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JWi <Uc ItichmouJ Jtniiinri/ 13. j
Tin; CITATION CASE. (
An Eziinguishcr!—Or the ifeiv Cue!
The case of Tassels was “nuts”
to the o||.'o.siiion prints. They ex
petted to got ii]), eventually, a loud
clamour against General Jackson,,
and to put his popularity to the sever- |
est test. The whole train was actu-1
ally laid in one of the Clay papers, j
The Supreme Court was to arraign j
the Sic. .If and Judge of Hall Coun
ty, for a contempt —then a refusal in
those odicers to obey .the precept—
then a Posse Cifimtntus to be sum
moned to enforce it—next a refusal
or their part to obey—and last off
all, the President was to he called
upon to turn out the military author
ity of the United States, to execute
the laws of the Union. If he com
plied, he was to lose the favor ot all
his friends of State Rights: If lie re
fused, then he was to he held up as
a Traitor to the Union.—Tlic whole
plot was laid by some of the Opposi
tion piints. Already the N. Y. Dai
ly Advertiser was crying out Treason
ugainst the Governor and Legisla
ture of Georgia “And” (says the in
genious paper) “If this Indian con
vict was hung , in defiance of the. writ
of Error, we do not see-how the Pre
sident of the United States can c;r
tricatc himself of the. predicament in
which his rashness and folly has plac
ed him, without exerting his consti
tutional authority for enforcing the
execution of the Laws, &c. fc.—
And whenever a Chief Magistrate of
the nation cakes upon himself the lat
ter power, he orrr/it robe brought to
4hc bar of \he constitutional tribunal
for the trial and punishment of such
offences lint the whole plot, it
*oems is blown up. There is to be
iio treason, war, Posse Comitatus, ar
jrai i of troops , or impeachment, The
Vast National Intelligencer comes
forward iu the most subdued accents,
to announce that the danger is all o-
Ver, and that the execution of the
unfortunate Tassels, lias übated the
cause of action. VVe (mil this infor
mation with the greatest satisfaction.
The following is extracted from the
-long article in the National Intelli
gencer ;
“InformAtion has reached this ci
ty, that Tassels, the Indian, iu
whose behalf the Writ of Error was
sued out of the Supreme Court from
the decision of the Circuit Comt of
the State of Georgia, has been hung,
in pursuance of the sentence of that
Court. The case has therefore, we
/oppose, passed from the jurisdiction
ot tlieSu|rreine court; no injunction or !
supersedeas having issued from tlmt
court, disobedience to which would
bring the case before it.
“The issuing of the writ of error
Was a matter of course; a right guar
anteed by the laws, ami a duty im
perative on the court: that writ ope
rated in fact, only as a notice to the,
State that a writ of error had been
Sued out. It was a summons, which j
the State had a right to disregard if
she chose; because if the state did
disregard it, the case would never
theless have been examined before
the Supreme Court, and adjudged
according to luw, had not the death
ofthe party abated the cause. Nor
was the execution of the Indian, or
the proceedings of the Legislature or
of the Executive of Georgia, by
which the execution of the sentence
was enforced and directed, any of
fence against the Laws of the United
States. A humane regard for hu
man life, a spirit of mercy, a proper
respect, for rights claimed in the i
Jbrrns of daw, would perhaps have
induced u suspension of the executi
on until the decision of the Supreme
Court should have been made, hut
no legal obligation or injunction ex
ists which has been violated bv the
sentence being carried into effect.
The wrong, so far as a wrong lias
hepn perpetrated by the execution of
the sentence, is a moral (not legal)
Wrong.
“The resolutions of the Legisla
ture of the State of Georgia, it is i
true, gyt further than this, and im
pugn (ho authority of the Supreme
Court as derived from the Constitu
tion. So far the proceedings of the
Legislature are unconstitutional, and
t herefore, in our view, trot justifiable,
Rut there is no process bv which
tlmt unconstitutional proceeding can
fie brougi:.’ before thcSiipremeCourt,
if it were desirable. Asa case of
actual conflict between the •United
and Georgia, therefore, the
wit'll the death j
of the Indian. We do not rejoice in
the death of the Indian, even though
he may have legally incurred the
penalty—and wc arc glad that the
case is ended hy reason of tlmt cir
cumstance. For wc arc far front
desiring to multiply points of conflict
between the Federal and State au
thorities.”
