366 THE SUPREME COURT AND THE CASE OF CORN TASSEL. the Indian country after March 31, 1831, without a license from the State would be subject to the same penalty.* Meanwhile the Cherokees had retained William Wirt to look after their interests, and were advised that the Georgia law was unconstitutional.† The Cherokees, therefore, requested Wirt to secure from the Supreme Court, if possible, an injunction restraining Georgia from executing the obnoxious laws within their territory. The matter was decided in a rather unexpected manner. An Indian, named Corn Tassel, had killed a fellow Cherokee, was arrested, tried, convicted and sentenced in the superior court of Hall County. A writ was sworn out in the Supreme Court directing the State of Georgia to show cause why the sentence against Corn Tassel should not be corrected. ‡ This angered the governor, who declared, when submitting the writ to the legislature, that he would resist any attempt to execute it, saying: "If the judicial powers thus attempted to be exercised by the courts of the United States be submitted to, or sustained, it must eventuate in the utter annihilation of the State governments." The legislature replied that the action of the chief justice was a flagrant violation of Georgia's rights; that they Niles' Register, vol. xxxix., p. 229. For Wirt's opinion see Niles' Register, vol. xxxix., pp. 81-88. Von Holst, Constitutional and Political History, vol. i., p. 454; Schouler, United States, vol. iii., p. 482. Niles' Register, vol. xxxix., p. 338. would never compromise the sovereignty of the State by becoming a party to the case, and that the governor should acquaint the sheriff of Hall County with these resolutions, so that the execution of the law would be ensured in the case of Corn Tassel.* This injunction was strictly obeyed, the writ was ignored, and on the appointed day (December 28, 1830) Corn Tassel was hung.t March 5, 1831, had been set for the hearing of the case- the Cherokee Nation vs. Georgia, but the argument was made a week later. Georgia sent no counsel, but the Indians were represented by William Wirt and John Sargeant. The counsel for the Indians filed a supplementary bill citing those acts of Georgia not detailed in their first bill, which were claimed to be contrary to law. They asserted that Georgia had denied the jurisdiction of the Supreme Court in the case of Corn Tassel, had enacted a law for surveying the Cherokee lands, had forbidden white persons to live within the bounds of the Cherokee country, had authorized the governor to take possession of the gold and silver mines in the Indian country, and had commanded him to enforce the laws, which he was now doing. They stated that the Cherokee nation was a foreign nation and competent to sue in * Niles' Register, vol. xxxix., p. 338. † Ibid, p. 553; Sumner, Life of Jackson, pp. 180-181; McMaster, vol. vi., pp. 46-47. Sumner gives the Indian's name of George Tassel. Von Holst says George Tassells. ARREST AND TRIAL OF THE MISSIONARIES. the Supreme Court, and that they had made out such a case as would warrant the Court in granting them relief.* The Court, however, took a different view of the matter. Justice Marshall said: * "It may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can with strict courtesy be denominated foreign nations. They may more correctly propose to be denominated domestic, dependent nations. Their relation to the United States resembles that of a ward to his guardian. The court has bestowed its best attention on this occasion, and, after mature deliberation, the majority is of the opinion that the Indian tribe or nation within the United States is not a foreign State in the sense of the Constitution, and cannot maintain an action in the courts of the United States." The injunction was therefore refused, and Georgia had the Cherokees completely at her mercy. The act passed by Georgia on December 22, 1830, provided that after March 1, 1831, all white persons living in the Cherokee country must obtain a license and take the oath of allegiance to Georgia or be imprisoned at hard labor for four years. Numbers of persons remained, however, and were promptly arrested by the Georgia troops, but a writ of habeas corpus was sued out directing the commander of the Georgia troops to show cause for their arrest and detention. case was tried in March of 1831 before the Gwinette superior court. The * For Wirt's argument see Niles' Register, vol. xxxix., pp. 81–88, vol. xl., pp. 67–68. † Peters, Supreme Court Reports, vol. v., pp. 1– 80. See also Niles' Register, vol. xl., pp. 156–157. Sumner, Life of Jackson, p. 181. Niles' Register, vol. xl., pp. 95-96. 