CHEROKEE PHOENIX.

NEW ECHOTA, OCT. 22, 1831

(note the difference in date)

The letter signed Justice, which we republish from the National Banner, will give our readers one idea of a spirit which is exercised towards the missionaries.- The characters of these worthy men are too well known in the Christian public generally, to need at this time any vindication from our pen. We however take the liberty of making a remark or two relative to the pardoned prisoners. It appears from the letter of the Inspector published in our last, that only one of them petitioned the Gov. for a pardon; the remaining eight were set at liberty with the understanding that they would not make themselves liable to another arrest. One, by the name of Eaton, we have understood, took the oath-the rest have left or are preparing to leave the limits of the State. Mr. Worcester, who is denominated their leader, and who is said to have influenced others to 'resistance' we can say without fear of proof to the contrary, sought to exercise no such influence, and did exercise none, unless by his example. His example stands. His letter to the Governor has been published in several prints, but we doubt whether Justice could have seen it, as he appears to have mistaken its contents. The letter itself shows that he wrote in behalf of no one but himself. It may be proper also to state that Mr. Worcester had not seen Eaton till after they were both arrested, that with several others of the prisoners he had little, or no acquaintance; and to none did he impart any counsels on the subject of resisting the Georgia laws; though it is true his sentiments were known, and publicly known, nor did he wish to conceal them.

It is, to us, if correct, a novel idea, and a rather singular way for a Government to manage her affairs, to release criminals from the Penitentiary whenever obedience to her laws is promised. If one culprit can be thus released, why may not all enjoy the same privilege? Although we are aware that it is optional with the Governor when to pardon or punish criminals, still, in our view, it would appear rather inconsistent to pardon a transgressor merely on condition of future obedience. Such a state of things would hardly become any government.

The constitutionality of these laws under which the missionaries are imprisoned, in our opinion, remains yet to be tested; and until it is, we presume Mr. Worcester and Dr. Butler will continue in their confinement, unless offered an unconditional pardon.

It will need something more than repeated assertions, to prove that the 'common Indians are mere tools in the hands of the half-breed whites;' nor are the reports to Congress of the Hon. Judge White and Mr. Bell sufficient to prove them such, so long as there stands abundant proof to the contrary. They must for once have failed to obtain correct knowledge, such being the result of their Indian investigation.

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The statement of facts in the following communication is not materially different from our previous understanding of the matter. If the law of Georgia requiring an oath of allegiance to that state from citizens of the United States who may choose to reside in a particular section of country, be constitutional, reasonable, and just, there is probably no cause of complaint. But upon that point, we confess we are not satisfied. Suppose the legislature of Tennessee were to pass a law requiring that every man who should come within the limits of Nashville, should take an oath not required of other citizens of the state, would such a law be equal in its operation, constitutional, or binding? Would the citizens of Nashville, and strangers coming here, be content to submit to it? Would it be considered anything short of tyranny and oppression, to sentence to confinement at hard labor with thieves and robbers in the penitentiary, such men as might not choose to obey it? Would not such a case be precisely analogous in principle to the state of things referred to by our correspondence? We submit these inquiries for consideration.

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From the National Banner.

GEORGIA

Mr. Editor:- In the last Herald, there is a piece signed LOWNDES- intended to raise a political excitement, because of supposed oppressions by Georgia of the missionaries in the Cherokee Nation. Many of your readers had fallen into a mistake upon this subject, as well as yourself. The writer thought favorably of your views latterly published, taking your facts to be true: but the misfortune is, that the demon of party politics is the main agitator of this matter, whose practice is deception. Before coming to any fixed opinion, the writer endeavors to ascertain facts from worthy sources. He has done so from a disinterested man of high standing, and undoubted integrity, directly from the spot, who has heard the story of both sides.

By the laws of Georgia, every white man residing within the Cherokee country, was directed to take an oath of allegiance to that State. On his refusing to do so, on application of the civil authority, he was subject to indictment for refusing, and on conviction to be imprisoned in the penitentiary for four years. To the drunkenness and lowly debasement of the common Indian, it was believed the white man in the nation had greatly contributed-- that they exercised an all controlling influence; would resist the authorities of Georgia themselves, and cause the Indians to do the same. That the common Indians are mere tools in the hands of the half-breed whites residing amongst them, is proved beyond doubt, by the reports to Congress drafted by Judge White and Mr. Bell. Hence Georgia required the oath of allegiance from the white men.