In this last sentiment we most cor
dially concur. For our own satisfac
tion, we submitted the statement of]
tlieN. Intelligencer to a legal friend,
who has favored us with the follow
ing Memoranda.—They may serve
to show the course which has been
taken by the Supreme Court of the
United States, in such disputed cases
of jarisdicton—as well as to satisfy
the reader that the case of Tassels is
hurried mi the grave with him,
Memoranda —Art. 111. Sec. 11.
Constitution U. S. and 25 see. act
Congress, passed 21th Sept. 1780,
establishing the judicial courts of the
U. States, 2 Colv. Ed. p. C 5.
The constitutionality of so much
of this (25 sec.) was denied hy our
Court of Appeals in Martin vs.
Hunter, as extends the appellate of
the S. C. of U. S. to judgements pro
nounced by a Superior Court of *
State--Constitutionality re-adjudged j
by the Supreme Court of the U. S. j
I Wheat, p. 31)4, sanctioned—and!
again re-examined —and sanctioned !
iu the case of Cohen vs. l a. C
Wheat, 205 4lr. (now Judge) Ear
hour contended that the Supreme
Court could not lake appellate juris
diction in this case, because the
commonwealth was a party —anti
that it could not take original juris
diction because it was a criminal case
—and therein the Supreme Court
had no jurisdiction whatever—but
these positions were overridled by
the Court. See opinion delivered by
Judge Marshall, 387, 391-2, and p. i
410, —shewing that the amendment
art, XL did not affect the cusa, lie j
says:
“Under the judiciary act, the es- j
feet of a writ of error is simply to ]
bring the record into court, and sub
mit the judgment if the inferior tri
buna!, to re-examination. It docs
not in any manner act upon the par
ties; it acts on the record. It re
moves the record into the supervis
ing tribunal. When, then, a State
obtains a judgment against an indi
vidual, and the court rendering such ]
judgment overrules a defence set up!
under the Constitution or law&ol’the ]
United States, the transfer of this re- !
cold into the Supreme Court, for the :
sole purpose of inquiry whether the ]
judgment violates the Constitution or
laws of the United States, cun, wiih
no propriety,'we think be ueuomina -
ed a suit commenced or prosecuted
against the State, when judgment is
so far re-examined. Nothing is de
manded from the State. No claim
against it of any description is as
serted or piosccuted. The party is
not to he restored to the possession
of any thing. Eassentiully, it is an
appeal op a single point; atid’the de
fendant who appeals from a judg
ment rendered against him, is never
said to commence or prosecute a
suit against the plaintiff w ho lias ob
tained the judgment. The,writ of
error is given rather Ulan an appeal
because it is the more usual mode of
removing suits at common law; and
because’, perhaps, it is more techni
cally proper, where a single point of
law, and not the whole case, is to f!e
re-examined. But an appeal might
he given, and might be so regulated
as to effect every purpose of a writ
of error. The mode of removal is
] reform, and not substance. Whclli
i er it be hy w rit of error or appeal, no
claim is asserted no demand is
! made by the original defendant. He
only asserts the constitutional right
to have his defence examined by that
tribunal whose province, it is to con
strue the Constitution and laws of
the union.”
“The only part of the proceeding
which is any maimer personal, is the
citation. And what is the citation!