367 Counsel for the defence argued that the law was repugnant to both the National and State constitutions-to the former because no State could pass an ex post facto law; because the citizens of each State were entitled to all the privileges and immunities of the citizens of the several States; because without the consent of Congress no State might maintain troops in times of peace; and because the people possessed the right of security in their persons, houses, papers, and effects from unreasonable searches and seizures. The law was contrary to the State constitution, because it required a test oath. The judge overruled each objection, however, and four of the prisoners were held; but two were afterwards discharged because of their being missionaries and one of them also a postmaster, which made them authorized agents of the United States to whom the law did not apply." The governor of the State was much incensed by the decision of the judge, but his anger was appeased when the Federal authorities came to his aid by removing the postmaster and by stating that missionaries employed among the Cherokees by the American Board of Foreign Missions were not agents of the United States. In May of 1831, therefore, the two who had been released were ordered to quit the Cherokee country within ten * McMaster, vol. vi., p. 49. For the opinion of the court see Niles' Register, vol. xl., pp. 244248. 368 FINAL REMOVAL OF THE CHEROKEES. days. The wife of one, however, was an invalid and it was impossible for him to obey. This not being considered an excuse, he was again arrested and, in company with another prisoner, was confined in jail. Nine others who hastened to their assistance were arrested also, and the trial of the eleven men was heard before Judge Clayton and a jury. Counsel for the defence declared the law unconstitutional, but the judge dissented and bade the jury consider nothing but the guilt or innocence of the prisoners under the law as it existed. Hence the jury could render only a verdict of guilty, and a sentence of four years' imprisonment was imposed.* Having vindicated the majesty of the law, the governor sought to mitigate the severity of the sentence by offering to pardon the eleven men convicted, if they would give assurance never again to violate the law. Nine of the prisoners did so, but two flatly refused and went to the penitentiary. These two then appealed to the United States Supreme Court and once more Georgia was summoned to appear, but she failed to do so. This time, however, the decision was against her, for the Court, * Sumner, Life of Jackson, pp. 181-182; Niles' Register, vol. xli., pp. 174-176. in March of 1832, declared her law of December 22, 1830, to be unconstitutional, and the State court was directed to reverse its judgment and free the prisoners.* This the Georgia judge refused to do,t though after a little more than a year of confinement the prisoners were pardoned.‡ The fate of the Cherokees was now sealed. The nation was split in twain by rival factions, those who were willing to migrate being led by John Ringe, while those who determined to stay were led by John Ross. Finally, in 1835, a treaty was made with the Ringe party by which the remaining Cherokee country was ceded, in return for which the Indians received $5,000,000 and a tract of land beyond the Mississippi.|| The Ross faction still refused to go, but in May of 1838, General Scott appeared and directed the Indians to be ready within a month. In December of that year the last of the Cherokees began their march for Indian territory.§ * Von Holst, Constitutional and Political History, vol. i., p. 457; Niles' Register, vol. xlii., pp. 24, 40-56. For the decision see Peters, Supreme Court Reports, vol. vi., pp. 521–579. Niles' Register, vol. xlii., p. 78. Sumner, Life of Jackson, p. 182; Niles' Regis ter, xliv., pp. 359-360. || MacDonald, Jacksonian Democracy, p. 179. § McMaster, vol. vi., pp. 48-51; Sumner, Life of Jackson, pp. 182-183. SPEECHES OF DRAYTON AND HAYNE 369 CHAPTER III. 1830-1832. NULLIFICATION, THE TARIFF AND THE BANK. The attitude of other Drayton's and Hayne's nullification speeches - Action of the South Carolina legislature When Congress adjourned in the summer of 1830 the members departed for their homes to engage in the coming election of representatives for the Twenty-Second Congress. Public dinners were given to candidates or distinguished men at which topics of the hour were discussed in toasts and speeches. The most noteworthy of these dinners was given to Robert Y. Hayne and William Drayton at Charleston. The latter was opposed to the tariff and to internal improvements, but could not be ranked as a nullifier, for he had stated that, with the exception of the tariff, nothing was more to be deplored than the separation of South Carolina from the Union. He said he could see no great difference between the abrogation of a law of Congress by a State and the withdrawal of that State from the Union."'