(This was transcribed by the Alabama Historical Society and printed in 1901 in their magazine as follows)
THE MISSION OF FRANCIS SCOTT KEY TO
ALABAMA IN 1833
By Thomas Chalmers McCorvey Tuscaloosa.
The State of Alabama was not slow in asserting its sovereignty over the ceded territory. (Indian Lands) By an act of the general assembly, approved December 18. 1832, nine counties were carved out of it: Coosa, Benton (now Calhoun), Talladega, Tallapoosa, Russell, Randolph, Chambers, Macon, and Barbour; and over them was extended the administration of State laws.
The chief executive of Alabama at that time was Governor John Gayle, who, although he had been elected, in 1831, as a representative of the anti-nullification sentiment of the State1 and had been a warm supporter of General Jackson for the presidency, held views as to State sovereignty very different from those of the president.
However, in justifying the action of Alabama in extending her jurisdiction over the ceded territory, Governor Gayle urged that the general government had invited and encouraged such extension. He afterward in a statesmanlike letter to Lewis Cass, secretary of war, dated Tuscaloosa, October 2, 1833, pointed out the inconsistency of the administration in admitting the jurisdictional rights of the State, and at the same time, by the enforcement of the treaty provision for the expulsion of the settlers, depriving the State of the means of enforcing its jurisdiction. For, along with other settlers, the court officials of the new counties and other persons necessary to enforce the laws of the State were to be removed, leaving no power to punish offences (sic) committed by the Indians or to subject them in any way to the restraints of the law.
Governor John Gayle
Indians were now citizens of the state and amenable to its laws
Governor Gayle emphasized the necessity for the action of the general assembly in forming the new counties. Aside from the fact that without this measure State laws could not be made to operate with effect upon a large and rapidly increasing white population, was the important consideration that the treaty having extinguished the Indian title to the land, “the Indians had become citizens of the State and amenable to its laws by their own consent.”
Governor Gayle seems to have been thoroughly impressed with the modern notion that the ownership of a definite territorial area by a people is essential to the idea of nationality. From his point of view, the Indians having ceded their territory, the Indian nation had by that act ceased to exist, and the individuals who had previously formed the nation within the boundary of Alabama had become, in some sense, citizens of the State to which they owed allegiance and from which they could demand protection. The fundamental and far-reaching contention of the State administration was that the general government could make no treaty in derogation of the right of the State to jurisdiction within its territorial boundaries. This contention found voice and explicit statement in one of a series of resolutions afterward introduced in the general assembly.
These resolutions were introduced December 1833, by Jesse Beene, one of the representatives from Dallas county, chairman of a special committee of the Indian troubles, and the fourth one, just referred to, was in the following words:
“Resolved, That the power conferred by the constitution of the United States upon the president and two-thirds of the senate to make treaties is limited and restrained by the grants of power therein contained, and that all treaties which encroach upon the reserved rights of the State are usurpations (sic) of power, subversive of government and destructive of civil liberty.” It was claimed that the “treaty doctrine” of dealing with Indian tribes within the limits of any particular State had been exploded for several years and that the president himself had uniformly acquiesced in the right of the States to enforce their laws throughout their boundaries—notably in what the Richmond Enquirer at that time called “his manly vindication of the rights of Georgia in the case of the Cherokee Indians.”
The mode of procedure in the proposed removals of intruders from the ceded territory was that provided by an act of congress, approved March 3, 1807, entitled “An act to prevent settlements being made on lands ceded to the United States, until authorized by law.” This act provided that removals should be made by the United States marshal, aided by military force if necessary, acting under orders from the president.
The position of Alabama, as it had been that of Georgia, was that the act of 1807 did not apply to intrusions upon lands lying within the boundaries of any State, and was applicable only in territories where State governments had not been established. In support of this position as to the general policy of the government in such matters, the case was cited where the commissioner of Indian affairs had, in effect, directed Colonel Josiah Harmar, in 1785, when he was engaged in removing settlers from the public lands in the West, not to use military force within the limits of any State.
Colonel Josiah Harmar
The second of the resolutions of the series, heretofore mentioned, introduced in the general assembly by Mr. Beene, formally set forth this position in these words: “Resolved, in the opinion of this general assembly, the act of congress, of 1807, was not intended to have effect within the limits of the States of the Union; that the execution of the provisions of said act, by military force, would be subversive of the rights of citizens, destructive of free government and incompatible with the jurisdiction and sovereignty of the States.”
