The Middle Period 1817-1858 Part 18

NULLIFICATION

The Indian Question in Georgia--The Indian Springs Convention--The Repudiation of the Agreement--The Controversy between the Administration and Georgia--The Creek Convention of 1826--The Governor of Georgia Repudiates the Convention of 1826--The President Submits the Matter to Congress--Georgia and the Cherokees--Jackson and the Indian Question--Indian Policy before Jackson--The Case of the Cherokee Nation--The Case of Worcester against Georgia--The Failure of the President to Execute the Decision in the Worcester Case--Jackson and Calhoun--The Call of the Convention of 1832 in South Carolina--The Nullification Ordinance--The Addresses Issued by the Convention--The Acts of the Legislature of South Carolina for the Execution of the Ordinance--The Meaning of Nullification as Understood by the Nullifiers--Jackson's View of Nullification--The President's Proclamation of December 10th--The President's Military Preparations--The President's Instructions to the Customs Officers in South Carolina--The Popular Approval of the President's Course--The Verplanck Tariff Bill--Governor Hayne's Counter-Proclamation--The President's Message of January 16th, 1833--Calhoun's Explanations in the Senate--The "Force Bill"--The Postponement of the Execution of Nullification--The Compromise Tariff--Mr. Calhoun's Support of Mr.

Clay's Bill--The Opposition to the Bill--Pa.s.sage of the "Force Bill"

by the Senate--Pa.s.sage of the Compromise Tariff Bill and the "Force Bill" by Congress--The Nullification Ordinance Withdrawn.

[Sidenote: The Indian question in Georgia.]

Before nullification was resolved upon in South Carolina, something like it had been applied in Georgia. {211} In the year 1802 Georgia formally ceded the lands claimed by the Commonwealth west of the Chattahoochee River to the United States for the sum of one million two hundred and fifty thousand dollars, and upon the condition that the United States Government would, at its own expense, extinguish the Indian claims to any lands in Georgia so soon as this could be done peacefully and upon reasonable terms.

Between 1802 and 1820 the Government made some advance in the discharge of this obligation. By this latter date, however, designing white men had joined with the Indian tribes located within the Commonwealth, and were seeking to organize an Indian State for the purposes of their own political ambition, and many well disposed white persons were aiding them from humanitarian motives. The Georgians even accused the Government of doing things that would contribute to the same result. The Georgians were forced to face a very serious question, the question of an Indian State, controlled chiefly by white adventurers and sentimentalists, within the legal limits of the Commonwealth.

Under this pressure the Georgians reviewed the whole question of Indian organization, and rights to territory. They advanced the propositions, that the Indian tribal organizations were not States and could not, therefore, exercise dominion, and give t.i.tle to real property; that the Indians living within the legal limits of the Commonwealth were subject to its jurisdiction in the same manner as other persons, and to the same extent; that the original t.i.tle to all land within the limits of Georgia was in the Commonwealth, and every valid t.i.tle must be derived from the Commonwealth; that the claim of the Indians to the lands on which the tribes lived was simply an inc.u.mbrance upon Georgia's {212} t.i.tle, an inc.u.mbrance which the general Government was obligated to remove; and that, after the Government should discharge this duty, Georgia's t.i.tle would be perfect, without any formal transfer of these lands to Georgia by the Government.

[Sidenote: The demand of Georgia for the extinguishment of the Indian claims.]

[Sidenote: The Indian Springs Convention.]

In 1819 the legislature of Georgia memorialized President Monroe to hasten the work of the Government in extinguishing the Indian claims.

In the year 1824 the Creek chiefs in council resolved that not a foot of the lands claimed by the Creeks should be relinquished.

Nevertheless, President Monroe's administration succeeded, in February of 1825, in negotiating an agreement with certain of the Creek chieftains according to which they relinquished to the United States the Creek claims to all lands lying within the limits of Georgia, and also to lands lying to the northwest and to the west of the Commonwealth. This agreement was ratified by the Senate of the United States in March of the same year.

[Sidenote: The repudiation of the agreement.]

The Governor of Georgia, Mr. Troup, immediately despatched the public surveyors to lay out the relinquished territory. They were resisted by the Indians, who declared their repudiation of the agreement of February 12th with the general Government.