It is simply notice to the opposite
party, that the record is transferred
into another court, where he rnay
appear, as his judgment or inclinati
on nrny determine. As the party
who has obtained u judgment is out
of court, and may, therefore, not
know that this cause is removed,
common justice requires that notice
of the fact should he given him.—
Blit this notice is not a suit, nor has
ii the effect of process. If the party
does hot choose to appear, lie cannot
be brought into court, nor is his fail
ure to appear* Coftsulercd as a de
fault. Judgment cannot bo given
| against him for his non-appearance,
hut the judgment is to he i c-examin
cd, mid reversed or affirmed, in like
mariner as if (he party had appeared
and argued his cause,” &,c. &c.-
[Ma rch 3d, 1821, date of opinion.] I
Judge Johnson, in his opinion—in
the case of Martin ys. Hunter's lesse, |
1 Wheaton R. p. 3715-7, says—“l
have too much confidence inthe State
j tribunals to believe that a case ever
will occur, in which it will he neces
sary lor the General Government to
assume a controlling power over
these tribunals. But ts it difficult to
suppose a case which will call loud
ly for some remedy or restraint?
Suppose a foreign minister, or an of
ficer, acting regularly under authori
ty tromihe United States, Seized to
day, tiied to-morrow, and hurried
the next day to execution. Such
cast's may occur, and have occurred, |
in other countries. The angry vin
dictive passions of men have too of
ten made their way into judicial tri
bunals, and we cannot hope forever
to escape their baleful influence. In
t lie case supposed, there ought to he
a power somewhere to restrain or j
punish, or thcUnion must bedissolv
jed. At present, the uncontrolahle j
jexercise of criminal jurisdiction is j
most securely confided to the State
} tribunals. The courts of the United J
Slates are vested with no power to |
scrutinize into the proceedings of the
•state courts in ciiiuinal cases,” <fcc. j
[2Gth March, 181(5, date of opinion.]
“IfthoPlf. in Error die, before]
errors assigned, the writ abates-—]
Tidd’s Prac. [1(59(5] 2d Am. Etl.—
Green vs. Watkins, (5 Wheat. 2(50
hut if after alignment of errors, the ;
defendant may join in direr, and pro- ]
coed to get the judgment affirmed, I
if not erroneous, and may then re- j
jvive it agiriu.'t the representatives of]
the plaintiff— lbid. Now, whether
\Tussels departed this life, before or:
j after errors assigned, I think the;
| writ has abated. Certainly, if he
{died before—and, if after, the defen
dant had obtained all he required—
jand, therefore, has nothing to ask. j
The rule of the Supreme Court of
U. S. Fob. G, 1821, docs not, I pre
sume, affect this case.”
From the Athenian.
Report of the case of the State ts.
j George Tassels, a Cherokee Indian,
j for the murder of Cornelius Dough-1
jcrty, another 1 in!': in i barged to have]
j been committed in that part of the I
Cherokee Nation attached to the
| county of Hull, and tried at an ad-I
Ijourned Term of tlio Superior Court
jof said county, on Monday, ihe22d
I of November, 1630.
j The I rail commenced a little after
ilO o’clock, in tin: morning; The
first witness sworn, was
Let rv Pkocxer, who swore, that
on the , j (ill) of July at the house
where she now lives, the prisoner and
deceased were there, early in the
moaning, when she first got, up, mid
fremaiuy*] tkgre till about 10 o’clock.
[At that time he seized a gnu which
I was stuticjing in the corner of the.
(room, and being near the middle of
; the room, to Dougherty he would
. I shoot him. . Dougherty replied, don’t
| shoot me, J have just returned into
ithe house- Witness thought at first
jit was mere pretence, mid left the
] house to go s to an out house, but she
. had not reached it before she heard
the gun go- (Off, and turned round,
saw deceased coming out at the door
with one baud on his side, and the o
tlier on jus, knee, jgfejang, “catch
him;” witness askeft “who ?” lie
did not speak, but motioned hack
with his jahhd into the house, and as
soon as lie got out he fell upon the
ground. He was shot in the right
side. She left no one in the house
hut the two; they had been drinking,
hut there had been no quarrelling
, between them that she heard. The
alarm was given for the persons in
the out-house to fly, for fear the pri
soner would shoot them hlso, which
was done, the witness among the
rest; when she returned deceased
had moved a short distance from
where she left him.
