Communication, 1822 Nov. 6, Milledgeville, Georgia [to members] of the Senate and House of Representatives [of the state of Georgia] / John Clark

Letters
Hammond, Abner
Creek Indians--Treaties
Cherokee Indians--Treaties
Creek Indians--Land tenure
Cherokee Indians--Land tenure
Georgia--Politics and government--1775-1865
United States. Office of Indian Affairs





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Executive Department Georgia Milledgeville
[deleted text: 5 ] [added text: 6 ] th November 1822.}
Fellow Citizens of the Senate And House of Representatives,
As the representatives of the People, permit me, on your annual assemblage to congratulate you upon the happy condition of our common country. At peace with all the world, our agricultural pursuits furnishing ease and comfort, without the temptation to luxury, we find the nation rapidly advancing to a state of physical strength and importance, which will enable the Republic to defy [deleted text: [illegible text] ] [added text: every attempt ] to draw her into the vortex of European turmoil, or to corrupt or abolish the pure principles of her government. To the principles of the Constitution of the Union so wisely framed and prudently administered, may be attributed this prosperity. But in the enjoyment of these blessings we should not be forgetful of the favor of an all wise Providence, in allowing to us a country for our home combining every advantage that could be asked for by man: Be it ours to improve, with a greatful [grateful] heart, all those benefits so signally conferred.
In the affairs of the General Government, it is believed, but few


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changes have taken place, affecting its exterior relations, of immediate importance to this State. Among the most important of these, may be considered the opening of many of the West India ports to the vessels of the United States; this was a measure anxiously looked for by a considerable portion of this State, and it is hoped that the anticipated benefits will be fully realized.
With all the nations of the civilized world a perfect harmony exists, which promises to our country, a long and prosperous peace; and it is a circumstance much to be deplored, that there should be found anything in the internal condition of our country, calculated, even remotely, to impair the full enjoyment of such a blessing. It can not however, have escaped you, that the second Chief Magistrate of the Union, who united all hearts and all voices in his elevation, is destined to feel the weight of a restless and ambitious opposition. It would have been a source of proud exultation that the last of the Patriots whose principles have been purified in the crucible of the Revolution, should have been supported in that policy which is derived from Washington, and which experience has established to be the best calculated to secure to the Republic, peace and prosperity. That political axiom which experience has demonstrated to be perfectly correct,


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"That a due preparation for war is a mean most to be relied on to prevent aggression," seems to have been forgotten by those who manifest a disposition to pull down and destroy those national defences which have been so wisely planned, and as yet, but partially executed. Were other reasons wanting, it would be amply sufficient to establish the policy in question, to advert to the unprepared state of our country immediately preceding the late war; much blood and treasure would have been saved to the nation, by a few additional Frigates, a few thousand well disciplined Troops and fortifications located at the most exposed and probable points of attack. But it would seem that there are those who are deaf to the suggestions of experience, and whose political creed it is for the pleasure of hoarding a dollar for the moment, to sacrifice thousands at a distant period. A steady adhere [deleted text: a ] nce to a system of national defence commensurate with the resources of the Republic, and situation of the country, is obviously a dictate of wisdom. For nothing short of the power of repelling injuries will secure to the Union a rational prospect of escaping the calamities of war, or the degradation of insult. Such has been the enlightened and energetic course throughout, (of the present Chief Magistrate) and we may well hope that it may not be changed from light or transient motives, or obstructed from mistaken views of economy, or the restless aspirations of