* "I am not an advocate of passive obedience and non-resistance. A crisis might * arise when the bonds of the union ought to be broken. The right of the State to secede from the union, I unqualifiedly concede; but so long as she belongs to it, if she be not bound by its laws, the monstrous anomalies would exist of * Hunt, Life of Calhoun, p. 139. The tariff of 1832 * a government whose acts were not obligatory upon its citizens and of a state constituting one of the members of the union whilst denying the authority of its laws. I would not recommend silence and inactivity amidst the wrongs with which we are afflicted. What can constitutionally be done by the legis. lature ought to be done by it [but] should the law we complain of remain unrepealed upon our statute book, we should then enquire whether a recurrence to the remedy would not be worse than the malady which it professes to For my own part, I feel no hesitation in avowing that I should regard the separation of South Carolina from the union as incalculably more to be deplored than the existence of the law which we condemn.” * cure. * Hayne was troubled by no such scruples. He re-asserted the doctrines expressed by him on the floor of Congress and said that in case of a palpable, deliberate, and dangerous abuse of power by the Federal government contrary to the terms of the compact between the States, the States had the right to interfere to arrest the progress of the evil. It was simply necessary to decide upon the mode of redress to be adopted, if a case arose to justify the application of his principles.† The entire speech is in Niles' Register, vol. xxxviii., pp. 375–376. † Ibid, pp. 376-380. 370 ACTION OF THE SOUTH CAROLINA LEGISLATURE. When the election drew near, the question of the expediency of secession seemed to be uppermost in the discussions by the candidates. The right to quit the Union and the necessity of doing so were much debated by the voters. It was said that if the people of the State would annul the tariff laws and declare the Union dissolved, unless the tariff was repealed before March 1, 1831, or at least reduced to the rates of 1816, the system of robbery and oppression would at once be stopped. There was no question as to her right to secede, and the only question was whether the oppressions heaped upon her were sufficient to justify such a step.* A meeting of citizens at Columbia urged that a State convention be held to take the matter under consideration.t It required a two-thirds vote in each branch of the legislature to call a convention. At the election the nullifiers sent 11 out of 16 candidates to the legislature, ‡ but before the legislature met, it was decided to force Jackson to take his stand upon one side or the other. Joel R. Poinsett undertook to persuade the President to declare himself and prepared two letters with this object in view. One of these was sent on October 23, 1830, directly to the President, while the other was sent to a gentleman in Baltimore, who, as requested, sent it to another friend, who forwarded it to * Niles' Register, vol. xxxviii., p. 387. Ibid, vol. xxxix., pp. 3, 98. Ibid, p. 138. Jackson as a 66 copy of a letter from a gentleman in Charleston." On the 26th, Jackson, in answering these letters, said that he supposed everyone knew that he was opposed to nullification, and that his toast at the Jefferson dinner was sufficient evidence of this fact. Poinsett and his friends therefore awaited the approaching session of the legislature with many misgivings. The nullifiers began the attack by refusing to reëlect William Smith to the United States Senate, because he had opposed the calling of the convention.* The State Senate Committee on Federal Relations reported a bill stating that the Federal Government had assumed and exercised powers not granted by the Constitution; that the legislature of the State had several times declared these laws to be an infringement on the rights of the States; and that it was the duty of the people to assemble in the State convention to determine upon the best manner of redress. The corresponding committee of the House found that the tariff acts were highly dangerous and oppressive violations of the Constitutional compact, and as no further redress of grievances could be expected, the people should assemble to deliberate on these matters. In the Senate, however, the anti-nullifiers succeeded in defeating the bill calling for the convention,† but a set of resolutions, com * Niles' Register, pp. 233, 243-248, 250. Jervey, Robert Y. Hayne and His Times, pp. 284-285. |