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   Chapter 18 REACTION TOWARDS STATE SOVEREIGNTY (1816-1829)

Rise of the New West, 1819-1829 By Frederick Jackson Turner Characters: 22465

Updated: 2017-11-29 00:03


From the close of the War of 1812, an increasing reaction was in progress in various states against the ardent nationalism which characterized the country at that time. The assertion of the doctrine of state sovereignty by the Hartford Convention in 1814 [Footnote: Babcock, Am. Nationality (Am. Nation, XIII.), chap. xv.] so aroused the other sections of the country that particularism was for the time discredited. Leaders of Virginia politics even approved a rumor that Madison would march troops against New England; Judge Roane, later a champion of Virginia's sovereignty, denounced the "anarchical principles" of the section. [Footnote: Randolph-Macon College, John P. Branch Hist. Papers, II., 18.] In that period, when Calhoun and the other leading statesmen of South Carolina supported the protective tariff and the bonus bill, when Madison, the author of the Virginia resolutions of 1798, signed the bill for the recharter of the national bank, when Chief-Justice Marshall, a son of Virginia, was welding firm the bonds of nationalism in his great series of decisions limiting the powers of the states and developing the doctrine of loose construction of the Constitution, [Footnote: Babcock, Am. Nationality (Am. Nation, XIII.), chap. xviii.] and when New England itself was explaining away the particularistic purposes of the Hartford Convention, it might well seem that the days of state sovereignty had come to an end.

Even then, however, the pendulum was starting to swing in the opposite direction. The crisis of 1819 and the decisions of the supreme court asserting the constitutionality of the national bank under the broad national conception of the Constitution, produced protests and even resistance from various states whose interests were most affected. Ohio in 1819 forcibly collected a tax on the branch bank of the United States, in defiance of Marshall's decision rendered earlier in the year in the case of McCulloch vs. Maryland; and in 1821 her legislature reaffirmed the doctrines of the Virginia and Kentucky resolutions, and passed an act withdrawing the protection of the laws of the state from the national bank, [Footnote 2: Ames, State Docs. on Federal Relations, No. 3, p. 5.] and even persisted in her resistance after the decision (Osborn vs. Bank of U. S., 1824) against the state. But the proceeds of the tax were ultimately restored. Nor was Ohio alone in her opposition to this decision. Kentucky was almost equally excited, and Senator R. M. Johnson made a vain attempt in 1821 to procure an amendment to the Constitution providing that in controversies in which a state was a party the Senate of the United States should have appellate jurisdiction. [Footnote: Annals of Cong., 17 Cong., I Sess., I., 23, 68, 96; Ames, State Docs., No. 3, p. 17; Ames, Amendments to the Const., in Am. Hist. Assoc., Report 1896, II., 161; Niles' Register, XVII., 289, 311, 447.] Judge Roane, chief-justice of Virginia, in a series of papers in the Richmond Enquirer, challenging the nationalistic reasoning of the court, asserted that the Constitution resulted from a compact between the states, [Footnote 2: Randolph- Macon College, John P. Branch Hist. Papers, II., 106-121.] and in this attack he was heartily supported by Jefferson. [Footnote 3: Jefferson, Writings (Ford's ed.), X., 140, 189, 229.] Justice Marshall, in Cohens vs. Virginia [Footnote 4: 6 Wheaton, 264.] (1821), decided that the supreme court had appellate jurisdiction in a case decided by the state court where the Constitution and the laws of the United States were involved, even though a state was a party.

