Seven newspaper clippings. ca 1834 Letter to Gov. Wilson Lumpkin by "one of the Indian Counsel." Folder 1397

For the Whig To His Excellency, Wilson Lumpkin, Governor of the State of Georgia.

In addressing you upon the subject of this communication, it is not intended as a mark of respect, for I should be very unwilling to show to you any thing of that kind, upon this, or any other occasion. You are not entitled to it, either as a gentleman or a politician, and I should despise myself, could I entertain any other feeling towards you than that of the deepest loathing, and the most entire contempt. But you are the Governor of the State, and have written a Message; and I am a citizen of the State, and have read it: and it is a paper so extraordinary in its kind, so outrageous in its recommendations, & so obnoxious to criticism, that it requires to be noticed. It is therefore my intention to animadvert upon it in such terms, as though they may not sound courtly to your ears, yet will convey some solemn truths to the public, and which even your excellency cannot entirely disregard. Your observations in regard to the College that, "the general impression which pervades the public mind, that the almost exclusive object of a College education, is to multiply Lawyers and Doctors has a most pernicious effect," is certainly a strong argument in favor of the necessity of fostering that institution; for if the people are really so ignorant of the objects of public education, it is time that the public mind should be enlightened upon that subject by all the means in the power of legislation. It is however a chimera of your own brain produced by the dread of those interested Lawyers, who have given you so much trouble in our operations against the rights of the "poor unlettered Cherokees," which has induced you to think that the whole "public mind"is so seriously affected your own imagination. Your opinion of the "public mind" in that regard, forcibly reminds one of the famous Jack Cade's complaint against the Lord High Treasurer of England, in the reign of Henry the sixth:- "Thou hast most traitorously corrupted the youth of the realm, in erecting a grammar-school; and whereas before, our forefathers had no other books than the score and tally, thou hast caused printing to be used, and contrary to the King, his crown, and dignity, thou hast built a paper mill. It will be proved to they face, that thou hast man about thee, who usually talk of a noun and a verb, and such abominable words as no christian ear can endure to hear." But all this in fact amounts to nothing, and is only mentioned "en Passant." It is the violent and unmerited attack upon the independence of the Judiciary department of the Government that claims consideration, as an attempt to sap and overturn the very foundation of our dearest political institutions; and to that subject will my further remarks be exclusively devoted. In entering upon an examination of your Message in that regard, let me call the attention of your Excellency to a few texts, which though they may fail to have any effect upon a subject of the deepest interest to the whole community. 1st. "The legistive, executive, and judiciary, departments of government shall be distinct, and each department shall be confided to a separate body of magistracy, and no person or collection of persons, being of one of those departments, shall exercise any power, properly attached to either of the others, except in the instances herein expressly permitted." (Constitution of the State of Georgia.) 2nd. "The independence of the Judiciary is hated and dreaded by despotic power under every form of government." (Bacon's letters.) 3rd. "Tacitus has transmitted accounts of the abuses of power under judicial forms, to satiate the cruelty, or gratify the cupidity of a Tiberius, a Caligula, or a Nero: us everlasting memorials of the baneful nature of tyranny, and the fatal effects of a dependant Judiciary." Now let me compare your oracular opinions, with these tests, and let them stand or fall by them- you declare, that "it is not the design of the Executive, in any manner whatever to encroach upon the judicial department of the government"- what then sir was your design? If you meant nothing you ought to have said nothing. But if you meant what you intended, or intended what you meant,*- then your annual Message to the Legislature of Georgia, in the year of our Lord one thousand eight hundred and thirty-four, will form an era in the infamy of your political history as disgraceful to the State, as it is mortifying to the people, over which you preside. That message is perhaps made up of the strangest compound and admixture of folly, turpitude and moral depravity, that ever emantated from any demagogue, in any age or country, in abuse of the power which they too often exercise over the people whom they are always endeavoring to mislead. So *cunningly and artfully are its parts joined and blended together into one mass of incongruity and absurdity, that in the same breath, "the most scrupulous and profound respect for the Judiciary, as a co-ordinate department of the government," and insisting that the conduct of the "Judge of the Superior Courts of the Circuit in which the Indians chiefly reside," countenanced and sustained, as it has been by the conviction of Judges, "cannot be overlooked by the present legislature, without prostrating the rights of our citizens and the sovereignty of the State." What perversion of language; -What sophistry of argument! "The danger, says an eminent jurist, under any form of government, is not so much of direct and palpable violations of acknowledged principles, as of perversions and sophistications." Can or will the people of Georgia bear all this? If they can or will, them farewell a long farewell, to the hopes of every true and honest patriot in the country. "Quosque tandem abutere, Catalina, patrentia nostra." This far fetched and overstrained Message of your excellency may be much valued by your friends and admirers, as furnishing a true and faithful picture of your conduct and character, inconsistent, slippery and not to be depended upon. But by all others it will only be read as a matter of curiosity, to see how far every sense of propriety and rectitude can be sacrificed at the foot-stool of a grovelling ambition, and a time-serving policy. The smile of contempt which its puerility is so well calculated to excite among those who are not Georgians, rises into a feeling of a more intense kind, and the deepest humiliation must be experienced, by every honest citizen of the State, when he finds his country thus degraded and her most valued institutions contemned by one who is sworn to "preserve, protect and defend them." You say that "the Legislature have an unquestionable right to make it a highly penal crime for any citizen or inhabitant of this State to advise aid, or counsel, in any measure, or issue or serve any process, which shall bring in question before any tribunal of this State, or of the United States, our right of sovereignty and jurisdiction over our entire population and territory." So far as this recommendation is intended to prevent the Indians from asserting their rights in the Courts of Justice, let me refer your Excellency, and the Legislature through this address to you, to our own constitution which emphatically provides that no "person (Indians are persons) shall be debarred from advocating or defending his cause before any Court or tribunal, either by himself or counsel or both." And so far as it is intended to prevent the courts from entertaining jurisdiction of Indian rights, you may perhaps advert with profit, if not with pleasure to a little scrap of English history, from which you may learn that even in that country the independence of the Judiciary has been asserted and maintained for more than a century past, against parliamentary usurpation. "In the year 1700 (13th: William 3d) it was enacted that the commission of the Judges should be made (not as formerly durante placito, but) quamdio bone se gesseriut, and their salaries ascertained and established. From which time there was no longer a subservient temper in the Judges, calculated to secure their continuance in office. The Judges feeling their independance to be real and solid, disdained to lead themselves to the sinister purposes of ministers, and spurned at the interference of any power in the performance of their duties. A case arose in which, the house of commons had made an order that it should be penal for any Judge, counsel, or attorney to be concerned in the trial. However the Chief Justice Holt, and several lawyers, brought the cause on. The house of commons, on this contempt of their order sent, a serjeant at arms for the Chief Justice to appear before them- but he bade them begone, on which the commons sent a second message by their speaker, attended by as many members as espoused the measure. After the speaker had delivered his message; Lord Chief Justice Holt replied to him in the following remarkable words- "go back to your chair, Mr. Speaker, within these five minutes, or you may depend upon it I will send you to Newgate- you speak of your authority: but I tell you I set here as the interpreter of the laws, and a distributer of justice: and were the whole house of commons in your belly, I would not stir one foot." But further you say- "instead of the Indian complainants seeking a remedy for their supposed wrongs by common law, they have resorted to what is termed a Court of equity- and the Injunctions sanctioned and sustained by the Judge of the Cherokee circuit, are believed to contain assumptions of power on the part of the court never confided to any judicial tribunal in the United States, &c.' Equity in regard to Indian rights must indeed seem to your Excellency a novel kind of proceeding, to you who have continually recommended nothing but the most iniquitous acts to be practised upon them, but if you will carefully read and get by heart the following paragraphs on the subjects of equity jurisdiction, you will yourself become a sort of current Lawyer and become and be able to hold your hand against those few interested lawyers, who if you are not continued in the government for at least another term, will most assuredly assert this government, and establish the Indian government in its stead. Know then learned Sir- that equity never interferes with the right to trial by jury in georgia; and that the power of granting injunctions is entirely a preventive power and is frequently the only justice that can be rendered to a party. It only operates to prevent irreparable injury, until the rights of parties can be tried by a jury, and determines of itself no right between them. The preventive powers exercised in chancery operate before the subject is ripe for the common law. If the act has been already done, redress must be sought in the legal tribunals; and equity can only interfere to prevent a new injury. Chancery anticipates the common laws and its cognisance ends where the latter commences. And that chancery will and does when a proper cause is made out interfere to prevent irremedable trespasses is as clear and as well supported by authorities as that you are entirely incapable of judging what are, or are not, the proper subjects upon which a Court exercising equity jurisdiction may grant writs of Injunction. -It is say the books "a wholesome jurisdiciton, to be liberally exercised in the prevention of irreperable injury, and depends on much latitude of discretion in the courts. I have now done with you sir; at least for the present, only adding for your consideration, in the sincerity of the firmest belief, that if there is truth in religion- justice in heaven, or an...that your conduct in regard to the last remnant of the Aborigines of the country residing in our limits, cannot be justified before God or man, and that you have reason to tremble at the retribution which sooner or later must be required at your hands. As to your calumnies against those persons who have been employed to assert and maintain the rights of the Indians, they will always be ready and willing to defend themselves, in any way, at any time, that may suit your Excellency to show that you will not screen yourself behind official dignity; to be done without being prepared to give that satisfaction which every gentleman has a right to ask and no gentleman ought to refuse. One of the inan Counsel. * Words used by his Excellency in answer to an inquiry upon another subject, on a former occasion. * His Excellency has never been charged with wanting cunning and artifice, these qualities are frequently the concomitants of ignorance, presumption and vanity, and always of duplicity.