I James Dougherty testified that
the placie w here the murder took
place, was; in that part of the Chero
kee nation attached to Ilall county.
He was not present when itoccured,
hut went there soon after ; found de
ceased weltering in his blood, and in
great pain. He fainted once or
twice, and oriope occasion witness
dosed Itis eyes under a belief he was
/dead.— He however lived.two days.
] While living deceased* expressed a
dccidcd-opmloti that he would die,
and under that, belief, said that the
wound which he was dying was in
flicted hy prisoner. While prisoner
was before the magistrate, he con
fessed he had shot Dougherty. Wit
ness asked him why he did it, and if
they had any quarrel? He replied
they had not, hut that they were
friends and mates, and he wanted to
kill him that they might he buried in
one grave.
Elijah Roberts testified, that
he was summoned as one of the guard,
and was present at the investigation
before the magistrate. Prisoner ask
ed witness and McClure what they
would do w ith him ; he told him lie
would have to go to Gainesville and
be tried by the Georgia laws. Pris
onei replied, “Cherokee too.” Mc-
Clure suid he would he hung or goto
the Penitentiary. Prisoner said he
had rather go to the Nation and be
shot. Witness asked him if he shot
Dougherty? He said lie did. Wit
ness asked him what he did it for;
was there any quarrel? He said
there was a previous quarrel. “Pri
soner said that he and Dougherty
had been drinking on the day of the
murder, and he told deceased he
would whip him there —Deceased
said no —Prisoner said Yes, by G—tl.
Deceased said lie would get some
white man to whip him—Prisoner
said he w ould kill him and white man
too.” And shortly after shot him.
Witness asked iiiin if be wa’nt sorry
for it? lie said with auoath, Nolle
would do it again.
Mark Castleberry testified he
was Constable, and arrested prison
er. When he first arrested him he
was very stubborn and talked only in
Indian. After carry ing him some dis
tance lie began to talk in English, so
that witness understood him very
.well. He asked witness where he
was carrying him? Witness replied
to the Georgia side, to be tried for
shooting Dougherty, lie asked wit
ness if he was dead? Witness said
he was not two hours ago. He ask
ed witness if he had seen the bullet
hole ? -jSe replied he had. He ask
ed where it was? Witness showed
him hy placing bis finger on his side.
Prisoner said hajnimcd to shoot him
“there,” pointing to a spot on his
buttock just below the hip. Witness
then asked him what he shot him
for? He replied he did not know;
t hey went to the place friends, and
] after being there awhile, prisoner
{said he told Dougherty he would
j shoot him, and Dougherty answered,
j shoot if you chooso. Prisoner said
! !>e the*rtook down u gun from a rack
! and began to load it. -Dougherty
I laughed, as though he thought pri
soner was not in earnest; and when
j prisoner had finished loading and
nearly done priming, Dougherty be
! came alarmed and made for the door
]to escape, and as he reached the
J door he shot him, and aimed to hit
him in tho place before described.
He said there had been a previous
quarrel about a woman. Prisoner
begged to bo carried to the Savan
nah to be tried hy the Cherokccs,
The testimony then closed, and
the case was argued before the Jury
until five minutes after 10 ut night,
when the Jury retired, and in thirty
five. minutes returned with the verdict
of-GUILTY. Counsel fortheState,
the Solicitor General, and Messrs.
Goodman and R. Dougherty—For
the Prisoner, Messrs. Underwood,
Hunis and Mitchell. The next day
sentence of death was passed upon
the prisonel, accompanied with ap
i prop tint c remarks by Judge Clayton.
The following letter shows how the
Resolutions in the ease of Tassels,
were received at Washington City.
HOUSE OK REPRESENTATIVES, Jan. 3.
To the Editors of the Geo. Journal.
