CHAPTER XIII

1826-1827.

BANKRUPT LAW-CASE OF OGDEN 28. SAUNDERS-DIFFICULTIES IN GEORGIA-COLONIAL TRADE-SPANISH CLAIMS.

AT

T the second session of the Nineteenth Congress, which commenced in December, 1826, Mr. Webster, as chairman of the Judiciary Committee of the House, reported a bill for the establishment of a uniform system of bankruptcy, which he had founded on a bill received from the Senate at the last session, and into which he had also very carefully incorporated such provisions of the recent English bankrupt law as were applicable in this country. At this precise time, the condition of the question, as to State laws of insolvency discharging debtors from their contracts, was, that the Supreme Court of the United States had already decided that such laws are constitutionally invalid to discharge contracts made before their pas sage; but the question in relation to their effect on contracts made after their enactment was now pending in that court, and was expected to be argued at its approaching session. Mr. Webster said, however, that, whatever might be the decision of this question, it would not deter him from laboring to obtain the adoption of a national system of bankruptcy. The Constitution having given to Congress power to regulate this subject, he was always of opinion that there should be a standing bankrupt law, to operate uniformly throughout the country. His bill was read a second time, and referred to a Committee of the Whole, but it was not acted upon.

It may be stated in this connection that in the case of Sturges vs. Crowninshield, decided by the Supreme Court of the United States in 1819, it had been held that a State law, which undertakes to discharge debtors from contracts made before its enactment, is a law that impairs the obligation of a contract, and is, therefore, prohibited by the Constitution of the United States. The question presented in the case of Ogden vs. Saunders, which was argued in the Supreme Court at the January term, 1827, and in the discussion of which Mr. Webster took part, was whether a contract, made after the passage of a State law which undertakes to discharge debtors on a surrender of their property for distribution among their creditors, is not equally within the prohibition of the Federal Constitution. Mr. Webster argued against all this distinction between past and future contracts, maintaining that it was the purpose of the Constitution to prohibit State Legislatures from passing any law impairing the obligation of any contract, and that a law which discharges a debt, whenever contracted, in the constitutional sense impairs its obligation. He contended that Congress alone is vested with authority to discharge from the payment of debts, as Congress alone can provide the medium in which a debt is to be paid.' But a majority of the judges held that an insolvent law of a State does not impair the obligation of future contracts between its own citizens."

At this session it became necessary for Mr. Webster to take a very firm and decided stand in relation to a dangerous controversy that had sprung up between the United States and the State of Georgia. In 1825 a treaty had been made between the United States and the Creek Indians, at a place called Indian Springs, by which that tribe had ceded to the United States their title to certain lands lying within the limits of the State of Georgia. If this treaty had taken effect, the lands, pursuant to an agreement between Georgia and the United States, would have become the property of Georgia. But, previous to the period assigned for

See the argument in the case of Ogden vs. Saunders. Works, vi., 24, et seq.

Chief-Justice Marshall and Mr. Justice Story dissented from the opinion of

the operation of this treaty of

the majority, and were of the same opinion with Mr. Webster in respect to the meaning of the Constitution. See 12 Wheaton's Reports, 218.

Indian Springs, the Creek nation complained to the Government of the United States that it had been negotiated by persons not duly authorized, and that they were dissatisfied with its provisions. A new treaty was thereupon negotiated and ratified, the first article of which declared that the treaty of Indian Springs was annulled. In the mean time, however, the State of Georgia, claiming that the first treaty had operated to vest in her the lands embraced in it, and now contending that the later treaty had not divested that title, and also claiming that, if the former treaty had been annulled, the repeal did not operate upon the whole tract, sent surveyors upon a certain portion of the territory to lay out the lands as part of the property of the State. By the last treaty, the United States had guaranteed to the Indians protection in all their lands lying beyond a certain line, which was the line over which the officers of the State had now encroached; and there was an existing law of the United States which punished the acts of citizens of the United States, whether as trespassers or as surveyors, who should interfere to run lines on lands guaranteed by treaty to the Indian tribes. The State had threatened to support its officers by military force, and the Government of the United States had no alternative, if this course were persisted in, but to repel the aggression by the same means.

In this posture of the affair, President Adams sent a message to Congress, communicating the facts, intimating with great distinctness what it might become his duty to do, and submitting to Congress to determine whether further legislation was necessary to meet the emergency.