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individual ambition.
Turning from this slight contemplation of the General to the State government, I, with the most heartfelt satisfaction congratulate you on the rapid advances which our State is making to that station of influence and consideration, which, ere long, she is destined to reach in the affairs of the nation. By her increased population she is entitled to an additional representative in the next national Legislature. The six new counties formed out of the late acquisition of territory from the Creek nation of Indians, are now in a state of complete organization as contemplated and pointed out in the act of the last General Assembly, and from returns received from each of these counties, have exercised the rights of freemen to be represented in the Legislature Councils of the State, by the election of a Senator and Representative from each county.
As our State is fast increasing in population, extension of territory and wealth, it is to lamented that there exists so deplorable a deficiency in our system of Education and Internal improvement. These objects have been so repeatedly presented to the Legislature, and are intrinsically of such vital importance to the prosperity, happiness, strength ad influence of the State that it is deemed superfluous to say more, than [added text: that ] it is sincerely to be wished that we may no longer by the assumption of the name, satisfy ourselves


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for the substantial benefits of a digested and operative plan of general education and internal improvement. Permit me, however to call your attention to the Poor school fund, and to suggest, whether it would not ultimately redound more to the advantage of the State to have that fund added to the one appropriated to county Academics by the last Legislature. In doing this I am solely actuated from the convinction [conviction] that the brilliant advantages which some may promise from this source, to the cause of humanity and science will prove illusory. There is happily too little poverty and too much proud independence in our country, ever to render poor schools on an extensive plan, necessary or profitable to the community. And should an entire abandonment of the system, not comport with the views of the Legislature, it is respectfully conceived that all beneficial results may be realized by making the transfer of the fund conditional, so as to oblige the several Academics to educate, gratuitously, a given number of poor children selected in such manner as may be deemed most equitable & just.
Exertions have been repeatedly made to procure a suitable person to fill the office of Engineer, but I regret, that they have as yet been unsuccessful. There have been applicants for the office, but the want of sufficient vouchers for their skill and experience has hitherto prevented the Executive hazzarding [hazarding] an appointment. The only individual now in the southern states, who is known to have given


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practical evidences of his qualifications for an office of this kind is a Mr. Fulton now in the employment of the State of North Carolina, at five thousand dollars per annum. This State from the talents and industry of this gentleman, is said to have derived signal benefit. As the services of an Engineer, are to plan and direct, and not to labor, I would respectfully [deleted text: [illegible text] ] [added text: suggest the ] propriety of attempting to effect an arrangement with that State, so as to have the services of that gentleman in conjunction, upon such principles as may be deemed equitable and just. From the length of time he has been in the employment of North Carolina, it is hoped and believed that such an arrangement is practicable; and the occasional services of a man of experience and acknowledged talents and industry, would more satisfactory and beneficial than the undivided services of one less skilful [skillful] .
The Legislature by resolution bearing date
16th.. May 1821, directed a correspondence to be opened with the President of the United States, with a view to a further acquisition of territory. The same subject was revived by an additional resolution of the
22d. [22nd] December last, which also embraced the topic of citizens claims against the Cherokee Nation. -- These resolutions were duly complied with, and communications made to the President and to our Senators and Representatives in Congress, and an appropriation


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of thirty thousand dollars was made for the purpose of treating with the Creeks and Cherokees. General John Floyd, Col. Duncan G. Campbell and Major James Meriwether are appointed commissioners on the part of the United States to hold a Treaty with the Cherokees. The said commissioners are instructed to co-operate [cooperate] with the State commissioners in promoting to the extent of their powers, the views and interest of the State. The Legislature in causing this subject to be laid before Congress were impressed with the importance of holding a treaty with as least one of these tribes in the course of the last summer; in this, however, they have been disappointed from various causes, The sum appropriated is evidently too small to effect the objects for which it was made, and it is a subject of regret that no exertions were made on the part of our delegation to increase it; which it is conceived could not with any propriety have been objected to, when we consider the great advantage, and immerse profit, that has resulted to the United States in their contract with the State of Georgia for her western territory.
From the correspondence herewith communicated, it will be seen, that the President of the United States, agreeably to a request of the Legislature as expressed in a resolution of the
22d. [22nd] of December 1821. caused the commission with which General Preston had been