Gentlemen —l received, by yes
terday’s mail, the Georgia Journal
containing an account of’ the recep
tion of Chief Justice Marshall’s edict
“extraordinary ,” hy the Executive of
Georgia, and the Legislative action
had thereon. For the transmission
oftliis information, not being a sub
scriber to your paper, I have pre
sumed myself indebted to your polite
ness, and give me leave to say that
no subject has excited equal interest
iu the political circles of Washing
ton, since commencement of the ses
sion ; not even the entire change of
the British Ministry, and other im
portant which has been so con
stantly (rouring in, upon ms from Eti
rope. The message of the Govern
or together with the report and rcso
: lut'ons of the Committee, arendmi
; ruble. They are dignified, though
decided, and fully correspwnd with
that degree of self repeet which is due
to every sovereign member, of the
confederacy. The Georgians are
considered here as the “Parisians,*’
of the South. While others talk of
resistance an and nullification,'they tict.
The transaction is a turn-up card ia
favor of State Rights and republican
principles. “The Judiciary of the
U. States,” to use the language of
that great apostle of human liberty,
Mr. Jcllerssn, *“is the subtle porpsof
sappers and niircrs w constantly work
ing under ground to undermine the
foundations of our confederated fab
ric.” So far, success has sanctioned
their usurpations—The great States
of Virginia, Pennsylvania, Ohio,
Kentucky and Maryland have, each
in their turn, been humbled before
this irresponsible tribunal. The
Chief Justice is, and lias been, since
the establishment of the Government
a coirsolidationist in principle; and
it is not remarkable that through a
long judicial life, he should have
striven to make the government hy
implication what the federalist al
ways wished it to he, hy the lettcrof
the constitution, viz: a splendid, con
solidated government. Hitherto lit
has been successful in selecting the
means to attain this end. In the
case of Tassels, he appears to me,
however to have placed himself in a
predicament from which it will lie
difficult to escape, to punish the
State or its officers sot 1 a contempt,
will he too bold a measure to be sus
tained hy even a respectable portion
of public, opinion, and to satisfy him
self with solmpoiTant an effort of
authority as the transaction exhibits,
will he to bring derision and con
tempt upon the powers heretofore
claimed for tho Court. so it
must he Quem dous null perdere prius
dementat. While- those in authority
have become intoxicated with power,
the people not only in this country,
but in Europe are nsingAn their ma
lcsty and demanding a restitution of
their rights. I trust in God that our
northern brethren, who have so long
profited hy their oppressions on the
Soutlr, will sen in this act offiimlies*
on the part of Georgia, a'’guaranty,
that in the hour oftrial, she dares to
resist oppression whether it come- in
the shape ofa judicial mandate, or
in the violation of her chartered
rights, hy a reckless majority iti
Congress. The urranimtj manifes
ted in the Legislature proves that
the most unrelenting party feelings
were almost entirely lost sight of in
the effort to sustain the honor and
dignity of the State. The instinct of
liberty was so great, that even those
who so recently and publicly avowed
their ardent, and, as many believed
their overweening aUachmeni.to the
authority of the General Govern
ment, even to the point of unquali
fied submission, have not hesitated,
when a case of usurpation was
hi ought-directly to their view, to co
operate warmly and decidedly, in the
measures best calculated to resist tho
oppression.
REMOVAL.
James $* Griffin,
HAS REMOVED Ills DRY GOODS
STORE,
In the low er end of J. McCor
micks brick building, one dooi a
bove Lane &■ Hester’s
January, 29th 1831. 32—3*.
SherifPs Sale.
WILL be sold at the Court
bouse in Wilkes county, on
the first Tuesday in March next,
btween the usual sale hours, the
following property, to wit:
One negro man by the name
of Billy; levied on as the property of
Stephen H. Mallory, to satisfy an
execution in the name of James
Render, administrator of Christo
pher Render, deceased, vs. Willi
am Saffold and Stephen 11. Mullo
ry.
ALSO,
One negro man, by the name
of Abraham, one negro woman Eli*
za and her child Levina; levied on
as the property of James Walker to
satisfy an execution in the name of
Juhn C. Hunter vs. James Walker,
and sundry others vs. said Walker.
William 11. Dyson, and; fc.
January 29, 1831.
(Juardian s lionds,
tt this. Qfltfi