The reading of this message in the House was followed by an excited discussion, in which Mr. Forsyth, of Georgia, and other members, resisted all reference of it to any committee, but, 'f it should be determined to refer it at all, they insisted that it should go to a Committee of the Whole, or to a Select Committee, and not to the Committee on the Judiciary. The course of the Administration was denounced as "infamous; and it was boldly asserted by a member from Mississippi that his State would extend its legislative power over the Indians within its limits, and at its own pleasure. Mr. Webster having said that the States would so act at their peril, he was assailed

as the organ of the Administration fulminating threats against sovereign States. He then felt it to be his duty to come forward and carry the reference of this message through the House with a firm hand. Repeating the rebuke he had already administered, he explained the peril which a State would incur by resisting the execution of a treaty of the United States, stated both sides of the question between Georgia and the United States with equal fairness, and confessed his willingness to appropriate money to extinguish the Indian title to the lands in controversy. But he demanded a reference of the message to a Select Committee, and carried it without a division of the House. The following extracts from his remarks will exhibit the manner and the spirit with which he met the attack:

“Mr. Webster said, on rising, that he was not much concerned what course this communication should take, or whether it should be referred to one committee or another; but he was not contented that it should be supposed, either here or elsewhere, that there existed an entire unanimity of opinion with the gentleman from Georgia on this subject. The gentleman from Georgia must know that there were two sides to this question between Georgia and the United States; and he would tell the gentleman from Georgia that there existed two opinions also, not only on that question, but on the conduct which that gentleman had designated as 'base and infamous.'

"This, Mr. Webster said, was strong language, but not argument. The gentleman had told the House that nothing prevented every thing from going right in Georgia but the interference of the General Government. The gentleman denounced such interference, saying in effect, 'Hands off for the present; leave the Indians to the remedy of the courts.' But, Mr. Webster said, he would tell that gentleman, that if there were rights of the Indians, which the United States were bound to protect, that there were those in the House and in the country who would take their part. If we have bound ourselves by any treaty to do certain things, we must fulfil such obligation. High words will not terrify us-loud declamation will not deter us from the discharge of that duty. For myself, the right of the parties in this question shall be fully and fairly examined, and none of them with more calmness than the rights of Georgia. In my own course in this matter, I shall not be dictated to by any State, or the Representative of any State on this floor. I shall not be frightened from my purpose, nor will I suffer harsh language to produce any reaction on my mind. I will examine with great and equal care all the rights of both parties. Occasion had been taken on the mere question of reference of this communication, he would not say for argument, but for the assump

tion of a position, as a matter perfectly plain and indisputable, that the Government had been all in the wrong in this question, and Georgia all in the right. For his own part, Mr. Webster said, he did not care whether the communication did or did not go to a Committee of the Whole on the state of the Union, nor how soon it went there, and was there taken up for discussion. When he went into that committee, he should go there not in a spirit of controversy, nor yet in a spirit of submission, but in a spirit of inquiry, calmly and deliberately to examine the circumstances of the case, and to investigate the rights of all parties concerned. But he had made these few remarks to give the gentleman from Georgia to understand that it was not by bold denunciation, or by bold assumption, that the members of this House are to be influenced in the decision of high public con

cerns.

"The gentleman from Mississippi had reason to know that he (Mr. Webster) was disposed to use all proper authority of the United States to extinguish Indian titles to lands within the States. But he must tell the gentleman from Mississippi that the States would act on their own responsibility, and at their own peril, if they undertake to extend their legislation to lands where the Indian title has not been extinguished. If any such measure was contemplated in the State which the gentleman represented, Mr. Webster hoped that gentleman would lose no time in warning his friends against making any such attempt. The relation which the United States held to these tribes, of parental guardianship over the remnant of mighty nations now no more, was a very delicate relation. Its general character was that of protection, and, while every facility was given to the extinguishment of the Indian title, let not that circumstance be so far presumed on that the States should attempt to exercise authority within the Indian limits. Any such course would be attempted at their own responsibility. Mr. Webster concluded by saying that he was ready to do all that could be done to extinguish the Indian title in the States, and particularly in the States east of the Mississippi. But this disposition, common to all parts of the country, should not be so far presumed upon as that any State should undertake of its own mere motion to exercise an authority over the lands to which the Indian title is guaranteed by treaties."

In the course of this discussion on the Georgia controversy, Mr. Forsyth, speaking of Mr. Webster, referred to "the great and commanding influence which he too often exercises here." That influence had to be again exerted on the introduction of a bill from the Senate regulating the very difficult and complicated subject of trade with the British colonies. The bill had been framed, as Mr. Webster thought, with an insufficient comprehension of a system of laws that extended back to the year 1818. It provided that, if, before the 31st of December,