At the same moment a number of the chiefs were representing to the new President, Mr. Adams, that that agreement was a fraud upon the Indians, and that the chiefs who signed were not properly authorized to do so. The agent of the Government to the Creeks supported their protest, despite the fact that he was present at the execution of the agreement. Under these circ.u.mstances the Secretary of War, Mr. James Barbour, wrote to Governor Troup that the President {213} expected him to abandon the survey until it could be made in accordance with the provisions of the agreement which allowed the Indians until September 1st, 1826, for their removal, and guaranteed them against all encroachments before that date.

[Sidenote: The Controversy between the Administration and Georgia.]

The communication from Secretary Barbour gave rise to a spirited controversy between the Governor of Georgia and himself, in which the Governor a.s.sumed an extreme "States' rights" att.i.tude in defence of his position. He claimed that Georgia's jurisdiction over, and t.i.tle to, the lands formally relinquished by the Creeks to the United States were not originated by this act, but were only relieved by it of an inc.u.mbrance, and that, therefore, no additional act was necessary on the part of the Government to authorize Georgia to take possession and exercise jurisdiction. He declared that he would not postpone the survey, and advised the legislature of the Commonwealth to defend Georgia's rights by armed resistance, which recommendation the legislature seemed about to approve.

The President sent General Gaines to the scene of action, and authorized him to place the militia of the Commonwealths adjoining Georgia in readiness for service. The Governor was highly excited by the approach of the military power of the United States, and wrote to Secretary Barbour virtually accusing the Government of inciting the Indians to violence against Georgia and her people, and demanding to be informed of the purposes of the Administration. Mr. Barbour replied that the President had decided that the survey should not proceed, and had sent General Gaines with orders to prevent it, with military power if necessary. The Governor now turned to the President himself, with both protest and threat, but the President remained {214} firm, and the Governor was obliged to yield for the moment.

[Sidenote: The Creek Convention of 1826.]

The Administration was apparently convinced that the agreement of 1825 was not fairly obtained, and, in January of 1826, entered into another agreement with the Creeks, which, while recognizing the nullity of the agreement of 1825, secured the extinguishment of their claims to all lands in Georgia lying east of the Chattahoochee, and to a considerable tract north and west of this river. The Administration a.s.serted that all the Creek lands lying within the limits of Georgia were secured. Senator Berrien of Georgia, who represented the interests of his Commonwealth when the agreement came before the Senate for ratification, said, on the contrary, that it failed by a million of acres of having done so.

[Sidenote: The Governor of Georgia repudiates the Convention of 1826.]

Governor Troup declared that the general Government could not by an agreement with the Creeks rob Georgia of vested rights, which had been, once for all, perfected by the agreement of 1825. He ordered the public surveyors to include in their surveys the lands claimed by Georgia west of the line designated in the agreement of 1826. The Indians resisted them, and appealed to the President to protect their rights as recognized by the latter agreement. The President ordered the United States District Attorney and Marshal for Georgia to arrest any one caught in the act of surveying the lands west of the line fixed by the agreement of 1826. The Governor was informed of this order, and was given to understand that the President would uphold the agreement of 1826 by any and all power necessary. The Governor, however, defied the Administration, ordered the law officers of the Commonwealth to effect, by any means necessary, the release of the arrested surveyors, and to {215} secure the arrest and trial of those persons who had taken or held them in custody, ordered the commanders of the militia of the Commonwealth to hold their forces in readiness to resist the threatened invasion by the military power of the United States, and sent a message to the legislature informing that body of what he had done in the premises. In this message he took the ground that questions of jurisdiction--he called them questions of sovereignty--between the general Government and the Commonwealths could not be determined by the judicial power of that Government, but must be settled by agreement between the two parties.

[Sidenote: The President submits the matter to Congress.]

President Adams was deeply impressed with the seriousness of the situation. He felt that he must uphold the dignity and authority of the Government at all hazards and by all the means intrusted to him by the Const.i.tution and the laws; and yet he was unwilling to provoke civil war, if it could be avoided, or to enter upon the work of coercion without the practically unanimous support of the country. He resolved, therefore, to lay the matter before Congress, and await its action. Congress did practically nothing, and the President was convinced that the nation was not prepared to have the Indian problem fought out under the issue of "States' rights" versus the Union.

[Sidenote: Georgia and the Cherokees.]

Encouraged by this success the Georgians now resolved to subject the Cherokees living within the limits of the Commonwealth to the laws thereof or force them to emigrate. In December of 1827, the legislature pa.s.sed a law extending the criminal jurisdiction of the Commonwealth over a part of the lands occupied by the Cherokees. The Indians appealed to the President. The appeal came before the President during the last month of his official term, and he {216} discreetly and courteously resolved not to embarra.s.s the new Administration by committing the Government to any position in the question.