Government at Washington took a different view
But the government at Washington apparently took a different view of the matter, and the United States marshal for the southern district of Alabama began the execution of his orders for removal. A collision occurred in which Hardeman Owens, formerly a citizen of Columbus, Georgia, a commissioner of roads and revenue for Russell county, was killed.
The late Jeremiah Austill one of the heroes of the famous “Canoe Fight,” was at that time the marshal for the southern district of Alabama, and he reported the killing of Owens to the secretary of war under date of “Creek nation, July 31, 1833.” He said that a number of chiefs had complained to him of alleged outrages committed by Owens, who lived twenty miles from Fort Mitchell—that he had taken their fields from them, had killed their hogs and horses, and had beaten some of the Indians severely.
When ordered by the marshal to leave the Indian nation, Owens replied that he would die before he would leave. The marshal left him, but soon returned with a detachment of soldiers and arrested him. Owens then promised to leave in peace, but before the marshal had gone more than fifteen miles, he was overtaken by some Indians who stated that Owens had threatened to burn their homes and kill anyone who dared to come upon the fields he had taken from them.
Mine set in house
When the marshal returned, Owens had sent his family off and had set a mine in his house. As the marshal was riding up to the gate, an Indian warned him that there was powder in the house. Just at that time Owens went out in the rear and escaped. The mine exploded, but fortunately, no one was hurt. Another detachment of Federal soldiers was sent to arrest Owens. He resisted, and when he was about to discharge a pistol at the sergeant in command, one of the soldiers fired upon him and killed him. “He was one of the most daring men I ever met with,” said Mr. Austill in his report, “and one of the most dangerous.”2
The action of the Federal officials in this matter, whether justifiable or not, aroused the strongest indignation throughout the new counties which rapidly spread to other counties of the State. Mass meetings were held, stirring resolutions were passed,3and steps were at once taken for meeting force with force.
It was at this juncture, when Federal troops were massing at Fort Mitchell ready to move into the newly organized counties for the purpose of removing settlers, that a timely proclamation from Governor Gayle addressed to “the citizens of the counties of the Creek nation” and dated October 7, 1833, had the effect of averting the needless effusion of blood.
After arraigning the Federal government for its inconsistent attitude in the matter of the removal, he urged the exasperated settlers to look with abiding and undoubting confidence to the majesty of the law, to yield a ready obedience to any processes from the courts of the United States and of the State of Alabama, and especially to abstain from all acts of unlawful violence towards the Indians, who being ignorant of our laws and of their rights, should be taught to look up to their more intelligent neighbors for information and protection. The address had the desired effect. The settlers in the new counties, feeling that the sympathy of the chief executive of the State was with them, listened to his wise words of counsel, and as the troops remained at Fort Mitchell, the danger of a further collision was for the time averted.
Officers and soldiers indicted for murder
The grand jury of Russell county promptly indicted for murder the officers and soldiers who had been instrumental in the death of Hardeman Owens, and a formal demand was made upon Major McIntosh, the commanding officer of Fort Mitchell, for their delivery into the custody of the civil authorities; but that officer refused to pay any attention to the mandate of the Russell county court, and swore that he would not suffer any of the men to be arrested.
The court then issued an attachment for the officer and his men; but the sheriff being warned by McIntosh not to touch him at his peril, returned to the court the next day and made oath that he could not execute the attachment for fear of death. Thereupon the presiding judge sent an express to Governor Gayle asking for military power sufficient to arrest Major McIntosh and his men and bring them before the court.
Anxiety over potential conflict between State and Federal troops
In his message to the general assembly, November 19, 1833, Governor Gayle called attention to these facts, and while asserting his legal power to call out the militia of the State to enforce the processes of the State courts, he stated that his anxiety to avoid armed conflict between State and Federal troops had induced him to take no other step than to forward the papers in the case to the secretary of war for the consideration of the president.
He also expressed the belief that the offenders would be delivered by the Federal authorities for trial by the State courts. It transpired afterward as the governor had believed. Mr. Lewis Cass, then secretary of war, some weeks later wrote to Governor Gayle that as soon as the report of the death of Hardeman Owens had reached the war department, instructions had been sent to Major McIntosh to facilitate, by all means in his power, any investigation which the civil authorities might consider necessary; but that there had been some mistake in the transmission of orders. The president now issued an order to the same effect direct to Major McIntosh, and the secretary of war then enclosed a copy of it to Governor Gayle.4
Military preparations made for the defense of settlers
The order of Governor Gayle, dated executive department, Tuscaloosa, 16th September, 1833, addressed to Brigadier General Thomas B. Scott, directing him to organize the militia of the new counties, probably justified, at that time, the declaration of the Tuscaloosa State Rights Expositor that “military preparations are making for the defense of the settlers;” but the terms of the order itself, in advance of the governor’s message to the legislature already referred to, showed that this was to be the last resort.
