had influenced his vote with regard to the restoration of the deposits. That same morality which would oblige him as an individual to discharge a debt contracted with the bank would impel him as a public man to redeem the faith of the Govern- ment so solemnly pledged to it.
This pledge alone, Mr. FOSTER said, would restrain him from voting for the bill now before the House, or any other bill for depositing the public
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money anywhere but in the United States Bank, during the continuance of its charter, provided it complied with its contract for the safe keeping and transfer of the public money. Gentlemen had dwelt very earnestly upon the mischief and ruin which would be produced at the end of two years by retaining the deposits, unless the charter of the bank were renewed. Mr. F. had the same reply to make to this argument that he made to gentlemen who urged him to vote for the renewal of the bank- charter to prevent derangement of the currency, commercial embarrass- ments, and general distress. Even if it were certain that all these results would be the consequence of a refusal to renew the charter, his vote would be the same. He should consider this renewal as a violation of the Con- stitution, as already remarked ; and such violation he could not commit on grounds of expediency. So with regard to the bank-charter,-the con- tract between the Government and the corporation. He could not go into the consideration of the mischief which might grow out of a fulfilment of the stipulation of the Government with respect to the deposits : that was a matter for the framers of the charter to have considered : it was enough for him that such is the contract. Here is the bond of the Government; and, even though executed to such a "monster" as the bank, so far as it depended on him it should be faithfully kept.
Mr. FOSTER objected to this bill, also, because it was giving the sanction of Congress to what he considered the illegal act of the Executive in removing the deposits. But, more than this, it not only acquiesces in, but carries out, the principles assumed by the President in his " Cabinet paper," and more distinctly claimed in a document which has acquired some notoriety, commonly called the PROTEST. What were those prin- ciples ? Why, that the Secretary of the Treasury is an Executive officer, and therefore entirely subject to Executive control; and that whatever power is conferred or duty imposed on the Secretary by Congress is to be executed under the supervision and direction of the President. The President has indeed gone further with regard to the public money, and claims not only that its custody belongs to the Executive Department, but that " Congress cannot take it out of the hands of that Department without an assumption of Executive power and a subversion of the first principles of the Constitution."
Mr. F. did not intend to enter here into an examination of these extra- vagant and alarming pretensions : the short time which he felt himself justified in occupying, at this late hour of the session, would not allow him to do so, nor was it at all necessary for his present purpose. He merely wished to call to the recollection of the House the ground assumed by the President in affirming his right to control the Secretary of the Treasury in the exercise of whatever power was conferred on him by Congress, and the avowal of his determination to exercise this right, and then to point out the sanction we are called on to give to this claim of power. In the first section of the bill under consideration the Committee of Ways and Means propose to provide " that it shall be the duty of the Secretary of the Treasury to select and employ, as the depositories of the money of the United States, such of the banks incorporated by the several States," &c.
Here, then, with fair notice of the right asserted by the President, the committee propose so to regulate the deposits of the public moneys as to place them entirely within his custody and control. It was indeed some- what remarkable that, with this claim of power staring them in the face, and with the professions so repeatedly made that the great object was to
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guard the public treasury and place it beyond Executive interference, the committee should have thought proper to apply to the Executive to pre- scribe these safeguards and suggest the regulations necessary to be made. Yes, sir : the committee state in their report that they " deemed it proper, in a matter of so much importance, to ascertain from the Secretary of the Treasury his opinion and views in regard to the regulations proper to be adopted in the employment of the State banks as the depositories of the public money;" and they report to the House the Secretary's letter upon the suggestions of which this bill is founded; and as, by the new Executive creed, the Secretary is entirely under the control of the President, this letter has doubtless received his approbation : so that we are now furnished with an Executive project for regulating the custody of the public money, which is to be matured by Congress ; and, as might have been expected, the Executive, in perfect consistency, contemplates by this project such regulations as will leave the depositories to its selection and employment, and thus secure the custody which it claims.
After Col. Foster retired from Congress in 1835, he resumed the practice of his profession with his usual ardor, and was em- ployed in most of the important causes of his circuit, and in other parts of the State when specially retained. His pecuniary con- dition being independent, he was enabled to support that hospitality so well suited to his character and the graceful manner in which he entertained his friends. In 1840, on the invitation of the Whigs of Alabama, he attended the mass convention held at Tus- caloosa, the first demonstration on a large scale in the Southwest which foretold the success of Gen. Harrison. The gathering of the people was very large,-several thousand; the array of banners, emblems, and other campaign-devices, then attractive for their novelty, rendered the occasion one of great popular interest. The Hon. John S. Hunter, a Van Buren elector in 1836, presided. The great men of the Whig party in Alabama were there,-among them the Hon. Arthur F. Hopkins and Harry I. Thornton, formerly Judges of the Supreme Court; Governor John Gayle, now Judge of the United States District Court; Henry W. Hilliard, since a Representative in Congress, minister to Belgium, and Regent of the Smithsonian Institute; Hon. Benjamin F. Porter, Judge of the Circuit Court, and late Reporter of the Supreme Court; William M. Murphy, distinguished alike at the bar and on the hustings for argumentative oratory ; William R. Smith, a Representative in the last Congress ; J. W. L. Childers, since Mayor of Mobile,-a man of splendid eloquence, moving the masses at his will; and Joseph J. Hutchinson, of mirth-provoking wit and fearless determination, who, convinced of the emptiness of public honors, has since humbled his ambition at a holier shrine, and is now a presiding elder in
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the Alabama Conference of the Methodist Episcopal Church, South, exerting great influence for good.
These were some of the leading men of Alabama, with whom Col. Foster was drawn in fraternal association in a great party struggle. He was seated on the platform, and, on being warmly called by the audience, he was gracefully introduced by the Pre- sident, and then proceeded to address the Convention for about one hour. He reviewed the state of parties in the country, the measures advocated by each, and dwelt considerably on the vices of Mr. Van Buren's administration, to which he attributed much of the distress then prevailing in the industrial pursuits of the people in all quarters of the Union. His speech was logical in its arrangement, delivered with animated self-possession, and had a strong effect on those who heard it. He received every attention from the committee of arrangements, and others who sought an introduction to him, which could have gratified a visitor from another State.
In 1841, Col. Foster was again elected a Representative in Con- gress, and served out his term with his accustomed ability. This was his last public service. In the mean time, though somewhat late in life, he had entered into matrimonial relations with Miss Gardner, of Augusta, a lady of great worth and intelligence, who contributed much to his happiness. Had he married a lady of her qualities at an earlier period, she might have exercised a gentle, restraining influence over his habits, and prevented that excess in the use of wine which was the only source of regret to his friends in his latter years. The author makes this allusion from no unkindness to the memory of a personal friend whom he highly valued, but with the design that the only blemish in the character of this talented and accomplished gentleman may serve as a caution to aspiring young men, who may feel justly proud if they can equal him in other respects.
In this connection the author makes free to quote from a letter which he received from that venerable and useful man, Rev. Lovick Pierce, of Columbus, to whom he had written on the subject :-
T. F. Foster was my brother-in-law; lived in my family more than twenty years; was one of the most companionable men ever made; had a good deal of pleasant humor about him. If any one living was examined with intimate knowledge of Col. Foster's ability and success at the bar, he would furnish a beautiful item in your proposed work. His cotem- poraries are nearly all, like himself, dead. Col. Y. P. King, of Greensboro, might aid in his case: they were raised together. As a lawyer, Col. Foster ought to be put a No. 1 man; and as a good man in all his natural
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developments he was an exception. High life with great men led him to love wine to his injury.
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