Virginia's attorneys maintained, on the contrary, that the final construction of the Constitution might be given by the courts of every state in the Union; and Judge Roane, whose own decision had been overturned, again appealed to his fellow-citizens in a strong series of articles. Again Jefferson denounced the consolidating tendencies of the judiciary, "which, working like gravity without any intermission, is to press us at last into one consolidated mass." Virginia entered her solemn protest against the decision, and her House of Delegates reaffirmed the argument of Virginia's counsel, and asserted that neither the government of the state nor of the United States could press the other from its sphere. In effect, Virginia's position would have given the state a veto on the will of the federal government, by the protection which her courts could have extended to the individual subject to her jurisdiction under the interpretation placed by the state upon the Constitution. [Footnote: Randolph-Macon College, John P. Branch Hist. Papers, II., 28; Jefferson, Writings (Ford's ed.), IX., 184; cf. ibid., X. passim; Madison, Writings, III., 217-224; Ames, State Docs. on Federal Relations, No. 3. p. 15; Niles' Register, XX., 118; 6 Wheaton 385.] The leading expositor of Virginia reaction in this period was John Taylor of Caroline, the mover of the resolutions of 1798. His "Construction Construed", published in 1820, was introduced by a preface in which the editor said: "The period is indeed by no means an agreeable one. It borrows new gloom from the apathy which seems to run over so many of our sister states. The very sound of State Rights is scarcely ever heard among them; and by many of their eminent politicians is only heard to be mocked at." Taylor himself was led to write the book by the agitation over the Missouri question and the case of McCulloch vs. Maryland. One of its purposes was to insist that sovereignty was not divided between the separate spheres of the state and federal government, but rested rather in the people of the several states. Two years later, in his "Tyranny Unmasked", Taylor developed the idea that the division of the power of the people between the federal and state governments would be nugatory if either Congress or the supreme court could exclusively determine the boundaries of power between the states and the general government. His remedy for usurpation was the "state veto," which was to be "no mere didactic lecture," but involved the right of resisting unconstitutional laws. He met the difficulty that the people of one state would construe the Constitution for the people of all the states, by the answer that it was the lesser evil. [Footnote: Taylor, Tyranny Unmasked, 258, 262.] Again in 1823, in his "New Views of the Constitution", he expounded the same ideas, and dwelt upon the position of the states as the defenders of separate geographical interests against oppression by the majority of the nation. He saw a grave danger in the relinquishment to Congress of the power to deal with local and dissimilar geographical interests by loose-construction legislation upon such subjects as banks, roads, canals, and manufactures. It would tend to produce geographical combinations; sections by combining would exploit and oppress the minority; "Congress would become an assembly of geographical envoys from the North, the South, and the West." Against these evils, the Constitution, according to his view, had provided by confining geographical interests within state lines instead of "collecting them into one intriguing arena." The states, reposing on their sovereignty, would interpose a check to oppressive action and to the combination of sectional interests against the minority. [Footnote 1: Taylor, New Views (ed. of 1823), 261 et seq.]

Not a theory of government, however, but a political exigency called out a working principle of state rights. When the industrial policy of the government fell under the complete control of the north, and the social system of the south seemed to be menaced, state sovereignty controlled the southern policy. The increase in popularity of Clay's American system of internal improvements and a protective tariff aroused the apprehensions of the whole planting section; the struggle over the admission of Missouri taught the south the power of an unfriendly national majority; and, in 1822, a threatened insurrection of the Negroes at Charleston brought home to the whole section, and particularly to South Carolina, the dangers arising from an agitation of the question of slavery. [Footnote 2: Cf. Hart, Slavery and Abolition (Am. Nation, XVI.), chap. viii.] In the irritated condition and depression of this section, the triumph of loose construction principles and the possible election of a northern president seemed to presage not only the sacrifice of their economic interests, but even the freeing of their slaves. [Footnote 3: See the resolutions of Virginia, December 23, 1816, in Ames, State Docs. on Federal Relations, No. 5, p. 3.] The colonization society, which in its origin had been supported by southern men, became an object of denunciation by the lower south after the Missouri controversy and the insurrection of 1822. The opposition was intensified by the disposition of the society, towards the close of the period, to advocate emancipation, as well as the removal of the existing free Negroes. [Footnote: Cf. Hart, Slavery and Abolition (Am. Nation, XVI.), chap. xiv.]

In Virginia the doctrine of state rights was supported by the friends of Crawford, and, in general, by the older portion of the state. In her western counties, however, where a movement was in progress for a constitutional convention to redistribute political power so that the populous interior should not be subordinated to the slave-holding minority of the coast, there was a strong sentiment in favor of the constitutionality and expediency both of federal internal improvements and the tariff. Nevertheless, Virginia's voice was determined by the ascendancy of the old-time plantation interests. In 1825, Jefferson suggested that the legislature of Virginia should pass a set of resolutions, declaring the internal-improvement laws null and void. He advised, however, that, at the same time, the issue should be avoided by an act of the Virginia legislature validating these congressional laws [Footnote 2: Jefferson, Writings (Ford's ed.), X., 348-352; Ames, State Docs. on Federal Relations, No. 4, p. 8.] until action could be taken on a carefully guarded proposal to amend the Constitution so as to grant the right. This was the last effort of Jefferson to stay the tide of internal improvements which was sweeping opposition before it, and even he withdrew his project before it was acted on. His death (July 4, 1826) removed from Virginia the most influential advocate of state sovereignty and the greatest of the Virginia dynasty since Washington. On the same day John Adams died. The men who made the declaration of independence were passing away, but the spirit of that epoch was reviving in the south.

