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and so as aforesaid, held by them, under with the said Cherokee nation, which, the guaranty of the United States : that,
by the said constitution, belongs exclu. for those acts, the defendant is not sively to the congress of the United amenable to the laws of Georgia, nor States; and because the said laws are to the jurisdiction of the courts of the repugnant to the statute of the United said state; and that the laws of the state States, passed on the - day of March, of Georgia, which profess to add the 1802, entitled . an act to regulate trade said territory to the several adjacent and intercourse with the Indian tribes, counties of the said state, and to extend and to preserve peace on the frontiers :' the laws of Georgia over the said terri- and that, therefore, this court has no jutory, and persons inhabiting the same; risdiction to cause this defendant to make and, in particular, the act on which this further or other answer to the said bill indictment vs. this defendant is ground- of indictment, or further to try and pun. ed, to wit: an act entitled an act to ish this defendant for the said supposed prevent the exercise of assumed and ar- offence or cffences alleged in the hill of bitrary power, by all persons, under pre- indictment, or any of them : and, there. text of authority from the Cherokee In- fore, this defendant prays judgment dians, and their laws, and to prevent whether he shall be held bound to an. white persons from residing within that swer further to said indictment? part of the chartered limits of Georgia, Georgia, Gwinnett county : occupied by the Cherokee Indians, and
Personally appeared in open court, to provide a guard for the protection of Samuel A. Worcester, and, being sworn, the gold mines, and to enforce the laws
saith, that the several matters and things of the state within the aforesaid territo
contained in the above and foregoing ry,' are repugnant to the aforesaid trea
plea, are true in substance and in fact. ties; which, according to the constitu- Sworn to, and subscribed in open tion of the United States, compose a
court, this 15th September, 1831. part of the supreme law of the land;
SAMUEL A. WORCESTER. and that these laws of Georgia are, John G. PARK, clerk. therefore, unconstitutional, void, and of no effect : that the said laws of Georgia
September term, 1831. are also unconstitutional and void, be
Pleas to the jurisdiction, &c, overruled
by the court. cause they impair the obligation of the
Arraigned, and plead not guilty. various contracts formed by and between the aforesaid Cherokee nation and the
Copy bill, and list of witnessess, waved, said United States of America, as above
T. H. TRIPPE, Sol. Gen. recited: also, that the said laws of Geor
Verdict. gia are unconstitutional and void, be- We, the jury, find the defendants guilty. cause they interfere with, and attempt
JAMES H. GILREATH, foreman. to regulate and control, the intercourse SEPTEMBER 15TH, 1831.
SENTENCE. The State, vs. B. F. Thompson, and others. [Indictment for residing in the Cherokee nation without license. Verdict, ' guilty.']
The State, v3. Elizur Butler, Samuel A. Worcester, and others. [Indictment for residing in the Cherokee nation without license. Verdict,‘guilty.') Samuel A. Worcester, vs. The State of Georgia.
The defendants, in both of the above
error, versus the state of Georgia, was cases, shall be kept in close custody, by brought before the supreme court in the the sheriff of this county, until they can be transported to the penitentiary of this
Both cases came state, and the keeper thereof is hereby
on for argument on directed to receive them, and each of the 20th of February 1832, and they them, into his custody, and keep them,
were argued by Mr Sergeant and Mr and each of them, at hard labor in said
Wirt, for the plaintiffs in error. There penitentiary for and during the terin of
was no appearance for the state of Georgia. four years.
On the 3d day of March, 1832, Mr
Chief Justice Marshall delivered the The case of Elizur Butler, plaintiff in opinion of the court.
[Opinion of the supreme court of the United States, delivered by Mr Chief Justice
Marshall, at January term, 1832.]
