Carolinian's attempt at practical Nullification. "The Tariff," he wrote in 1834, to an intimate friend in Georgia, "was but a pretext. The next will be the Slavery or Negro question."

But, while Nullification was thus sternly crushed out in South Carolina, it was simultaneously allowed a complete triumph in the adjoining State of Georgia. The circumstances were briefly as follows:

The once powerful and warlike Aboriginal tribes known to us as "Cherokees" and "Creeks," originally possessed respectively large territories, which are now included within the States of North Carolina, Georgia, Tennessee, and Alabama. With those tribes, treaties were from time to time made by our Government, whereof each had for its main object the transfer, for a specified consideration, of lands by the Indians to the United States. One of the conditions on which we sought and obtained those lands was thus succinctly expressed in the treaty with the Cherokees negotiated on the bank of the Holston, in 1791, under the Presidency of Washington:

"ARTICLE 7. The United States solemnly GUARANTY to the Cherokee Nation all their lands not hereby ceded."

The stipulations of this treaty were recognized, and their validity confirmed by the treaty of 1794, nego

25 The following is that portion of the Treaty of Ghent relating to the Indians:

"Article the Ninth. The United States of America engage to put an end, immediately after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom they may be at war at the time of such ratification; and forthwith to restore to such tribes or nations, respectively, all

War, "being authorized thereto by the President of the United States." A further treaty, negotiated in 1798, under John Adams, recognized and ratified afresh all the obligations incurred, the guaranties given, by former treaties. Such stipulations continued to be made, at least down to 1817, when one was negotiated on our part by Andrew Jackson and others, again renewing and confirming to the Cherokees all former stipulations and guaranties.

Still more: when, in 1814, the Treaty of Ghent was negotiated, whereby the war of 1812 with Great Britain was terminated, the British commissioners long and fairly insisted on including her Aboriginal allies in that war in the provisions and stipulations of the treaty, especially that which exacted a mutual restoration of all territories or places taken by one party from the other during the preceding contest. Our commissioners naturally demurred to this, preferring to insert an article which set forth the humane and benevolent principles whereby (as it alleged) our Government regulates its conduct toward the Indian tribes within our borders. 25 And Mr. Clay, one of the negotiators of that treaty, declared, in his speech on the Cherokee Grievances in 1835, that the British commissioners would never have been satisfied with this, if they had understood that those tribes

the possessions, rights, and privileges, which they may have enjoyed or been entitled to in one thousand eight hundred and eleven, previous to such hostilities. Provided always, That such tribes or nations shall agree to desist from all hostilities against the United States of America, their citizens and subjects, upon the ratification of the present treaty being notified to such tribes or nations, and shall so desist accordingly."

held their rights and possessions guaranteed to them by Federal treaties subject to the good-will and pleasure of the several States, or any of them. In 1802, Georgia ceded, on certain conditions, her,western territory, now composing the States of Alabama and Mississippi, to the Union. Among these conditions, our Government undertook to extinguish the Indian title to all lands within the boundaries of the State as thereby constituted, so soon as this could be effected "peaceably and on reasonable terms." 26 And this object was urgently, perseveringly, and not always honorably, pursued. In February, 1825, just as Mr. Monroe's Administration was passing away, certain commissioners, selected by Mr. Calhoun, then Secretary of War, attempted to obtain from the Creeks, at a council held at Indian Springs, a cession of their lands; but were baffled by the stern resolve of chiefs and people the tribe. having previously prescribed the penalty of death for any one who should make such sale. Thus defeated, the commissioners resorted to a too common practice: they bribed an inconsiderable minority of the Creeks, including one or two alleged chiefs, to give their formal assent to such an instrument as they desired. This sham treaty was hurried to Washington, and forced through the expiring Senate on the last day of the session, before its true character

26 The following is the entire article:

"Fourthly, That the United States shall, at their own expense, extinguish, for the use of Georgia, as early as the same can be peaceably obtained, on reasonable terms, the Indian title to the country of Talassee, to the lands left out by the line drawn with the Creeks, in the year one thousand seven hundred and ninety-eight, which had been previously granted by the State of

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could be generally known. The Creeks, upon learning that such a pretended treaty had been made, held a general council, wherein it was formally disavowed and denounced, and a party was at once dispatched to the home of McIntosh, a chief who had signed the fraud, to execute the sentence of the law upon him. McIntosh and another principal signer were shot dead on sight, and due notice given that the pretended treaty was utterly repudiated.

