- Southeastern Native American Documents, 1730-1842
- Letter, 1830 Aug. 7, Savannah, [Georgia to George R.] Gilmer, Gov[erno]r of Georgia, Milledgeville, [Georgia] / J.W. Jackson
- Jackson, J. W.
- Date of Original:
- Cherokee Indians--Land tenure
Gold mines and mining
Cherokee Indians--Legal status, laws, etc.
- United States, Georgia, 32.75042, -83.50018
- letters (correspondence)
- Letter dated August 7, 1830 from J.W. Jackson, Solicitor General for the East District, to George R. Gilmer, Governor of Georgia (1829-1831, 1837-1839). Jackson provides a lengthy legal opinion on the events surrounding the extension of Georgia jurisdiction over the Cherokee territory and the subsequent influx of unauthorized gold diggers on the ungranted land. Jackson quotes extensively from several sources to emphasize his belief that the trespassers' presence constitutes an insurrection in that it is a direct violation of an executive order forbidding the occupation of said territory. He urges Governor Gilmer to use military force to remove the trespassers, though he does not acknowledge any Cherokee claim to the land. Rather, he argues that the Cherokees occupy said territory by the permission of Georgia alone and all state laws and statutes are applicable to all areas within its borders.
Digital image and encoded transcription of an original manuscript, scanned, transcribed and encoded by the Digital Library of Georgia in 2001, as part of GALILEO, funded in part by a grant from the Institute of Museum and Library Services.
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- Bibliographic Citation (Cite As):
- Cite as: [title of item], Telamon Cuyler, Hargrett Rare Book and Manuscript Library, The University of Georgia Libraries, presented in the Digital Library of Georgia
- 6 pages/leaves
- Original Collection:
- Manuscript held by the Hargrett Rare Book and Manuscript Library, The University of Georgia Libraries, Telamon Cuyler, box 49, folder 09, document 03.
- Holding Institution:
- Hargrett Library
Augt. [August] 7. 1830 --
The Governor of Georgia --
In answer to your Excellency's letter of the
27th July, I have the honour [honor] now to advise you that there may be cases of Trespass intended on the public property where it is competent for the Executive to call out the Militia. In every case the circumstances and the number and design of the disaffected are to be considered to enable the Governor to determine whether or not an insurrection has occurred. Agreeing with your Excellency that the power to call into service the Militia is limited to the exigencies of "invasion, insurrection, and the probable prospect thereof," I suggest that [deleted text: that ] the term "insurrection" is not limited to a rising of people in force for the subversion of Government, but extends to and embraces "a rising against civil or political authority". Webster's folio dictionary, word insurrection. It has no defined legal meaning; and we cannot therefore verify its existence by referring the facts to a technical definition. If the intended trespass be in opposition to "civil or political authority" I conceive a rising, an assemblage in strength, to effect it, to constitute an insurrection. If a thousand misguided Citizens, opposed to the present seat of Government, were assembled with the avowed object of marching to, and entering, Milledgeville, and dilapidating the public buildings, it is inconceivable that the Executive, whose oath compels him to "preserve, protect, and defend the State," and who to do so is constitutionally "commander in chief of the army and navy of this State and of the Militia thereof." could not constitutionally call
into service the Militia to "preserve protect and defend the State" from a trespass, which the Magistrate's Warrant and the Sheriff's exertions would idly attempt to prevent, and [added text: for ] which, after its commission, the courts of Justice could render no adequate retribution. -- I cannot think that the Governor, especially after proclamation made for dispersion, should rest, with folded arms, on the ground that for every stone hurled to the [deleted text: ground ] [added text: earth ] damages might be rendered, or for the riot penalties inflicted, by a Court of Justice. An Insurrection would exist, having for object a trespass, not less a trespass because treasonable a rising against the power of the Legislature, that "political authority" which had established the seat of Government, and continued in opposition to the Executive proclamation which ordered the dispersion, an act of competent "civil authority"; and a case presented when the military power might be legally employed. Similar cases, of equal reason and necessity, could be offered. I conclude then that there may be cases of intended trespass, supported by "insurrection," [unclear text: when ], for protection, the Militia may be raised; and if for protection, a fortiori to compel relinquishment, and ensure discomfiture, when the act of trespass is in actual commission.