Under this law the white men were applied to; the missionaries in common with others.- The law made no exception in favor of a man who preached, as it could not with propriety. The Governor sent an officer to administer the oath to all the white men--eleven refused amongst whom were several preachers. The refusal was reported to the Governor who wrote to the men urging of them to take the oath, setting forth his duty, and the consequences of a refusal, and that he would wait ten days for them to think of it. Application was then again made, but they still refused, and Mr. Worcester, their leader, wrote the Governor, that the oath would not be taker--that they were prepared to meet the consequences. They were of course arrested, indicted, tried, and convicted. The court ordered them to be sent to the penitentiary. When they got there, nine of them had no fancy for martyrdom, and petitioned Governor Gilmer for a pardon, stating that they had been influenced by Mr. Worcester to resistance, and had no objection to taking the oath. The Governor instantly sent them a pardon, they took the oath, and were discharged without being taken within the walls of the penitentiary. Mr. Worcester and another however, were determined to be martyrs, and would not be pardoned, consequently they were put in the penitentiary. They could, beyond doubt, any day, take the oath, and be pardoned, but notoriety was their object. They are courting 'certification of the flesh.' Worcester is said to be a man most fit for such mummery, highly ambitious to be distinguished as a saint. He has literally forced himself into the penitentiary. You may rest assured these facts are in substance true. We have all along been wrong about this matter. The Governor and courts of Georgia could not do otherwise than proceed against these man. The only objection to the law was, that Georgia had no right to extend her law over the Indian country within her limits. In the case of the state against Tassels, all the Judges of Georgia in conference, determined that she had a right. The Supreme Court of the United States decided that the Indians were a conquered and dependent people, which principle covers the whole question. The matter is then reduced to this: Can a citizen be permitted to resist a law passed by the legislature, and declared constitutional by the courts?

The attempt of 'Lowndes' to array the church against Gen. Jackson, because Georgia persecuted, (at this anxious seeking,) the preacher Worcester, is too ridiculous for answer. The legislature of Georgia passed the law; the courts have decided she had the power--and the President has just as much right to interfere as 'Lowndes'. After what occurred in the case of Tassels, the attorney general who would so advise the President, would be driven from his station by the scorn of the lawyers of this nation for his stupidity. 'Lowndes' is certainly a sorry lawyer, and I should think a yet sorrier Christian. He attempts by declamation to enlist the church against the state, to put down the laws; and why? because forsooth, a couple of noisy preachers have defied the laws of the state in which they live, and courted their penalties for the sake of making a noise, crying persecution.

JUSTICE.

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From the Augusta (Geo) Chronicle September 26.

This morning's mail brings us the following news from Milledgeville:- Nine of the convicts above mentioned have been pardoned by the Governor on giving assurances that they would not again violate the laws. Two of the Missionaries, Worcester and Butler, refusing to give such pledges of future good behavior, were committed to the Penitentiary. Mr. Worcester has applied to the Supreme Court.

The trespassing here spoken of, says the Baltimore Chronicle, consisted in residing amongst the Cherokees, for the purpose of preaching the gospel to them, and thus awakening the benighted minds of these sons of the forest in a just sense of their dependence upon the Author of all good. For this, these holy men of God were arrested, had chains placed around their necks, and were dragged forty or fifty miles from their homes (one of them in delicate health) by an unfeeling Military Guard; and to render the injustice and oppression still more complete, have now been sentenced to imprisonment in the Penitentiary. And if the question be asked, for what? Consistently with truth, no other answer can be given, than that they have been thus treated because they dared to unfold the beauties of our religion to the Indians. One of these Missionaries the Rev. Mr. Worcester, was Post Master in the Cherokee country at the time of his arrest, (this being his second trial) and was discharged by Judge Clayton, on the ground that, in as much as he was an officer of the General Government, he was not within the penal operation of the statute of Georgia. This decision was no sooner known at Washington, than he was reformed out of office, and thus rendered up a sacrifice to appease the vengeance of that state. By this act General Jackson's Administration has identified itself with all the cruelties and wrongs heaped upon these persecuted men, and must, we think, provoke a fearful retribution.

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Missionaries sent to the Penitentiary--The facts stated below, which with shame we feel now obliged to believe, must kindle up a degree of indignation in Americas bosoms, which will never be appeased until justice is restored to its authority. Missionaries confined in a Georgia Penitentiary with felons!- for the crime of quietly teaching the poor Indians to read, write, and cultivate the soil, and imparting to them the hopes and motives of the Christian Religion!