Governor Troup, of Georgia, of course assumed the validity of the instrument, and prepared to take forcible possession of the Creek lands. The Creeks appealed to the Government, demanding the enforcement of the treaties whereby they were guaranteed protection in the peaceable enjoyment of their clearly defined territorial possessions. Mr. Adams, who had now succeeded to the Presidency, looked fully into the matter, saw that their claim was just, and assured them that they should be defended. Governor Troup threatened to employ force; Mr. Adams did employ it. He ordered General Gaines, with a body of regulars, to the scene of apprehended conflict, and gave Georgia fair notice that she must behave herself. The Governor talked loudly, but did not see fit to proceed from words to blows. The Indian Springs fraud proved abortive; but Georgia and her backers scored up a heavy account against

Georgia, both which tracts had formally been yielded by the Indians; and to the lands within the forks of the Oconee and Ocmulgee rivers; for which several objects, the President of the United States has directed that a treaty should be immediately held with the Creeks; and that the United States shall, in the same manner, also extinguish the Indian title to all other lands within the State of Georgia."-American State Papers, vol. xvi., p. 114.

General Jackson was chosen President in 1828, receiving more than two-thirds of the Electoral votes, including those of all the Slave States but Delaware and a part of Maryland. In Georgia, there were two Jackson Electoral tickets run, but none for Adams. And the first Annual Message of the new President gave the Indians due notice that Georgia had not so voted from blind impulse that their dearest rights, their most cherished possessions, were among her "spoils of victory." In this Message, the solemn obligations which our Government had volunteered to assume, in treaty after treaty with the Creeks and Cherokees, were utterly ignored, and the rights and possessions of the Indians dealt with precisely as if no such treaties had ever existed! Georgia had herself, through her citizens, participated in negotiating, and, through her Senators, united in ratifying those treaties; yet not only was she held at liberty to disobey and trample on them, but the United States was regarded as equally absolved, by the convenient fiction of State Sovereignty, from all liability to maintain and enforce them! No one could deny that we had solemnly engaged, by repeated treaties, to protect the Indians in the undisturbed use and enjoyment forever of the lands which we had admitted to be, and marked out as, theirs. No one could deny that we had obtained large cessions of valuable lands by these treaties. No one doubted that Georgia had urged us to make these trea

the lands thus obtained by the Union, and passed directly over to her: but then, Georgia was a sovereign State, and entitled to do as she liked with all the lands within her borders, and all the people living thereon, no matter if in flagrant violation of the laws. and treaties of the United States! And the new President did not scruple to assert and reiterate the untruth that the Creeks and Cherokees respectively were attempting to "erect an independent government within the limits of Georgia and Alabama, ringing all possible. changes on the falsehood, and gravely quoting from the Constitution that "No new State shall be formed or erected within the limits of any other State," as precluding the maintenance by the Creeks and Cherokees of their governments in territories which they had possessed and governed long before Georgia had been colonized, or the name Alabama invented.

"This emigration should be voluntary; for it would be as cruel as unjust to compel the Aborigines to abandon the graves of their fathers, and seek a home in a distant land. But they should be distinctly informed that, if they remain within the limits of the States, they must be subject to their laws. In return for their obedience, as individuals, they will, without a doubt, be protected in the enjoyment of those possessions which they have improved by their industry. But it seems to me visionary to suppose that, in this state of things, claims can be allowed on

tracts of country on which they have neither dwelt nor made improvements, merely because they have seen them from the mountain, or passed them in the chase. Submitting to the laws of the States, and receiving, like other citizens, protection in their persons and property, they will ere long become merged in the mass of our population."

