[Note: A friend of mine, Dr. Joseph Kitchens, retired Director of the Funk Heritage Center at Georgia’s Reinhardt University, has a knack for asking provocative questions. A couple of years ago, for instance, we were discussing possible topics for a lecture on antebellum Georgia politics for the Funk Center’s annual celebration of the state’s history. In the course of our discussion, Joe asked, “What were the links among state rights, nullification, and Indian removal in Georgia in the 1820s and 1830s?” I realized that I didn’t have an answer, at least not yet, so I agreed to look into the topic. That search eventually produced a lecture. What follows is the first of two posts answering Dr. Kitchens’ question, or trying to; this one’s for you, Joe!]
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The American Constitution is a federal one, based on one national government and subordinate state governments. The Constitution specifies the powers delegated to the national government and those prohibited to the states; and the Tenth Amendment states that, “The powers not delegated to the United States [government] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Yet, almost from the ratification of the new Constitution, questions arose about the division of authority between the national and state governments.
A major bone of contention concerned the power to determine the constitutionality of congressional laws. This would gradually be lodged in the nation’s court system, but, until various legal precedents were acknowledged and accepted, there was much confusion over the specific rights of states in disputes with the national government. A good example of this issue is the complicated story of the relationship between the governments of Georgia and the United States from the mid-1790s through the late 1830s. During this antebellum “cold war,” Georgia’s most versatile weapon was the concept of state rights.
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Our tale begins with the Yazoo Land Fraud of 1794-1795. Greased by bribes from companies of land speculators, the Georgia legislature sold the state’s western territory, essentially the present-day states of Alabama and Mississippi, for $500,000. Within a few months time, Congressman James Jackson returned to Georgia and led a determined campaign that, in 1796, rescinded the Yazoo sale.
By then, however, the Yazoo companies had sold their lands to other speculators, many from New England. Once the legislature passed the 1796 Rescinding Act, the supposedly “innocent” northern recipients of Yazoo land grants were in a fix: they had purchased documents that apparently transferred lands to them, but the Georgia legislature voided the sale and destroyed records associated with it.
Georgia sold the “Yazoo Lands” to the federal government in the “Compact of 1802,” for $1.25 million. More importantly to the state, the national government promised it would extinguish as quickly as possible all remaining Creek and Cherokee land claims within Georgia, when that could be done “peaceably” and “on reasonable terms.”
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With the signing of the Compact of 1802, the “innocent purchasers” of Yazoo lands turned to Congress, where Georgia Representative George M. Troup waged a “state rights” defense of Georgia’s repeal of the Yazoo sale. Troup argued that the Yazoo Act had only passed the legislature because of corruption and had then been rescinded by outraged Georgians anxious to recover their landed heritage from a pack of crooked speculators, as it was their right to do. Thus, Troup insisted, Congress, if it rewarded the allegedly “innocent” purchasers, would be supporting the Yazoo fraud used to steal Georgia’s western territory from its citizens, and ignoring state rights in the process.
The frustrated northern claimants finally sued through the courts for redress, and, in the case of Fletcher v. Peck (1810), Chief Justice John Marshall and the U.S. Supreme Court ruled that, regardless of the corruption accompanying the Yazoo sale, the 1796 Rescinding Act had been an unconstitutional violation of the right of contract. Rejecting this ruling, Georgia’s congressmen and their allies managed to delay settlement with the Yazoo claimants until 1814, when Congress finally provided $5,000,000 from proceeds of land sales in Mississippi Territory to be shared by the Yazoo claimants.
Though George Troup ultimately was unable to prevent Congress from settling the Yazoo claims, he did block it for more than a decade. In the 1820s, Troup would further refine his state rights argument, while Governor of Georgia, and apply it to the question of removing the Creeks from the state.
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As cotton culture spread across Georgia early in the nineteenth century, federal officials proved either unwilling or unable to extinguish, quickly enough for white Georgians, Native American claims to lands within the state. Angered by this delay in fulfilling the “Compact of 1802,” Georgia’s political leaders prodded Congress to complete the process of Indian removal, in one of the ugliest campaigns in the nation’s history.
In 1814, the Creeks surrendered 22 million acres, including a large swath, though not all, of their claims in Georgia. Despite increasing pressure to cede additional lands, the Creeks refused. The Compact of 1802 was irrelevant, the Creek National Council contended in 1824. Its provision that the United States could acquire Indian lands only “peacefully and on reasonable terms,” the Council argued, “amounted to federal recognition of their rights to the land and to refuse to sell it.” Therefore, the Creeks insisted, “we must positively decline the proposal of a removal beyond the Mississippi, or the sale of any more of our territory.”