South Carolina was the theatre of a conflict between the old-time forces of nationalism, of which Calhoun had been the most prominent exponent, and the newer tendencies which would safeguard the interests of the commonwealth by appealing to the doctrine of state sovereignty. [Footnote: Houston, Nullification in S. C., chap. iv. ] At first, the conservative party was in the ascendancy. In 1820 the House of Representatives of South Carolina passed a resolution which deprecated t

he system of protection as premature and pernicious, but admitted that Congress possessed the power of enacting all laws relating to commerce, and lamented the practice "of arraying upon the questions of national policy the states as distinct and independent sovereignties in opposition to, or (what is much the same thing), with a view to exercise a control over the general government"; [Footnote 2: Ames, State Docs. on Federal Relations, No. 4, p. 3.] and, as late as 1824, the same body passed resolutions declaring that the man "who disseminates doctrines whose tendency is to give an unconstitutional preponderance to State, or United States' rights, must be regarded as inimical to the forms of government under which we have hitherto so happily lived"; and that "the People have conferred no power upon their state legislature to impugn the Acts of the Federal Government or the decisions of the Supreme Court of the United States." [Footnote: Ames, State Docs. on Federal Relations, No. 4, p. 6.] The state Senate was already controlled by the opponents of national power, led by Judge Smith; and the next year the Lower House also fell under their dominance.

The attitude of McDuffie illustrates the transitional conditions in South Carolina. In 1821 he published a pamphlet supporting a liberal construction of the powers of Congress, and refuting the "ultra doctrines respecting consolidation and state sovereignty." [Footnote 2: Defense of a Liberal Construction, etc., by "One of the People." Reprinted in Philadelphia, 1831. To this pamphlet, Governor Hamilton had prefixed "an encomiastic advertisement."] In 1824, also, he supported the constitutionality and expediency of the general survey act, and repudiated the idea that the state governments were "in any respect more worthy of confidence than the General Government." [Footnote 3: Annals of Cong., 18 Cong., I Sess., 1372.] But he opposed the tariff of 1824, and in 1825 he voted against specific measures for internal improvement. Soon after this he joined the ranks of the advocates of state sovereignty, and, together with Hamilton and Hayne, so far outstripped the leaders of that faction that Judge Smith and his friends found themselves in a conservative minority against the ultra doctrines of their former opponents. Doubtless the reversal of South Carolina's attitude was accelerated by the slavery agitation which followed the emancipation proposition of Ohio, already mentioned, and by the contest over the Negro seamen act, [Footnote: Passed December 21, 1822. See Ames, State Docs. on Federal Relations, No. 5, p. 12; cf. Hart, Slavery and Abolition (Am. Nation, XVI.), chap. xix.] a measure by which South Carolina, in consequence of the plot at Charleston, required that free Negroes on vessels entering a port of South Carolina should be imprisoned during the sojourn of the ship. The act brought out protests, both from other states and from Great Britain, whose subjects were imprisoned; and it was declared unconstitutional by Adams's attorney-general and by the federal courts nevertheless, it remained unrepealed and continued to be enforced. [Footnote 2: McMaster, United States, V., 200-204, 417.] The Senate of South Carolina met the situation, at the close of 1824, by resolutions affirming that the duty of preventing insurrections was "paramount to all laws, all treaties, all constitutions," and protesting against any claims of right of the United States to interfere with her domestic regulations in respect to the colored population. [Footnote 3: Ames, State Docs. on Federal Relations, No. 5, p. 14.]

Georgia, a few years later (December, 1827), in opposition to the Colonization Society, [Footnote 4: Ibid., 17, 19.] vehemently asserted her rights, and found the remedy no longer in remonstrance, but in "a firm and determined union of the people and the states of the south" against submission to interference. Already Georgia had placed herself in the attitude of resistance to the general government over the question of the Indians within the state. From the beginning of the nation, the Indians on the borders of the settled area of Georgia were a menace and an obstacle to her development. Indeed, they constituted a danger to the United States as well: their pretensions to independence and complete sovereignty over their territory were at various times utilized by adventurers from France, England, and Spain as a means of promoting the designs of these powers. [Footnote: Am. Hist. Rev., X., 249.] Jackson drove a wedge between the Indian confederacies of this region by his victories in the War of 1812 and the cessions which followed. [Footnote: Babcock, Am. Nationality (Am. Nation, XIII.), chaps, ii., xvii.] Although, in 1821, a large belt of territory between the Ocmulgee and Flint rivers was ceded by the Creeks to Georgia, the state saw with impatience some of the best lands still occupied by these Indians in the territory lying between the Flint and the Chattahoochee.