In closing his instructions to General Scott, Governor Gayle said: “In the present difficult, and to me painful and unexpected conjuncture, I earnestly recommend to our people, in selecting the officers, civil and military, embraced by this order, that they guard against all undue excitement, and that their choice be directed to those only who are distinguished by their prudence, firmness, and intelligence.”
Possibility of Civil War
The possibility of a state of civil war was fully appreciated by the supporters both of the State and the Federal administrations. The Mobile Commercial Register of December 1833, said: “We have just learned, from an authentic source, that orders have been issued from headquarters for the immediate marching of ten companies of United States artillery, completely equipped for the field, to Fort Mitchell in this State. This detachment, added to the troops already stationed at that post will constitute an effective force of fourteen companies; and it is probable that a general officer will be designated to the command.
How utterly misjudged, ill-timed and inappropriate are the sneers and taunts of the nullifiers that ‘the president has backed out,’ that ‘he has succumbed to Governor Gayle,’ and that he will not dare to execute laws and treaties, and maintain inviolate the plighted faith of the nation.” The intense interest and excitement over the issue extended beyond the borders of Alabama. Offers of volunteers from other States came to Governor Gayle. One of these which is especially noteworthy was dated “Hudson, New York, December 29, 1833,” and signed by J. VanVleck, N. T. Rosseter, and others, who, “sensible of the injustice with which Alabama was threatened in the proposed forcible removal of settlers from the Indian territory,” proposed to place a volunteer company of young men of that city under the governor’s orders.5
Dual character of government
Fortunately for those of that generation, the “irrepressible conflict” growing out of the dual character of our government had not yet reached its acutest phase. There was still room for compromise. The Alabama delegation in congress, composed at that time of William R. King and Gabriel Moore, in the senate, and of exGovernor John Murphy, Dixon H. Lewis, Clement C. Clay, and Samuel W. Mardis, in the house, exerted themselves to the utmost to bring about an amicable adjustment of the controversy.
Early in December 1833, Senator King and Representative Murphy secured, in a personal interview with President Jackson the guarantee that “no measures should be taken for the removal of the settlers who had not interfered with the possessions of the Indians’.” Following this interview, several of the Alabama delegation, at the suggestion of Secretary Cass, joined in a written address setting forth their views of the matter at issue.
In the meantime the administration commissioned Mr. Francis Scott Key, then serving as district attorney for the District of Columbia, to proceed to Alabama to aid the district attorney for the southern district in the legal investigations growing out of the conflict between State and Federal authority, and to represent the Federal government directly in its dealings with the State government in the matter of the proposed removal of settlers from the newly organized counties.
1However, the gubernatorial contest did not hinge upon the nullification issue, for neither of Governor Gayle’s opponents, Nicholas Davis, of Limestone and Samuel B. Moore, of Jackson, held opposing views on that question.
2It should be borne in mind that the circumstances attending the killing of Owens here given are based upon the ex-parte reports of Federal officers.
3Particularly strong were the resolutions passed at a mass meeting of the citizens of Lowndes county at Hayneville, Saturday, September 28, 1833, in which it was declared that “the removal of our citizens from their settlements by force is unconstitutional, oppressive, and utterly subversive of the sovereignty of the State, and we cannot and will not submit to it.”
4 Niles Register December 28, 1833, editorially exclaims: “A Gordian Knot has been cut! The soldier who killed Owens in Alabama has deserted, and the officer who commanded has given bond for his appearance in court.” In this connection, Mr. Key after his return to Washington wrote to Governor Gayle under date of June n, 1834: “As the officers and soldiers will not be forthcoming to take their trial, I shall not have the pleasure of defending them, and you will have to forfeit their bond.”
5This document, with many others of the period, is preserved in Colonel Joseph Hodgson’s excellent book, The Cradle of the Confederacy, p. 195. It was Colonel Hodgson’s good fortune in the preparation of the eighth chapter of his book to have placed at his disposal the correspondence of Governor Gayle by his accomplished daughter, the late Mrs. Anna Maria (Gayle) Bayne, wife of the distinguished New Orleans lawyer. Colonel Thomas L. Bayne, now deceased. Copies of all of this correspondence are now in the hands of Thomas M. Owen, the Director of the Department of Archives and History, Montgomery.
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