[Sidenote: Jackson and the Indian question.]

President Jackson was even less inclined than his predecessor to allow the Indian question to resolve itself into the question of the const.i.tutional spheres of authority between the Union and the Commonwealths. Moreover, he believed that Georgia was in the right in the Indian question. He replied to the Cherokee memorial that he knew of no alternative to submission to the jurisdiction of Georgia except emigration beyond the limits of the Commonwealth. His view was that the general Government could not hinder a Commonwealth from exercising jurisdiction over every person within its limits, except in such cases as were reserved from that jurisdiction by the Const.i.tution of the United States, and could not lend its countenance to the creation of a new political organization within these limits against the will of the Commonwealth. This was the latter part of April, 1829. The Cherokees, influenced largely by the whites among them, resented the President's advice, and the council of chiefs resolved that no lands claimed by the Cherokees should be relinquished, except by consent of the tribe or tribes, under penalty of death for violation of their resolve, and rejected the overtures of the Government for the relinquishment of their claims.

In his message of December 8th, 1829, President Jackson devoted much s.p.a.ce to the Indian problem in general, and to it, as it affected Georgia and Alabama, in particular. He repeated to Congress the views which he had expressed to the Cherokees themselves, which were, as we have seen, that the general Government could not lend its countenance to the creation of an {217} Indian State within the confines of any Commonwealth of the Union against the will of that Commonwealth, and that the only alternative to subjection to the laws of the Commonwealth on the part of the Indians was emigration beyond the limits of the same. He also suggested the setting apart of a district in the far West for the permanent home of such Indian tribes as should prefer to continue in tribal organization, independent of the jurisdiction of any Commonwealth of the Union, where they might work out their own customs unmolested.

This was the democratic, "States' rights" view of the subject. It denied all exemptions from the supremacy of the laws, and it also denied to the general Government any power to restrain a Commonwealth from the a.s.sertion of its jurisdiction over all persons within its legal limits, except in cases specially reserved by the Const.i.tution.

[Sidenote: Indian policy before Jackson.]

The Administration of Mr. Adams, and the Administrations of all of his predecessors, had apparently inclined to the view that the Indian tribes were already states, having dominion over, and property in, the territory of the continent when the Europeans arrived upon it; that the t.i.tles of the European states to it were only valid as against each other, and meant, in relation to the aborigines, only a right of pre-emption; and that after the Const.i.tution was established no government except the general Government of the United States could have anything to do with them.

This was a crude and an impracticable view of the relation. It contained more of sentiment and humanitarianism than of common sense and inductive wisdom. The theory broke down completely in the Georgia case, and could not be re-enlivened for practical purposes {218} even by judicial decisions. The necessities of civilization have forced the country to follow the course outlined by President Jackson, and that is certainly good evidence of its correctness.

The Georgians must have been encouraged by his message, for the legislature of Georgia immediately pa.s.sed an act connecting the Cherokee lands with the counties which they adjoined, and imposing the full jurisdiction of the Commonwealth upon all persons living or being within the same.

[Sidenote: The case of the Cherokee Nation.]

The Indians then caused an original bill to be filed in the Supreme Court of the United States against Georgia, together with a supplemental bill praying for a temporary injunction to restrain the Commonwealth from enforcing its jurisdiction, and for the issuing of a subpoena to Georgia to appear before the Court. The Court issued its summons, but the Commonwealth made no answer, and the Court decided, in its January term of 1831, that the Cherokee nation was not a "State" in the sense of that provision of the Const.i.tution which designates the parties qualified to sue in the United States Courts.

This decision was p.r.o.nounced immediately after the execution of the Cherokee Ta.s.sells by the Georgia authorities, in defiance of a writ of error addressed to the Commonwealth by a United States court, requiring the Commonwealth to show cause why he should not be discharged from custody. It is probable that the Supreme Court was impressed by this demonstration of the impotence of the judiciary to interfere successfully with the political policy of a Commonwealth, even in behalf of personal liberty.

[Sidenote: The case of Worcester against Georgia.]

A year later the Court took a more national view and stand. A Presbyterian missionary to the Cherokees, the Rev. Samuel A.