The spectacle of a stream of Georgia settlers crossing this rich Indian area of their own state to settle in the lands newly acquired in Alabama and Mississippi provoked Georgia's wrath, and numerous urgent calls were made upon the government to carry out the agreement made in 1802, [Footnote: Phillips, "Georgia and State Rights," in Am. Hist. Assoc., Report 1901, II., 34.] by completing the acquisition of these Indian lands. Responding to this demand, a treaty was made at Indian Springs in February, 1825, by which the Creeks ceded all of their lands in Georgia; but when Adams came to the presidency he was confronted with a serious situation arising from this treaty. Shortly after it had been ratified, Mclntosh, a principal chief of the Lower Creeks, who had signed the treaty, contrary to the rule of the tribe and in spite of the decision to sell no more land, was put to death; and the whole treaty was repudiated by the great body of the Creeks, as having been procured by fraud and made by a small minority of their nation. The difficulty arose from the fact that the various villages of these Indians were divided into opposing parties: the Upper Creeks, living chiefly along the forks of the Alabama, on the Tallapoosa and the Coosa in Alabama, constituting the more numerous branch, were determined to yield no more territory, while the principal chiefs of the Lower Creeks, who dwelt in western Georgia, along the Flint and Chattahoochee branches of the Appalachicola, were not unfavorable to removal.

When Governor Troup, of Georgia, determined to survey the ceded lands, he was notified that the president expected Georgia to abandon the survey until it could be done consistently with the provisions of the treaty. Although the treaty had given the Creeks until September, 1826, to vacate, Governor Troup informed General Gaines, who had been sent to preserve peace, that, as there existed "two independent parties to the question, each is permitted to decide for itself," and he announced that the line would be run and the survey effected. The defiant correspondence which now ensued between the governor and the war department doubtless reflected the personal hot-headedness of Troup himself, but Georgia supported her governor and made his defiances effective. He plainly threatened civil war in case the United States used force to prevent the survey. [Footnote: Ames, State Docs on Federal Relations, No. 3, pp. 25-31; Phillips, "Georgia and State Rights," in Am. Hist. Assoc., Report 1901, II., 58-60; 40 (map).]

On investigation, President Adams reached the conclusion that the treaty was wrongfully secured, and gave orders for a new negotiation. This resulted in the treaty of Washington, in January, 1826, supplemented by that of March, 1826, by which the Creek Indians ceded all of their lands within the state except a narrow strip along the western border. This treaty abrogated the treaty of Indian Springs and it provided that the Indians should remain in possession of their lands until January 1, 1827. Throughout the whole of these proceedings Georgia was bitterly incensed. Claiming that the treaty of Indian Springs became operative after its ratification, and that the lands acquired by it were thereby incorporated with Georgia and were under her sovereignty, the state denied the right of the general government to reopen the question. "Georgia," said Troup, "is sovereign on her own soil," and he entered actively upon the survey of the tract without waiting for the date stipulated in the new treaty. When the surveyors entered the area not ceded by the later treaty, the Indians threatened to use force against them, and at the beginning of 1827 another heated controversy arose. The president warned the governor of Georgia that he should employ, if necessary, "all the means under his control to maintain the faith of the nation by carrying the treaty into effect." Having done this, he submitted the whole matter in a special message to Congress. [Footnote: February 5, 1827. Richardson, Messages and Papers, II., 370.]

"From the first decisive act of hostility," wrote Troup to the secretary of war, "you will be considered and treated as a public enemy"; and he announced his intention to resist any military attack on the part of the United States, "the unblushing allies of the savages." [Footnote: Harden, Troup, 485.] He thereupon made preparations for liberating any surveyors who might be arrested by the United States, and for calling out the militia. In the House of Representatives, a committee recommended the purchase of the Indian title to all lands in Georgia, and, until such cession were procured, the maintenance of the treaty of Washington by all necessary and constitutional means; but the report of the Senate committee, submitted by Benton, supported the idea that the ratification of the treaty of Indian Springs vested the title to the lands in Georgia, and reached the conclusion that no preparations should be made to coerce the state by military force. In November, 1827, the Creeks consented to a treaty extinguishing the last of their claims, and the issue was avoided.

In the mean time, the Cherokees in the north-western portion of the state gave rise to a new problem by adopting a national constitution (July 26, 1827) and asserting that they constituted one of the sovereign and independent nations of the earth, with complete jurisdiction over their own territory to the exclusion of the authority of any other state. [Footnote: Text in Exec. Docs., 23 Cong., 2 Sess., III., No. 91 (Serial No. 273); Ames, State Docs. on Federal Relations, No. 3, p. 36; see also House Reports, 19 Cong., 2 Sess. No. 98.] This bold challenge was met by Georgia in the same spirit which guided her policy in regard to the Creek lands. The legislature, by an act of December 20, 1828, subjected all white persons in the Cherokee territory to the laws of Georgia, and provided that in 1830 the Indians also should be subject to the laws of the state. Thus Georgia completed her assertion of sovereignty over her soil both against the United States and the Indians. But this phase of the controversy was not settled during the presidency of Adams.

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