Such disgrace has never stained the character of the Esquimaux (sic) of North, the cannibals who inhabit the Islands of the Pacific, the Hottentots, Hindoos, and Turks of the East, or the wild and cruel natives of the American coast in the West--all have treated the Missionaries kindly. It is reserved to America, the government of Georgia acting as principal, and the Executive of the Nation as accessary, to act a part of cruelty and oppression which has never been practiced by Turks and Cannibals.

American Spectator.

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From the Vermont Chronicle.

GEORGIA AND THE INDIANS.

'The fact that the United States have guaranteed the privilege of self government to the Indians, offers no excuse for an encroachment on the rights and sovereignty of an individual State, in order to fulfill it. The rights of Georgia existed prior to, and independent of, this stipulation of the General Government with the Indians, and could not be invalidated by it. And, indeed, it would seem that neither party were, at the time, competent to conclude such a contract. The Indians, being within the limits of the State of Georgia, owed allegiance to her government and were liable, at her will, to become amenable to her laws; and while we remaining within such jurisdiction, were not competent to enter into any stipulation with a foreign power, whereby to render themselves independent of such obligations and liabilities. Neither was the Government of the U. S. Competent to do any act whereby Georgia should be forcibly deprived of any of her vested rights.

This we copy from the Vt. Advocate. We notice it the rather, because we have always regarded Mr. Spooner as a fair minded man who thinks for himself. The reasoning in the above extract appears unanswerable; but we think the facts do not sustain it. Where did Georgia get the right to subject the Indians to her laws? The first settler of that Colony found the Indian rightfully enjoying, complete national independence, capable of managing their own internal affairs, and of making treaties with other powers. This Georgia has acknowledged, in repeated treaties made with them, both while a colony ' while an independent state. The treaty at Augusta, May 30, 1783, is declared in the instrument to be made between 'the state of Georgia, in the 7th year of its independence, and the head men, warriors, and chiefs of the hordes or tribes of the Cherokee Indians, in behalf of said NATION This treaty was made by Georgia herself, before the adoption of the Federal Constitution. It guarantees to the Cherokees their territorial limits, and acknowledges their national existence; and it conclusively proves that Georgia, by her own acknowledgement, had at that time no right to dominion over the country of the Indians.

Again, the Advocate says:-

'We cannot therefore, under the circumstances adopt the course of those who act from mere party motives, we cannot go with those partisans in the opposition who seem disposed to countenance ' encourage those who are exerting an influence upon the Indians prejudicial to their good, merely for the sake of paralysing the efforts of government, and making an occasion to deprecate the merits of the administration.'

This will be understood by many, as expressing Mr. Spooner's opinion of the character and motives of all those who maintain that the General Government is bound to protect the Indians in the exercise of self-government where they are. Does he mean that he so understood? If not he is bound to say so.

On another point we would say a few words. The Advocate censures the Missionaries for their 'Deliberate and persevering defiance of law,' and some papers, absolutely rave about their conduct in this particular as unchristian. But we are perfectly ready to say, that 'passive obedience' to whatever our rulers may promulgate as law, is no part of our creed. There are occasions when it is our duty to obey God, by disobeying men who claim dominion over us. Unchristian indeed! Was not Christ himself accused, tried, condemned ' put to death under form of law! Was not the Gospel preaching at Jerusalem, in defiance of what the rulers promulgated as law? Did not the Apostles justify themselves in it on the ground that they ought to obey God rather than man? Was not the gospel preached, embraced and professed throughout the Roman empire, 'in deliberate and persevering defiance' of the laws of that empire. Did not ten persecutions, in which rivers of Christian blood were shed, all arise from the disobedience of Christians to laws commanding them worship idols? Were they wrong, and their persecutors right? Was the prophet Daniel wrong in contenuing to pray to God, contrary to the 'laws of the Medes and Persians?' In the cause of civil liberty, too, instances might be quoted inumerable. Were the 'patriots at the Revolution' wrong in refusing obedience to the unjust laws of Great Britain? Indeed, what revolation in favor of liberty ever did, or ever can take place without disobedience to what the oppressive govt. publishes as law?

We have said these things, because we are unwilling that dangerous principles should circulate undontradicted and not becuase it was necessary to the defence of the missionaries.- They are acting in strict accordance with what they believe to be law, the law of Georgia. In a constitutional government, like ours, it is not true that every edict of the men who have been chosen as legislators is law. Their doings are law, only when they act as they are authorized to act by the constitution from which they derive their power. When they do what the constitution has not authorized them to do, their acts are NOT law. They are no more binding than the acts of any other individuals.- Such the missionaries believe to be the case in the present instance.- They believe that according to what is really law in Georgia, they have a right to continue where they are; ' they intend to act accordingly, till the question is decided by a judicial tribunal. This question the Supreme Court have not decided. It has never come before them. The missionaries wish for a decision; and when the question is settled and the law made certain, they intend to abide by it.