Worcester, of Vermont, had {219} violated the Georgia statute, which made it a criminal offence to reside among the Cherokees after March 1st, 1831, without a license from the Governor, and without having taken an oath to support and defend the laws of the Commonwealth. He was indicted and tried by a Georgia court, found guilty, and condemned to imprisonment in the penitentiary of the Commonwealth. A writ of error was issued by one of the Justices of the Supreme Court of the United States, requiring the Commonwealth of Georgia to show cause why the prisoner should not be discharged. The writ was served on the Governor and the Attorney-General of the Commonwealth. The only answer which the Commonwealth gave to the summons was the sending up of the record of the case, signed by the clerk of the court which p.r.o.nounced the judgment, and authenticated by the seal of the court. The judge of the Georgia court did not sign the record. Nevertheless the Supreme Court of the United States decided that the record of the Georgia court was properly before it, and the Chief Justice proceeded to make, in the Court's opinion of the case, an exhaustive review of the Indian relations of the United States, in accord with the principles of the Adams Administration, and to p.r.o.nounce the statute of Georgia, a.s.serting the jurisdiction of the Commonwealth over the Cherokee lands and over all persons residing or being on them, unconst.i.tutional, null, and void, and the arrest, trial, and sentence of Mr. Worcester under the same to have been, therefore, without warrant of law.

But the Georgia authorities paid no attention to the decision. They did not liberate the prisoner or accord him a new trial. Later on, the Governor of the Commonwealth pardoned him as his own act of grace.

[Sidenote: The failure of the President to execute the decision in the Worcester case.]

It was certainly the duty of the President of the {220} United States to have executed this decision of the Court with all the power necessary for the purpose which the Const.i.tution conferred upon him.

He did not do it. It is said on very good authority that he intimated, at least, that he would not do it. The Commonwealth simply defied the Court successfully, and the President and Congress acquiesced in the result. The President agreed in opinion with the Georgians upon the subject, and the doctrine which here triumphed was one more plank in the platform of the Jacksonian democracy, a real "States' rights"

principle.

[Sidenote: Jackson and Calhoun.]

There is no doubt that the South Carolinians were encouraged by the course of events in Georgia to believe that they would have something like the same experiences and results in their contest with the Government. In this they do not seem to have fully realized the fact that President Jackson did not agree with them in their view of the unconst.i.tutionality of the tariff, as he agreed with the Georgians in their view of the Indian question. Moreover, there was a personal element in the controversy which they do not seem to have appreciated at all. Jackson had, down to 1830, supposed that Mr. Crawford was the member of the Cabinet of Mr. Monroe, in 1819, who wanted to have him arrested and tried by a court-martial for disobeying orders, or acting in excess of orders, during the Seminole War, and that Mr. Calhoun was his defender. Jackson's hatred of Crawford had been intense during these years for this reason. In 1830 Governor Forsyth, of Georgia, revealed to Jackson the truth in regard to this matter, which was that Calhoun was for arraigning him and Adams was his defender. Jackson immediately demanded an explanation of Calhoun, but the reply did not at all satisfy him, and the hostility which he had {221} felt for Crawford was now turned with redoubled force against Calhoun. Calhoun was now regarded by Jackson as a traitor to Jackson, and that meant, in Jackson's mind, that he was a traitor to his country. Any movement against the Government or the laws of the United States headed by Calhoun would be considered by Jackson as rebellion, most surely so while Jackson was President.

[Sidenote: The call of the Convention of 1832 in South Carolina.]

Following the principles developed in Mr. Calhoun's letter of August 28th, 1832, Governor Hamilton issued a call for a special session of the legislature of South Carolina, in the autumn of 1832, for the purpose of effecting through it the a.s.sembly of the convention of the Commonwealth. The party in favor of nullification had at last secured both branches of the legislature, and on October 24th, 1832, the a.s.sembled legislature voted to issue the call for the convention, and appointed November 19th as the day upon which it should meet.

[Sidenote: The work of the Nullification Convention.]

The convention a.s.sembled at the time designated, elected Governor Hamilton as its chairman, and appointed a committee of twenty-one members to consider the situation and report a proposition to meet it.

In due time this committee made its report to the convention, in which was contained, first, a review of the development of the tariff from a revenue measure to a measure for the protection of manufactures, of the ten years of fruitless struggle in Congress by the South against the oppression inflicted by the protective system upon that section, and of the theories advanced by the fathers of the Republic for meeting, in last instance, such a condition of affairs; and, second, the famous Ordinance of Nullification as the remedy of last resort.

The convention voted to receive the report and to adopt its recommendations. {222} On November 24th the convention pa.s.sed, in solemn form, the Ordinance of Nullification of the existing tariff laws of the United States.

[Sidenote: The Nullification Ordinance.]