The circumstance that the lands in the occupancy of the Cherokees are ungranted does not appear to me to be important. The sovereignty of the State is coextensive with her chartered limits; and her absolute right to the allodium, as well as Jurisdiction, cannot be successfully denied. The Indian title is permissive -- at the permission of Georgia alone -- the soil, and
the mines within it, are Georgia's. Possessing this absolute property, can the Militia be employed to protect it from trespass? They can, I conceive, if there be, upon any part of the ungranted lands, "a rising against the civil or political authority" of the State, equivalent to insurrection. The common law gives to every owner of land, a right to the undisturbed enjoyment of his freehold. If molested, he has a right, after a caution to depart, to use that degree of force "which is reasonably necessary to accomplish the lawful purpose" or removing the trespasser. This principle is law in Georgia, and by the act of
19th Dec. 1829, all her laws both civil and criminal are extended over the territory. This is a public act of which every man is bound, at his peril, to take notice. It is an act of "political authority." Your Excellency's proclamation of the
3d June 1830 was one of "political and civil authority," in conformity with your oath, and the principle cited. The employment of your agent Colo [Colonel] King, and all he did within his instructions, were additional acts of "civil authority". In opposition to the common law principle, extended over these lands by the Legislature, in defiance of your proclamation of the
3d June 1830, and regardless of the monitory exertions of Colo [Colonel] King, "four or five thousand persons have lately entered upon the land occupied by the Cherokees within the limits of Hall County, and are employed in taking gold therefrom." I advise your Excellency that this is "insurrection" although the object be but trespass; because it is a "rising against the civil and political authority" of the State -- it is an insurrection against which the civil authority can make no
effectual resistance, against which warrants and attachments are of no avail, for the acts of which the Courts of Justice can give the State no redress, and to repress which it is competent for the Governor to order out the Militia.
But "insurrection" is also defined to be "the open and active opposition of a number of persons to the execution of law in a city or State." See the authority above quoted. Whatever reason there may be to doubt upon the preceding questions, I have no hesitancy in advising your Excellency that "the resistance of the gold diggers in such numbers as to overcome the efforts of the Sheriff to execute the orders of the Superior Court" does amount to insurrection. I presume that for violation of the Writ of Injunction issued by Judge Clayton, Writs of attachment have been issued. And that the Sheriff of Hall has been resisted; that your Excellency contemplates a call by the Sheriff of the "posse"; and that in the event of his inability, with his posse, to arrest the persons against whom [deleted text: these ] attachments were issued, a resort to military force may be necessary. Here is the union of all the constituent properties of insurrection. By open and active opposition, thousands of persons resist the execution of the law within the State of Georgia . And that resistance of such a character that all the evidence of it is presented which the mind would require -- the [unclear text: return ] of the Sheriff upon the writs, and [unclear text: stating ] his [added text: ineffectual ] use of the "posse comitatus." By open and active opposition, thousands of persons in the interior of Pennsylvania, in
1794, resisted the collection of duties, and otherwise opposed the executin [execution] ,
by the Marshal, of a law of Congress imposing a duty on domestic spirituous liquors. The Militia were called out by President Washington, and the insurrection was suppressed. Resistance there to the Inspectors and Marshal was not more flagrant, and not the hundredth part so iniquitous [deleted text:, ] as the contemplated resistance of the Sheriff of Hall and his Posse. Nor is there any thing more sacred in a law for the col [document damaged] lection of a duty on Whiskey, than in one which secures to the State of Georgia the enjoyment of her property. If there be any act of political authority which should be more sedulously guarded than another, it is the order, the writ, of a Court of Justice. When inoperative by reason of the numbers opposed, or of the force used, force must be opposed to force, or there is virtually a dis [document damaged: s ] olution of Government. The Citizen entitled by the laws to their advantage, does not enjoy it, relapses, as it were, into a State of nature, and resorts to those means of redress which nature has given him. To prevent this, the law furnishes its own support, declares the existence of insurrection, and authorizes the Chief Magistrate to use the physical -- the armed-power of the State. If this be true when resistance is made to a Writ which proposes atonement for a wrong suffered by a single Citizen, not less true is it in reference to the rights of the State. --
I am with the greatest respect &c &c [et cetera et cetera] --
[Signed] [unclear text: Jerephin ] Jackson Solr Genl E [Solicitor General East] District.
[ Note: A postmark appears at the top of the page.; SAVANNAH
AUG 7 [illegible text] ] 18
His Excellency Govr. [Governor] Gilmer Milledgeville
7th. August. 1830
J.W. Jackson Savannah
7th August 1830.