How "voluntary" their emigration was to be, and what sort of "protection in their persons and property" they were likely to receive in case they refused to "abandon the graves of their fathers, and seek a home in a distant land," let the laws which Georgia proceeded to enact bear witness. Grown weary of awaiting the operation of the methods whereby she had already secured, at no cost to herself, the gradual acquisition of the greater part of the Indian lands within her borders when she acceded to the Union, that State passed acts abolishing the government of the Cherokees, and reducing them at a word to the condition of unprotected vassals. Their lands were thereupon divided into counties, surveyed, and ordered.to be distributed by lottery among the white citizens of the State,

right of possession during the good pleasure of the State Legislature. The Indians, whose government was thus abolished, were allowed no voice in that to which they were arbitrarily subjected; they could not even give testimony in a Georgia court, though denied a resort to any other. The fortunate drawer of Cherokee lands in the Georgia State lottery was entitled to call upon the Governor to put him in summary possession, expelling any adverse [Indian] claimant. If there were two or more antagonist white claimants, their respective claims were to be deliberately adjudicated by the courts, according to the dictates of ordinary jurisprudence. If any one sought to legally hold or recover lands against a claimant under this rule, he must make express affidavit that he

was not liable to be dispossessed of said land by or under any one of the provisions of the said act of the General Assembly of Georgia, passed December 20, 1833: * * * in which issue the person to whom possession of said land was delivered shall join: and which issue shall constitute the entire pleadings between the parties; nor shall the court allow any matter other than is conregular files of said court; * tained in said issue to be placed upon the *** nor shall said court, at the instance of either party, pass any order, or grant any injunction, to stay said cause, nor permit to be ingrafted on said cause any other proceedings whatever."

It can hardly be necessary to say that the sole, unconcealed object of this legislation was to deprive the Cherokees of the protection of the courts of the United States, or any adjudication therein touching their rights, by precluding any appeal to

said courts for the sake of testing the validity of these acts of the Legislature of Georgia.

That State had already decisively indicated that, if unable to make or control such adjudication, she was abundantly ready to defy it.

A Cherokee named Tassells was arrested on a Georgia warrant for killing another Indian within the Cherokee territory. His counsel obtained a writ of error from a United States court, requiring Georgia to show cause why he should not be discharged and his case remitted to the Cherokee authorities, according to existing treaties. Georgia defied the writ and hung the Indian. And this finished the case.

Some time thereafter, two missionaries of the American Board among the Cherokees were arrested on à Georgia process, tried for, and convicted of, inciting the Indians to resist the policy of the State of Georgia designed to effect the expulsion of the Indians from her soil. They were of course sentenced to the State Prison. They appealed by writ of error to the courts of the United States, and the final adjudication thereon was had before the Supreme Court at Washington, the decision being pronounced by Chief Justice Marshall. It was entirely in favor of the missionaries and against the pretensions

27 I am indebted for this fact to the late Governor George N. Briggs, of Massachusetts, who was in Washington as a member of Congress

when the decision was rendered.

28 President Jackson, in his first Annual Message, already referred to, had said:

"A portion of the Southern tribes, having mingled much with the whites, and made some progress in the arts of civilized life, have lately attempted to erect an independent government within the limits of the States of Georgia and Alabama.'

And Colonel Benton, in his "Thirty Years' View," says (vol. i., p. 164), General Jackson

of Georgia, holding that the treaties between the United States and the Cherokees were valid and binding on all the States, and paramount to all State laws, according to that provision of the Federal Constitution which prescribes :

"Article VI., § 2. This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding."

The attorneys for the missionaries sought to have this judgment enforced, but could not. General Jackson was President, and would do nothing of the sort. "Well: John Marshall has made his decision: now let him enforce it!" was his commentary on the matter. So the missionaries languished years in prison, and the Cherokees were finally (1838) driven into exile, in defiance of the mandate of our highest judicial tribunal. 28 Georgia was permitted to violate the faith of solemn treaties and defy the adjudications of our highest court. South Carolina was put down in a similar attempt: for the will of Andrew Jackson, not the Constitution, was in those years "the supreme law of the land." "

"refused to sustain those Southern tribes in their attempt to set up an independent government within the States of Alabama and Georgia."

Both these gentlemen well knew-Colonel Benton could not but know-that the Cherokees only claimed or sought the rights which they had possessed and enjoyed from time immemorial, which were solemnly guaranteed to them by treaty after treaty, whereof the subsisting validity and pertinence were clearly affirmed by the tribunal of ultimate resort.

29 The late Jeremiah Evarts, long the efficient and honored Secretary of the American Board