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charged to be continued open at Athens until the
15th.. of March last. It will also appear that on an after application of the Executive to the President he has directed, that the claims in question, made out in conformity to the instructions under which General Preston acted, be received at the War Department until the first of January next, when such order will be taken in relation to them as injustice may require. -- As this is a subject of great interest to many of our poor and suffering fellow citizens I recommend it to your further consideration. I do this the more readily from a belief that the course adopted for establishing those claims is so rigid as to preclude many of the claimants from recovering their just rights; which were understood to have been provided for, by the Indians as well as by the commissioners on the part of the State. The amount of claims as yet allowed by the President is eighty eight thousand, seven hundred and two dollars and sixty two cents; the first instalment [installment] of which has been received agreeably to the stipulations of the Treaty, and is regularly paid to the claimants as they apply, by Elisha Wood Esquire, one of the Secretaries of this Department. The reasons for not allowing interest on the claims are given in the opinion of the Attorney General of the United States a copy of which is herewith transmitted.
By a resolution of the Legislature approved
22d. [22nd] December last the


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Executive was requested to open a correspondence with the President of the United States, with a view, if possible to procure satisfaction in money, or otherwise, to be made, certain cherokee Indians or heads of Indian families for reservations of land lying within the limits of this State, claimed under the Treaties concluded at the cherokee Agency on the
8th.. day of July 1817. and at Washington City on the
27th.. February 1819. Upon this subject the President has given such directions as it is hoped will produce an amicable adjustment of those claims.
From the circumstance of much time having been necessarily consumed in examining the records and files in this office for evidence to support the claims for militia services rendered under the orders of the President in the years
1792.
3 &
4, I was unable to comply with the directions of the Legislature as embraced in their resolution of the
22d. [22nd] December last in transmitting the memorial upon this subject with the documents, to the President, our Senators and Representatives in Congress until the
15th.. of February following. The Secretary of War acknowledged the receipt of my communication with the documents, and states that, "the President was clearly of the opinion that the whole of the expense of defending the Union ought to be paid out of the General Treasury, and no part of from any particular State." -- I also received a letter from our Senators dated
1st.. March, and


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from one of our Representatives (Doctor Abbot) upon the same subject, dated
6th.. March, which are transmitted; and for the views of the remaining part of the delegation, I refer you to their letter of the
13th.. same month, which is also transmitted. [deleted text: [illegible text] ] The report of the Military committee, made by Mr Elliott to the Senate of the United States, on the
15th.. April, on this subject concluded with recommending a resolution, "That the Military Committee be instructed to report a bill appropriating one hundred and twenty nine thousand, three hundred and seventy five dollars, sixty six cents in full discharge of the Militia claims of Georgia." It was to have been hoped that the adoption of this report would have been urged upon Congress. Claims so just as these, it is believed must and will ultimately be adjusted and paid. In furtherance of which I would recommend that the Legislature again urge the attention of our delegation to this subject.-
The Digest of the Laws compiled by L.Q.C. Lamar Esquire under the authority of the act of the Legislature has been printed and delivered. An appropriate number of


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copies has been distributed, and the surplus copies are on hand to be disposed of as you may direct. The printing of another compilation by Oliver H. Prince Esquire has been contracted for, and will be delivered by the
first day of December next.
The proceedings in the District Court in relation to certain Africans illegally introduced into the United States, are still pending. The contest upon this subject has lately been greatly enlarged by the institution of two suits in Baldwin Superior Court, one in favor of the creditors of William Bowen, and the other in favor of Bowen himself. The first is progressing by way of levy [added text: of ] executions upon the thirty five Africans now in possession of the State, and the last by action of Trover against the States agent charging a conversion of the whole number, to wit; ninety five. It will be for you to take such notice of these transactions as you may think proper. Thus far the cases have been defended at the instance of the Executive, and the expences [expenses] defrayed by drafts upon the fund arising from the sale of Africans in
1818.
At the request of the Legislature of the State of North Carolina, I communicate their proceedings relative to the appropriation of Public lands by the General Government for the purposes of the Legislature of the State of


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South Carolina, at their request relative to the incorporation of the United States Bank within the District of Columbia; I likewise transmit for your consideration a copy of a letter from the directors of the Pennsylvania Institution for the education of the Deaf and Dumb.
From the records of the commissioners of the Land Lottery in this office, it appears that Lots No. 156.157.158 & 159. in the 5th.. District of Monroe County are not drawn, and are therefore subject to be disposed of as you may direct.
In your enquiries into the revenue and finances of the State, you will no doubt discover the deranged situation of two Friends considerable in amount, and which have no doubt suffered by delay. These are the fraction bonds, and sums in the hands of defaulting Tax collectors. With a view to arrive at some accuracy of information in regard to the former, the last Legislature directed the appointment of commissioners to examine and digest the evidence relating thereto, and to report accordingly. The appointment was made of suitable persons who declined to act. The examination has lately been confided to an individual whose report is expected to be received in a few days, and will then be communicated.
A statement of warrants drawn on the Treasury during the political year


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Eighteen hundred and twenty two, and a list of Executive appointments are herewith transmitted. By the latter document it will be seen that on the
12th.. day of August last Simon Whitaker Esquire was appointed Secretary of State in the place of Abner Hammond Esquire. The causes which led to this exercise, as it is conceived, of a constitutional right and political duty of the Executive, I deem it not improper to submit to your consideration. -- About a month previous to the
12th.. of August last, Mr. Hammond without the knowledge of this Department had absented himself from the seat of government, nor did he intimate to this Department the length of time he intended to be absent, or the place whither he was going. A clerk contrary to the express orders of the Executive persisting in the discharge of the duties of the office, as deputy, acting solely under a letter of attorney from Mr. Hammond and signing his individual name for that of the Secretary, "Thomas H. Crawford for Abner Hammond Secy. [Secretary] of State." -- The absolute uncertainty of the time at which the Secretary would return, it depending upon contingencies which might protract his return to an indefinite period, knowing that there existed no law of the Legislature which would legalize the acts of his clerk, no matter under what authority from his principal he might have acted, Believing that the Great Seal of the State which had been solemnly intrusted to me, and according to the forms


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prescribed, solemnly committed to the safe keeping of the Secretary, had been by him illegally and improperly transferred to a mere boy acting under no oath or legal responsibility -- In [unclear text: fine ], knowing that the office, for the time was vacant, and that it had been vacated to all legal intent by the act of Mr. Hammond himself, and that his long absence, and the uncertainty of his speedy return affording no sufficient ground for the exercise of Executive forbearance in his favor, without a direct and palpable preference to individual convenience, at the expense of Public good and the rights of the community, I deemed it my imperious duty under the 9th.. Section of the 2d. [2nd] Article of the Constitution to resume the Great Seal of the State and confide it to the keeping of a more attentive officer. Mr. Whitaker was accordingly selected to fill that vacancy, and was the day thereafter regularly inducted into office. So far however, as provision could be made to secure Mr. Hammond from all possible injury by this act, his feelings nor his rights were forgotten or neglected; for it was expressly mentioned to his successor, that it would be gratifying to the Executive in the event of his return, that he should resign the office, and that he should retain the clerks then in the office. All this was done with a view to the reappointment of Mr. Hammond. The principal injury sustained by him is attributable to his own indecorous, rude and


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vulgar conduct on his return at his first interview thereafter with the Executive and [deleted text: his successors ] [added text: the person appointed ] . From the document [deleted text: s ] herewith transmitted, it will be seen that this solicited for his welfare was on his part totally unmerited. For years he has been more inattentive to his duties than any officer attached to the State House. He has often been unable from various causes to sign his name, and frequently got some one of the young men in the office to do it for him, If this is allowed of, he need never go into his office, it is therefore communicated for consideration.
Upon a deliberate view of this act, with all the facts and arguments which have been arrayed in its support and opposition fresh in my recollection, I now assert that it was a measure, which I then believed and yet conceive, the interest of the State required and the provisions of the Constitution demanded. That I may have erred from a defect of judgement is possible, for fallibility is the lot of all men, And there are no instruments more variously construed than the characters of our national and State rights. In the formation of my opinion upon the article in question, I sought neither to force a power by implication, or torture words to a meaning not intended for them. -- It is a rule of construction dictated by plain reason as well as founded on legal actions; "That every part of an expression


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ought, if possible, to be allowed some meaning, and made to conspire to some common end". It never could have been intended by the wise frames of that instrument, which was made for the good of the whole community, that the operations of the government might be suspended by the capricious absence of an high officer of State, and that there should exist no redeeming power for such an evil, both speedy and efficient in its operation. Is it not more consistent with the principles which they had in view to construe that power as a political one specially granted and to be exercised at the discretion, under the legal and constitutional responsibilities of the chief Magistrate of the State? Such I conceive to have been the intention, such the specific grant as applicable to the case in question, and such my responsibilities.
As to the question of vacancy or no vacancy, suffice it to say, that I conceive had Mr. Hammond died or resigned on the
12th.. day of August, sofar as regarded the community in the discharge of official duties, it would have had no more effect than did his absence. All these causes alike produce the same consequences to the people, and if, in the one, the protection of the rights of the community should be


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incompatible with those of an individual, the latter must yield.
Although as regards the powers of the Executive whilst acting under oath, I should not conceive precedent in any case as absolutely binding, yet I would be disposed to give to one the most mature consideration. I know of no precedent entirely analogous to the present case. In principle however, the doctrine contended for is conformable to the views and practice of one of my most enlightened predecessors, as will appear by documents herewith transmitted. It is well known to those who were acquainted with the late Governor Jackson, that he having himself been one of the framers of the Constitution, must have understood and regarded its true principles. Under his administration of the government, we find, that he issued orders directing the State House officers not to leave the seat of government without his consent, and dictated the hours they should attend at their respective offices for the dispatch of business. None that knew him will believe that he would issue an order, a nullity in itself, and which he was not empowered virtually to enforce. [deleted text: [illegible text] ]


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That this appointment of the Executive has been, by a separate and distinct branch of the government reviewed and pronounced illegal and unconstitutional, is fully known to you. Not arrogating to myself as a coordinate branch of the government the power to decide upon the constitutional rights of the Judicial Department, I claim to have exercised in this case, the powers properly belonging to and expressly given to the Executive.
The framers of our constitution undoubtedly supposed that in that instrument, they had laid a solid foundation, on which the wisdom of future Legislatures might establish laws securing to their constituents the full and free enjoyment of all their just rights. It devolves upon you to enquire whether that end had been sufficiently attained, if it has not, to devise means by which it may be more effectually secured. Does the Constitution itself require alteration or amendment? It is with you to propose such alterations or amendments, as your wisdom may suggest. Are existing laws adequate to secure to the people the great object of all rightful legislation. The good order and harmonious administration of the government in all its departments according to the true principles on which our Republican institutions rest? If they are not, it is within


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the scope of your functions to apply the corrective, and in the language of the constitution, "to make all laws and ordinances which you shall deem necessary and proper for the good of the State, which shall not be repugnant to the Constitution." With these objects steadily in view, regarding the Constitution as the polar star by which you are to be guided, and believing as you unquestionably do, that [deleted text: [illegible text] ] [added text: a portion of the ] rights of the people were delegated to you to be used for their common good, your deliberations can not fail to result in the adoption of measures but calculated for the advancement of the highest interests and happiness of the people.
Reports from the different Banks in this State, have been received, and with matters of minor importance reserved for future communications.-

[Signed] John Clark





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Communication

Gov John Clark

Senate