Nevertheless, in 1825, Georgia concluded a flagrantly corrupt treaty at Indian Springs with a Creek faction led by Chief William McIntosh, who was also Governor George Troup’s cousin. This pact transferred remaining Creek lands in Georgia to the state, and eventually cost Chief McIntosh his life for violating the National Council’s 1824 ruling.
Although the Senate ratified the treaty, when the new President, John Quincy Adams, learned of the corruption involved in the negotiations, he disavowed it. In defending the treaty against the President’s objections, Governor George Troup angrily insisted that the Indian Springs pact was valid, on state rights grounds. He warned that, if challenged by President Adams, Georgia would meet force with force.
Governor Troup claimed that, if Georgia did not stand firm against federal obstruction of her right to be secure in her borders, there would be no recourse if the national administration later turned its eyes towards other explosive issues, like slavery or the protective tariff. As one pro-Troup writer put it in 1825, the Governor’s vehement response showed that he was trying to “maintain, at all hazards, the unalienable rights you possess to your slaves, and to your Indian territory.”
Governor Troup’s threat of civil war blew over, but only after the Adams Administration negotiated new treaties with the Creeks in 1826 and 1827 that finally procured the last Creek lands in the state. Yet, when President Adams refused to allow Georgia to begin surveying the newly-acquired territory before the time specified in those treaties, Governor Troup sent a blistering reply to the secretary of war, warning that, “From the first decisive Act of hostilities [between Georgia and the national government] you will be considered and treated as public enemies . . . because you . . . are yourselves the invaders and . . . the unblushing allies of the Savages whose cause you have adopted.” Fortunately, this threat was not carried out.
Governor Troup’s assertion of state rights in the dispute over Creek lands apparently carried the day. This presumed “triumph” led many white southerners to conclude that Troup’s doctrine might also be effective when applied to other disputes over the respective powers of the federal and state governments.
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By the late 1820s, however, John C. Calhoun of South Carolina’s theory of Nullification, not Troup’s idea of state rights, occupied center stage. Southern planters, who sold their crops in an unprotected world market, were irate that they then had to purchase imported manufactured goods in a protected market, making those goods more expensive.
In 1828, Congress enacted a new protective tariff, raising the maximum rate on imported goods to 41%. Angry southerners derisively labeled the new tax the “Tariff of Abominations.” In response to this latest outrage, John C. Calhoun, who would shortly be elected Andrew Jackson’s Vice-President, anonymously issued the South Carolina Exposition and Protest, laying out his theory of Nullification, an effort to prevent an aggressive national government from imposing its will on an unhappy southern minority, and thus, perhaps preserve the Union.
According to Calhoun’s complex theory, once a state convention had nullified a federal law, that law could only take effect if a constitutional amendment permitting it were ratified by conventions in three-quarters of the states. Failing that, however, a still unsatisfied state would, according to Calhoun, be within its rights to secede from the Union. (Note, however, that Calhoun’s theory presupposed that the President of the United States who was confronted by Nullification would play by Calhoun’s rules.)
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In Georgia, meanwhile, the controversy over the protective tariff seemed to create opportunities to wield George Troup’s state rights philosophy in a new arena. To some Georgians, Nullification resonated with the state rights ideas honed by Troup during the dispute with the Adams administration over the Creeks. (These ideas subsequently would be employed by Governors John Forsyth and George Gilmer to put pressure on the Cherokees, but Troup’s political opponents remained leery of his doctrine, fearing that, like Nullification, it might threaten the Union.)
By 1830, Georgia teetered on the brink, waiting to see how President Andrew Jackson would react to Nullification’s challenge to federal supremacy. Georgia’s two political parties had already begun to splinter in the face of the appeal of Calhoun’s doctrine to some of their members.
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In 1831, Calhoun, no longer vice-president, published the “Fort Hill Letter” over his own name, reiterating the arguments set forth anonymously in the 1828 South Carolina Exposition and Protest. In 1832, Congress enacted a new tariff, lowering maximum rates from 41% to 33%, but this reduction did not satisfy Calhoun and the Nullifiers.
In November 1832, a South Carolina convention voted to “nullify” the tariffs of 1828 and 1832, and the legislature appropriated funds to purchase arms and authorized the enlistment of volunteers to defend the state. In other words, Calhoun’s concept of Nullification was about to move from theory to reality, and the question suddenly became, “How will the President respond?”
End of Part I
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For those interested in reading more of my reflections on history, here are links to my books on the subject: