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H. of R.]

Pennsylvania District Courts-On Drawback Duties.

[FEB. 11, 1825.

the greater part of the causes tried before the Philadel- Mr. WEBSTER, of Massachusetts, (Chairman of the phia Circuit, are ejectment cases, in which the question Committee on the Judiciary,) complimented the zeal of survey, or no survey, always occurs. Such a question and perseverance manifested by the gentleman from can be made out in ordinary cases only by aged witness- Pennsylvania, as well in the committee as in the House, Defendants are for the most part poor peuple-in prosecuting this object, which he semed to consider as important to his constituents. He then stated the reasons why the Judiciary Committee had not thought it a proper subject for legislation. He explained the present situation of the United States' Courts in Pennsylvania, which the committee considered as well adapted to the general conveniences of that state. The instruc tions seemed directed chiefly to promote the conve nience of defendants in the Eastern district. Ought not the House to hear something from the plaintiffs in these causes? At present, it knew not what the causes were whether they had been tried, whether any verdicts were obtained, whether there were any demurrers, or what was the number of the suits. Even in the small states, the parties had frequently to go as great a distance to court as in the present instange, and, where that distance was greater than one hundred miles, the laws of the United States provided for taking the testimony in writing.

the plaintiffs, capitalists, either foreigners or persons residing in another state. Mr. E. insisted upon the hardness of compelling these defendants to attend a court one hundred and fifty miles distant, with all his witnesses, who were necessary to prove his settlement, who must be obtained at great expense, and without whom he must lose his cause. This, when the defendant was a poor man, was in effect to deny him a fair trial. Congress had done the same thing in repeated instances, to some of which he referred. He knew that it might be said, that this would be legislating on vested rights. That the parties suing in the Eastern District had certain rights which pertained to them as litigants, and which would be invaded by removing their causes to a different District. Mr. E. combatted this sentiment he insisted that this was not removing their causes to a new tribunal, but trying them in the same kind of a court as that at Philadelphia. As to the objection that counsel had received their fees, this was a personal consideration, with which Congress had no concern. County lawyers were as capable of conducting their suits as those who resided in the city. Agents had been employed, and they must attend wherever the causes might be tried. He trusted the House would not be governed by reasons of this kind-that they would not seek to accommodate the rich at the expense of the poor. What was the very spirit which governed the administration of all laws? That the plaintiff must bring his suit to the defendant, and not the defendant to the plaintiff: So that the exclusion of the present causes from the Western District, was in reality the only novelty, and not their trial there. There was another branch of the instructions on which he wished to submit a few observations. When the court met at Williamsport, one of the first questions which arose, respected the organization of the court. On examining the law, it was found to contain no provisions for a clerk; they did not ask for a judge, or an attorney, or a marshal-all they asked was an efficient organization, and to this a clerk was necessary. Writs, at present, issue from the court at Pittsburg, and are made returnable at Williamsport, and it has been made a question at which of these places the record should be made up. For himself, he believed it might be made up at Williamsport; but, at present, they had to seek a writ from a place two hundred miles off. What they required was a clerk, in order that process might issue at Williamsport, and be made returnable there. It might be said that this was within the power of the judge, but that had been questioned by some, and it was with a view of quieting all doubt on that subject, that he had added the latter branch of the instructions he proposed to give to the Judiciary Committee. He trusted that the House would not put in competition, with the convenience of one-fifth, at least, of the population of Pennsylvania, the paltry sum of $200 a year to pay the salary of a clerk. He had heard it remarked in conversation, that this would be legislating for the personal convenience of a few, but he asked whether, if it was proper to add the eight counties to the Western District, it was not proper, also, that the causes of those who resided in these counties should be removed into that District.

Mr. LITTLE, of Md. made a few remarks in opposition to the instructions moved by Mr. ELLIS; and

Mr. McKIM, of Md. moved the following amendment, to be inserted after the word "Williamsport:"

"Provided, That the parties who may have causes pending and untried before the District Courts of the Eastern District of Pennsylvania, shall mutually agree to the removal of the same to the Court of the Western District, held at Williamsport."

Mr. W. concluded his remarks, by moving to lay the instructions, together with the amendment thereto, on the table; but withdrew the motion, at the request of

Mr. ELLIS, who suggested, that the remarks of the gentleman from Massachusetts, although they might be thought conclusive against the first branch of the instruc tions had no reference to the second.

Mr. WEBSTER observed, in reply, that the second branch was useless, inasmuch as the power already resided in the judge to have the record made up where he pleased, and to appoint as many District clerks as he pleased.

Mr. ELLIS intimated some doubt on this subject, and Mr. WEBSTER explained.

Mr. ELLIS was proceeding, when the Speaker reminded him that the question before the House was simply on the amendment. Mr. E. made some further remarks, in opposition to the amendment; when, On motion of Mr. WEBSTER, the whole subject was laid on the table.

CONCERNING DRAWBACKS.

The House having, on motion of Mr. CAMBRELENG, proceeded to the consideration of the bill authorizing the Secretary of the Treasury to direct the completion of entries for the benefit of drawback after the period of twenty days

Mr. FOOT, of Connecticut, moved to amend it in the first clause, which is as follows: "That, whenever the exporter or exporters entering any goods, wares, or merchandise, for the benefit of drawback, shall not have completed such entry by taking the oath, or giving the bond required by the existing laws of the United States, within the period prescribed by law, but shall offer to complete the said entry after the expiration of the said period, it shall and may be lawful for the Secretary of the Treasury, upon application to him, made by the said exporter or exporters, setting forth the cause of his or their omission, under oath, and accompanied by a statement of the collector, of all the circumstances attending the transaction, within the knowledge of such collector, if he shall be satisfied that the failure to complete the said entry, was accidental, or without any intention to evade the law, or defraud the revenue, to direct the said entry to be completed, and the certificates or debentures, as the case may be, to issue, in the same manner as if such entry had been completed within the pe riod prescribed by the existing laws of the United States," by striking out the words "taking the oath or."

Mr. CAMBRELENG, of New York, observed, that, if the amendment proposed by the gentleman from Cannecticut should succeed, the bill would amount to a mere nullity. The cases in which merchants were una

FEB. 11, 1825.]

On Drawback Duties.

[H. of R.

ble to take the oath were as numerous as those in which this reimbursement of duties subjected the Treasury to they were unable to give the bond, and so frequent were frauds, against which the law contains careful provisions. both that there had not occurred a single week, during The goods must be exported within the year, and in the the present session, in which he had not presented to same casks or packages; must be laden in the presence the House one or more petitions from merchants so si- of an officer; 24 hours' notice must be given of the intuated. Surely, if the Secretary of the Treasury has tent to export; entry must be made, specifying the mernow power to cancel the bond itself, when given, there chandise particularly, and annexing the oath of the imcan be no great danger in giving him power to remit porter as to the due importation, and that the duties were the penalty incurred by not giving the bond within a paid or secured-then, and not until then, is a permit certain number of days. This power was to be exercis- given to lade for exportation. But this is not all; before ed by the Secretary only when he should be satisfied the debenture (which, as the House knows, is the inthat the individual applying to him had a good and suf-strument which entitles the exporter, or his assigns, to ficient excuse for not having taken the oath and given receive the amount of the duties paid) can be received, the bond, within the twenty days prescribed by law. the exporter must make oath that the goods so laden That officer is already clothed with power to remit al- are intended to be exported, and he must give bond, in most every other forfeiture provided by our revenue double the amount of the debenture, that the goods laws. The restriction which obliges the merchant to shall not be relanded in the United States, and that he make oath and give bond within twenty days, was co-will, within a specified time, produce proof that they pied from the laws of England-a country which is not have been landed in a foreign country. The law now more than twenty miles distant from the coast of France, gives the party twenty days, after obtaining the clearand which is, therefore, peculiarly exposed to frauds, ance, to take this oath and give this bond; and these on the subject of drawback. We are not so situated. two formalities alone are the subject of the present bill, The restriction was a substantial measure in England; which does not abrogate them, but provides only that, with us, it is, in a great degree, a matter of form. The in case they are not performed within the time, the Secases were numerous, and of daily occurrence, in which cretary of the Treasury may permit them to be done afit is physically impossible that this part of the law should terwards, in cases, and such cases only, where the debe complied with. A merchant may die-when it is lay has proceeded from accident, without any design to manifest that he can neither take oath or give bond. defraud. I pray the House to remark, that the bill does Yet his executors cannot obtain the debenture, which is not authorize him to dispense with the oath or the bond, justly due to his estate, without coming all the way to but only to permit the one to be given, and the other to this House, at the risk of waiting here, from year to year, be executed, after the time when all the other formalibefore they can get leave to take the oath or to give ties have been executed. All those which are enumerthe bond required. Mr. C. stated several cases of pecu- ated are intended for the security of the United States, liar hardship which had occurred within his own know- to prevent the substitution of goods to their injury, to ledge. prevent the relanding of them, or other frauds. But these two can never be designedly omitted after the others have been performed, because, until the oath is taken and the bond given, the debenture is not issued, and the exporter gets nothing.

Mr. LIVINGSTON, of Louisiana, said, that, standing in the same situation with the gentleman from New York, who had last spoken, he was obliged to address the House on the subject of this bill, which would give relief to some of his constituents, who were clearly entitled to it, and, at the same time, relieve the House from the task of examining private claims, and the country from an expense attending such examination, necessarily greater, in many instances, than the amount demanded. The amendment proposed went to defeat the bill, and he was persuaded that the gentleman from Connec-law, from making the oath and giving the security, ticut would not have offered it had he duly considered the necessity of giving relief to the numerous applicants, and the time, expense, and difficulty of conducting the examination in this House.

Now, in numerous instances, and several are now before a committee of the House, sometimes accident, sometimes death, and sometimes the neglect of the Custom House Clerks, have deprived the party of the power, after paying or securing the duties, and re-exporting the merchandise, with all the forms required by which could alone entitle him to the debenture. In all these cases, recourse must now be had to this House. The petition must be read and referred, the committee must examine and report, the House must debate, and In order fully to understand the bill, it was necessary if, at the end of two or three years, the unfortunate to refer to the nature of the drawback of duties, and to merchant can procure his case to be considered, we are the provision made for preventing fraud in granting it. obliged to give him an order to receive the amount of Duties, Mr. L. said, were levied, on the supposition that the duties he has paid, after having put our constituents the merchandise, on which they were paid, was intend to an expense equal, in many instances, to ten times the ed for consumption within the United States. It was a amount of the sum demanded. I say we are obliged, tax paid by the importer, in advance, for the consumer, sir, because the money we have received is not ours. on whom it ultimately fell. As it was uncertain, how- The duties were paid under the faith of your law, which ever, at the moment of importation, whether the mer- directed that they should be repaid on their being again chandise would be consumed or re-exported, the import-exported, on conditions which, if only unperformed er was bound to pay or secure the duties; but, in order through accident or necessity, cannot be enforced, conto give him a reasonable time to execute his purpose of sistent with the dictates of justice. re-exportation, or to deliberate whether it would be more to his advantage to sell here or to try a foreign market, the law provided, that if, within twelve months after the introduction of the merchandise, the importer chose to export it, the government would refund to him (with a small deduction) the duties he had paid or secured.This was not only just but profitable. It gave a freedom to trade, which was highly advantageous. It made the country an entrepot for commodities not of our own produce, and enabled our merchants to supply one foreign nation with the merchandise of another, as their Wants might require. It cherished the shipping interest, and was essential to every operation o commerce. But

VOL. I.-36

Now, the bill proposes a remedy for this expense, for this delay, which is equal to a denial of justice, to this interference of private claims, of affairs of fiscal detail, with the public business of the nation: and the remedy is not an unusual or a dangerous one. Already, by law, the officer at the head of the Treasury is authorized to remit all fines and penalties for offences against the revenue, when he is convinced they have not been incur red with intent to defraud. Without any restriction as to amount, even where the courts have condemn d, he may interfere and give relief. Nay, in the very subject now under discussion, a much more extensive and im. portant discretion is confided to him-the important fact

H. of R. & Sen.]

On Drawback Duties.-Georgia Militia Claims.

of the landing of the goods in a foreign country-that on which alone the right to the repayment of the duties is founded; that fact is directed to be proved by specified evidence, in order to avoid the forfeiture of the debenture bond; yet if that evidence cannot be procured in the mode prescribed, and the Secretary is convinced there is no design to defraud, he may, and he every day does cancel such bonds. What reason, then, can be given, for allowing the authority in the most extensive case, and refusing it in the most restricted; for allowing it in cases where, if he is imposed on, great loss may be incurred to the revenue, and denying it where there can be none.

[FEB. 11, 14, 1825.

a subordinate officer, will you refuse to the head of the
Department a power which relates merely to form? It
has been a mere oversight in the law not to make this
provision. The House need entertain no fear that laxi-
ty will arise in the revenue laws. It is the interest of
the merchant to take the oath, and to give the bond
within the time prescribed by law. The present act
imposes upon him a great burden, and one which he
will always be glad to shun when it is in his power.
The question was then taken on Mr. FOOT'S amend-
ment and lost.

Mr. FOOT, of Conn. then moved to amend the bill, by inserting, after the word "entry," the words "within thirty Mr. L. said, as the Representative of an important com- days." He protested against the idea of his being an ene mercial city, some of whose respectable merchants had my to merchants, (it would be strange if he were, after already incurred losses for want of the enactment of a spending half his life in mercantile pursuits,) but he law like the present, and where all, even the most pru- thought that this House should not only look to the merdent, were not secure from similar accidents, he felt him-cantile community, but was also bound to guard the Trea self constrained to make the observations he had offered, sury. He felt great confidence in the honor and honesty and which he hoped might show the propriety of nega- of American merchants, but this ought not to induce us tiving the amendment. to remit any thing of the strictness of our revenue laws. Honest men would not object to these guards, and rogues needed them. The effect of his amendment would be to extend the time of entry from twenty days, as it now stood, to fifty. He approved the object of the bill, and only wished to guard against fraud.

Mr. FOOT replied, that he had no objection to the object which gentlemen wished to obtain by this bill. But he thought the bill went much further than the attainment of this object. It would operate virtually as a repeal of our whole system of laws with respect to drawback. Mr. F. argued from the language of the bill, that it would place in the Secretary of the Treasury, if not the formal power of legislation, at least the power of deciding whether the law shall be obeyed or not. It allows the entries to be made at any time after shipment; it assigns no limits for the time, not even the limit of a year, as is required by the present law. But if the bill must pass, let us require at least, that the oath must be taken. We then have evidence that it was the inten tion of the merchant that the goods should not be relanded.

Mr. M'LANE, of Delaware, (Chairman of the Comnittee of Ways and Means,) stated, that that committee ad long had that subject under deliberation; that he had himself had frequent conversations with the Secretary of the Treasury in relation to it, and that the bill was now brought forward with the design to prevent the waste of the time of this House, as well as to promote the benefit of the person in whose favor it was to operate. He concurred in the sentiment that the amend. ment would defeat the bill.

Mr. WEBSTER thought there was no necessity for the amendment, but that the subject might safely be committed, as all the other branches of the act were, to the discretion of the head of the Treasury.

Mr. M'LANE and Mr. FOOT made a few more remarks in explanation, when the amendment was lost, and the bill ordered to be engrossed for a third reading. And the House adjourned to Monday.

IN SENATE-MONDAY, FEBRUARY 14, 1825.
The following message was received from the Presi-
dent of the United States:
To the Senate of the United States:

I herewith transmit a report from the Secretary of War, with a report to him by the Chief Engineer, of the examination which has been made by the Board of Engineers for Internal Improvements, in obedience to their instructions, of the country between the Potomac and Ohio rivers, between the latter and Lake Erie, between Mr. M'L. stated that the bill did not dispense with any the Raritan, between Buzzard's and Barnstable bays, and the Alleghany and Schuylkill rivers, the Delaware and of the ceremonies at present required by the revenue the Narragansett roads and Boston Harbor, with explan laws. It left these wholly untouched, but it supposed atory observations on each route. From the view which that, through accidental and unavoidable causes, a per- I have taken of these reports, I contemplate results of son, equitably entitled to drawback, may have innocent incalculable advantage to our Union, because I see in ly omitted some of them. He brought forward and en- them the most satisfactory proof, that certain impedi forced the argument which had been urged by the gen-ments, which had a tendency to embarrass the intertleman from Louisiana. The bill only proposes to change the tribunal, to which the applicant must appeal, and to substitute, in the room of this House, the Secretary of the Treasury. He put the case of an individual who is entitled to receive 1000 dollars drawback; he must come to this House with all his witnesses-he must attend from day to day on committees-before he gets through, it will cost him 1000 dollars, and, after all, the House will really decide upon the word of that committee, and not upon its own knowledge; and, in truth, it was extraordinary that the provisions now proposed, had not been made long since. In many cases, the giving bond within twenty days, is a mere form. In West India voyages the goods are often landed within that time. The substance of the requisition was, that the goods should be landed in a foreign port, and that the certificate of this should be produced before any debenture was given: unless this was forged, there could be no danger of fraud. Yet, it was a remarkable fact, that this essential proof might be dispensed with by the Comptroller of the Treasury. While such a power is given to

course between some of its most important sections, may be removed without serious difficulty, and that facilities may be afforded in other quarters, which will have the happiest effect. Of the right in Congress to promote these great results, by the appropriation of the public money, in harmony with the states to be affected by them, having already communicated my sentiments fully, and on mature consideration, I deem it unnecessary to enlarge at this time.

Washington, Feb. 14th, 1825.

JAMES MONROE.

HOUSE OF REPRESENTATIVES.—SAME DAY. GEORGIA MILITIA CLAIMS. On motion of Mr. TATTNALL, of Georgia, the House then took up the report of the Committee on Military Affairs, adverse to the Georgia Militia Claims; and the question being on recommitting it to that committee with the following instructions:

"To report a bill making an appropriation for the pay

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ment of the Georgia Militia Claims for the services rendered in the years 1792, 1793, and 1794 the appropriation to be conformed to the report of the Secretary of War, made to this House upon the subject of these claims in the year 1803, and to embrace each class of claims respectively, as described by that report:"

Mr. TATTNALL of Georgia, observed, that, although the grounds of the claim, now under consideration, had been already fully presented to the view of the House by one of his colleagues, during the present session, yet, as some weeks had since elapsed, it was perhaps necessary again to recapitulate them. He should, therefore, in as brief a manner as possible, proceed to do so. From the documents which have been furnished, it appears, said he, that the facts connected with this case, are, that, in the years 1792, 3, and 4, the militia of Georgia were called out for the defence of the frontier against the hostilities of the Indians; that these militia were called out, in some instances, under the exercise of discretionary power by the Executive of that State; that the Federal Executive, at some moments, gave his express sanction to the exercise of such power; but, at other moments, seemed inclined to limit the extent of the force to be employed in defence; that, hence, some doubts arose as to the liability of the General Government to pay for all services to the extent to which they were rendered; that, subsequently, when the original liability of the General Government seemed to be conceded, it was contended that a stipulation contained in the "Articles of agreement and cession," entered into between the United States and Georgia, in 1802, was intencied to embrace this claim, and that, therefore, the General Government is at this time fully discharged from its previous obligation. This, sir, will be deemed to be a fair and frank statement of the facts of the case.

[H. of R.

country. But, from the circumstances of the late depredations on the frontier of Georgia, it is thought expedient to increase the force in that quarter for defensive purposes." In the letter of the 10th June, 1793, from the same individual, there is this remarkable passage:"The State of Georgia being invaded, or in imminent danger thereof, the measures taken by your Excellency may be considered as indispensable. You are the judge of the degree of danger and of its duration, and will undoubtedly proportion the defence to the exigencies.The President, however, expresses his confidence, that, as soon as the danger which has induced you to call out so large a body of troops shall have subsided, you will reduce the troops to the existing state of things, provided the safety of the frontier will admit the measure."And so threatening did the Secretary of War seem to regard the danger, that he even supposed the militia of Georgia might not be competent to the defence of the State, and therefore authorized the Governor to apply to the Executive of South Carolina for aid. He, at the same time, addresses a communication to the Governor of South Carolina, of which the following is an extract: "The President of the United States has received authentic information from Georgia, of the unprovoked and cruel outrages of parties of Creeks upon the frontiers of that State; and, as it is at present uncertain to what degree the evils complained of may be extended, the President has directed me to request your Excellency, that, in case the frontiers of Georgia should be seriously invaded by large bodies of hostile Indians, you would, upon the request of the Governor of said State, direct such parties of the militia of South Carolina to march to the assistance of Georgia as the case may require, for the expenses of which the United States will be responsible" Surely, sir, this ought to convince every one that the General Government considered the situation of Georgia as seriously alarming, and that it was inclined to repose every degree of confidence in the discretion of the Governor of that State. The Governor of South Carolina is requested to comply with his requisition-and here, sir, I would put it to the candor of my honorable friend from South Carolina, the Chairman of the Military Committee, to say if such requisition had been made, and if the Governor of South Carolina had complied with it, could he have felt himself authorized to refuse to pay the troops for their services? This is, perhaps, sir, very much of an argumentum ad hominem, but my friend must excuse me here for it. The case is a simple one; the Federal Government authorize the troops to be called out if necessary-prescribe that necessity to be judged of by the Governor of Georgia-the Governor of Georgia makes the requisition upon the Governor of South Carolina, and the requisition is obeyed. Could he, could any one here, refuse to pay for the services of these troops? and, if not, in the name of conscience, how can we refuse to pay for the services of the troops of Georgia? Does the mere fact of their being Georgians make so material a difference? If the Governor of Georgia could call out, at his own discretion, and without beIn the letter from the Secretary of War, dated Octo-ing dependent at all upon the discretion of the General ber 27, 1792, the hostile disposition of the savages is spoken of, and in it is this passage: "If the information which you may receive, shall substantiate clearly any host le designs of the Creeks against the frontiers of Georgia, you will be pleased to take the most effectual measures for the defence thereof, as may be in your power, and which the occasion may require." In the letter from the same individual, dated S0th May, 1793, the Governor is restricted (from considerations of foreign policy) to defensive operations, but is authorized to increase the force. The following is an extract from it: "From considerations of policy, at this critical period, relative to foreign powers, and the pending treaty with the Northern Indians, it is deemed advisable to avoid, for the present, effective expeditions into the Creek

To determine the question of liability on the part of the General Government, we are naturally led to inquire, first, whether the Governor of Georgia, was, under the circumstances, acting under the express, or necessarily implied sanction of the General Government; for, if so, the liability, originally, of the General Government to pay for the services rendered, will be conceded. But, if this is found not to have been the case, we are, secondly, to inquire whether the circumstances were, of themselves, such as to authorize the Governor, under the constitution of the United States, to act as his discretion might point out. If both, or either of these positions be settled in the affirmative, it only then will remain to inquire whether the clause in the instrument just alluded to, was intended to embrace this particular case, and thereby to free the General Government from a liability, previously existing, to pay for the militia services rendered by Georgia.

First, then, did the General Government afford its sanction in a manner which would authorize the calling out of the militia by the Governor of Georgia? Now, this is to be determined only by a reference to the documents before us, but I have no hesitation in saying that such sanction was given.

Government at a distance, the troops of another state,
surely, a fortiori, he must have had a similar and co-ef-
ficient power over those of his own state.

In a letter, dated 19th February, 1794, from. Governor
Mathews to the Secretary of War, he protests against
the orders restricting him to operations of a character
strictly defensive. He urges most strongly the necessi-
ty of his being permitted to pursue the savages into their
own country-to follow them, like wild beasts, to their
dens, as the only possible means of completely effecting
the security of the frontier. He also proposes a plan
of defence, by erecting block-houses along the whole
extended frontier line. Now, sir, this complaint proves
that Governor Mathews considered himself as acting
under the orders of the General Government, and the

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H. of R.]

Georgia Militia Claims.

[FEB. 14, 1825.

ter addressed to the Governor of Georgia says:-" You are the judge of the degree of danger, and of its duration, and will undoubtedly proportion the defence to the exigencies." And, in another letter, addressed to the Governor of South Carolina, that officer is expressly referred to the Governor of Georgia, as the proper person to determine when any auxiliary force should be ordered out from South Carolina. The reason is clear: he is on the spot, and is, therefore, alone competent to deter. mine so important a matter.

adoption of a part of his proposed plan of defence, (as government at a distance, cannot be a competent judge. appears in the Secretary of War's letters to him of the This in fact is frankly and readily conceded by the Ge25th March, and 14th May, 1794,) shews that the Exe-neral Government; for the Federal Executive, in a letcutive of the United States continued to lend his sanction to the services of the militia. These documents, without going further, clearly shew that the Governor of Georgia was vested with discretionary power, adapted to the exigency. This power he exercised; and that it was correctly exercised, may be inferred from the readiness with which the agent furnished rations. These were paid for by the General Government, and that, too without any expression of censure upon him, for affording them. Is not this a conclusive fact, that the militia were properly called out and held in service? They were Of the existence of imminent danger on the frontiers of supplied with arms by the Federal Government-they Georgia, we can easily convince ourselves, by casting onwere regularly mustered into service, and were furnish-ly a hasty glance upon the communications of Governors ed (as I have said,) with rations. These facts appear Telfair and Mathews, and, also, of Col. Freeman, the palpably in the documents before us, and it is unneces- Agent of the War Department, and of other individuals, sary for me to weary the attention of the fouse, by read-also, in that quarter, many of them United States' Miliing them in detail. tary Officers. I will briefly refer to parts of these. And It appears, then, that the General Government did here, sir, I will remark, that the situation of Georgia can authorize the Governor of Georgia to order out troops at easily be conceived. With a frontier of near 400 miles, his discretion; and, although in one instance, the Ge- lined with numerous savages of the most warlike and neral Government seemed inclined to withhold its sanc-furious character, and with a sparse population, her detion in future, yet, upon the remonstrance of the Govern- fenceless and exposed situation can easily be imagined' or, he is again assured that he is considered the compe- The letter from the Governor of Georgia to the Secre tent judge of the extent of the danger. Subsequently, tary of War, dated 22d of May, 1792, gives intimation of indeed, i. e. in 1794, the number of troops is limited by the hostilities of the Creeks and Cherokees, and urges an order from the General Government, and the disband-"exertions towards a general defence." To shew, howment of those whose services were not deemed requisite, ever, that these apprehensions were also entertained by was (as Captain Freeman, the agent of the War Depart-the United States' Military Officers, I will cite the letter ment, acknowledges,) effected as soon as possible. The of Maj. M'Call, dated 15th of June, 1792, in which he situation of the frontier had, however, unquestionably not only acknowledges the danger, but also says, he has then became changed. All active hostility on the part found it necessary to call out a portion of the militia in of the Indians had ceased, and even a disposition to hos- his vicinity. A letter, also, from Andrew Pickens, dattility was scarcely manifested. The peace, too, which ed 12th September, 1792, states, that a general war was soon after took place between France and Spain, and expected; and a letter from Captain R. B. Roberts, also which must have been anticipated by our Government, of the army, expresses great anxiety and the necessity removed one great exciting cause of Indian hostility. of the militia being called out "immediately and in But, it is worthy of observation, that as late as 1795, one force." Maj. Gaither, commanding the United States' twelvemonth after the militia (the pay for whose services troops in Georgia, informs the Governor that he, also, is now claimed) are disbanded, the Governor of Georgia has found it necessary to call out the militia to bis aid.is notified by the Secretary of War, that 200 regulars With such sanction as this-with the countenance of are about to be sent to the St. Mary's River, for the pur- every United States officer in the State, the Governor pose of keeping the Creeks in order. So large a force would have been wanting in diligence and in fidelity, being deemed necessary at one single point, at a time could he have hesitated a moment. Our frontier was of comparative peace, would seem to prove that, if the streaming with the blood of women and children-our Governor of Georgia had erred at all, it was in not having outer settlements were abandoned in dismay by the inordered out a much larger force. Sir, this was the opi- habitants, and the Governor could not hesitate how to nion expressed in Georgia, as appears by Col. Freeman's act. correspondence.