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One of the Judges of the State of Georgia lately decided that the Cherokee Indians had a right to dig for gold on their own ground. This opinion has excited the ire of the irascible Governor of Georgia who, regarding the decision of the Judge as a nullity, has issued a positive order to Col. Sanford, who commands what is called the Georgia Guard, in the Cherokee Nation, to 'arrest every person who may be found attempting to take gold away from the mines.' Thus has a serious collision taken place between the executive and judicial branches of the Government. The 'thirst for gold' impelled the Spaniards to commit unheard of cruelties upon the confiding and unoffending aborigines of America upon the first discovery of the continent; the same unhallowed passion is urging our fellow citizens of Georgia to acts of oppression and tyranny, which are difficult to reconcile with the humane principles of our government. Blinded by cupidity, and encouraged, if not protected, in their headlong course by the General Government, the most solemn treaties are violated, and the rights of our citizens trampled under foot.

Nat. Her.

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The Murfreesborough Courier of the 5th contains a letter from the Rev. James I. Trott, dated 16th of Sept. by which it appears that on that day he was sentenced by Judge Clayton to four years imprisonment at hard labor in the Penitentiary of Georgia. Ten other persons, two of whom are Presbyterian missionaries, were sentenced at the same time. Their only crime was residing in the Cherokee Nation contrary to an arbitrary, oppressive, and we have no doubt, unconstitutional statute of the state of Georgia, and their refusal to take the oath of allegiance to the State. In this case is there no remedy? Is the liberty of a free-born citizen of the United States to be thus taken from him without crime? Do we live in a land of liberty or had liberty fled and tyranny and oppression assumed her seat. Ibid.

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From the New-York Observer

High-handed Conduct of Governor Gilmer.-- From the southern papers it appears that the Judge of the Western Circuit in Georgia, has decided that the law of that state forbidding the Cherokees to dig gold on their own territory, is unconstitutional and void, and has discharged an Indian from confinement who had been arrested by the Guard for its violation. Governor Gilmer, being informed of this decision was much displeased, and immediately issued orders to Col. Sanford, the captain of the Guard, commanding him to disregard the decision of the court, and to persist not withstanding, in arresting every Indian who may attempt to take away gold from the mines. He has thus nullifled the state Judicary, and usurped its powers. This, to be sure, is merely in keeping with the conduct of the legislature in nullifying Indian treaties and the laws of the United States, but we are yet to learn how it is possible that free institutions can long be maintained in a country where such bold usurpations are tamely submitted to by the people. In allusion to the decision of the court and the conduct of Governor Gilmer, the editor of the N. Y. Daily Advertiser observes:

We cannot withold our surprise as well as gratificatoion, at finding that there is at least one Judge in the state of Georgia, who has the firmness, independence, and integrity to stem the torrent of injustice and oppression which have so long disgraced the character of that state, and to do justice, in some small degree, to humanity. We do not know but such a state of things may do in Georgia, but we do not believe there is another state in the Union, in which an executive could dare, in the face of a judicial decision of a court of competent jurisdiction, to disregard the authority of the court, and declare its determination to be viod and of no effect; and direct a military officer to execute an act, which the judiciary had declared to be unconstitutional.

We do not believe that there is a case in the history of free Governments, at least within a hundred years, of such gross injustice and oppression--such a total disregard of the rights of property, as well as personal security, as has been exhibited in Georgia for the last three years.- And the object is to plunder a feeble, helpless people of their property, and to banish them from their possessions, and their home. Who ever heard of such felonies as the legslature of Georgia have enacted? It is a felony, by their act, for a man not to take the oath of allegiance- a mere negative offence, to say the most; and in our view, a direct violation of an express provision of the Constitution of the U. States--an instrument which Governor Gilmer, and the legislature of Georgia may have the capacity to break, but the protection and preservation of which, fortunately, belongs to another power.

It is now said, that under the authority of the act of Georgia, constituting this negative felony, and prescribing the penalty to be imnprisonment in the state prison at hard labor, several missionaries have been sentenced. We hope and trust their friends are not inattentive to their concerns. Surely they will enable them to bring actions at law for this treatment before the proper tribunals to decide upon the constitutionality of the Georgia act.