The force to be employed, in defence, was not merely But, even taking it for granted, that no express or ne- to be measured by the numbers of the enemy, (and cessarily implied sanction of the General Government, these were not few, for they were composed of the two was afforded, still the second point which I have made powerful tribes, the Creeks and Cherokees,) but, also, will fix a liability to pay for these services, upon the by the difficulty of guarding an extensive and naked General Government: for, secondly, the circumstances frontier. The whole force called out, never, at any one were, of themselves, such as to fully authorize the Go- period, amounted to more than from ten to twelve hunvernor (under the Constitution of the United States) dred men, and it is absurd to suppose that this could have to act as his own discretion might point out. And here, been disproportioned to the magnitude and pressure of sir, I would remark that this clause in our Constitution, the danger. When it is recollected what forces were which recognizes the exercise, by a state authority, of deemed necessary to subdue a part only of these very a discretionary power, in times of imminent danger, is tribes, within a very few years past-when it is recol merely affirmative, or declaratory of a right which the lected that large armies from Tennessee, North Caroli God of Nature has given to every man, and which ne-na, South Carolina, and Georgia, aided by several regicessarily belongs to every community-which no law ments of regular infantry were required, at this late pe can take away, and which might have been exercised riod, to bring but a portion of these tribes, impaired as in the particular case before us, under the supposed has been their population, into submission, it may well state of things, even if the General Government had be conceived what difficulties and what dangers the expressly forbid its exercise. I would also add, that, young and thinly populated State of Georgia had to conex natura rerum, the individual threatened with immi- tend with. With but a handful of United States' troops nent danger, must be the judge of the force which it is to aid them, the militia of Georgia, at that early day, necessary for him to use, and the manner in which it is to were required, by the General Government, to defend be applied to secure safety to himself. Those who are her whole frontier. The imminence of the danger is present are alone able to determine the nature and ex-apparent from the many letters upon your files-the extent of the danger. An individual at a distance, or a tent of it no man can doubt, who has read the history of

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