This cause in every point of view in This has been done. But the signawhich it can be placed, is of the deep- ture of the judge has not been added to est interest.
that of the clerk. The law does not reThe defendant is a state, a member of quire it. The rule does not require it. the Union, which has exercised the pow
In the case of Martin vs. Hunter's ers of government over a people who lessee, an exception was taken to the deny its jurisdiction, and are under the 'return of the refusal of the state court protection of the United States.
to enter a prior judgment of reversal by The plaintiff is a citizen of the state this court, because it was not made by of Vermont, condemned to hard labor the judge of the state court to which for four years in the penitentiary of the writ was directed ; but the excepGeorgia, under color of an act which he tion was overruled, and the return was alleges to be repugnant to the constitu- held sufficient. In Buel vs. Van Ness, tion, laws and treaties, of the United also a writ of error to a state court, the States.
record was authenticated in the same The legislative power of a state, the manner. No exception was taken to it. controlling power of the constitution These were civil cases. But it has and laws of the United States, the rights, been truly said at the bar, that, in reif they have any, the political existence gard to this process, the law joakes no of a once numerous and powerful peo
distinction between a criminal and civil ple, the personal liberty of a citizen, The same return is required in are all involved in the subject now to
both. If the sanction of the court could be considered.
be necessary for the establishment of It behooves this court, in every case,
this position, it has been silently given. more especially in this, to examine into McCulloh vs. the state of Maryland,ll its jurisdiction with scrutinizing eyes, was a qui tam action, brought to recova before it proceeds to the exercise of a er a penalty, and the record was authenpower which is controverted,
ticated by the seal of the court and the The first step in the performance of signature of the clerk, without that of a this duty is the inquiry whether the judge. Brown et al. vs. the state of record is properly before the court. Maryland, was an indictment for a fine
It is certified by the clerk of the court and forfeiture. The record in this case, which pronounced the judgment of con- too, was authenticated by the seal of demnation under which the plaintiff in the court and the certificate of the clerk. error is imprisoned, and is also authenti- The practice is both ways. cated by the seal of the court. It is re- The record, then, according to the juturned with, and annexed to, a writ of diciary act, and the rule and the pracerror issued in regular form, the citation tice of the court, is regularly before us. being signed by one of the associate jus. The more important inquiry is, does it tices of the supreme court, and served exhibit a case cognizable by this tribuon the governor and attorney general of nal? the state more than thirty days before The indictment charges the plaintiff the commencement of the term to which in error, and others, being white persons, the writ of error was returnable.
with the offence of residing within the The judicial act,* so far as it prescribes livnits of the Cherokee nation without a the mole of proceeling, appears to have license,' and ' without having taken the been literally pursued.
oath to support and defend the constituIn February, 1797, a rulet was made tion and laws of the state of Georgia.' on this subject, in the following words:
The defendant in the state court apIt is ordered by the court, that the peared in proper person, and filed the clerk of the court to which any writ of following plea: error shall be directed, may make return
• And the said Samuel A. Worcester, of the saine by transmitting a true copy in his own proper person, comes and of the record, and of all proceedings in says, that this court ought not to take the same, under his hand and the seal of further cognizance of the action and the court.'
prosecution aforesaid, because, he says, * Judicial act, sec. 22, 25, v. 2. pp. 64, 65.
Ist. Wh. 304, 361. | 6 Wh. Rules.
8th Wb. 312.
that, on the 15th day of July, in the year their own territory; and, by which trea1831, he was, and still is, a resident in ties, the whole of the territory now octhe Cherokee nation; and that the said cupied by the Cherokee nation, on the supposed crime or crimes, and each of east of the Mississippi has been solemn. them, were committed, if coinmitted at ly guaranteed to them; all of which all, at the town of New Echota, in the treaties are existing treaties at this day, said Cherokee nation, out of the juris- and in full force. By these treaties, diction of this court, and not in the and particularly by the treaties of Hopecounty Gwinnett, or elsewhere within well and Holston, the aforesaid territory the jurisdiction of this court: And this is acknowledged to lie without the judefendant saith, that he is a citizen of risdiction of the several states composthe state of Vermont, one of the United ing the union of the United States; and, States of Ainerica, and that he entered it is thereby specially stipulated, that the aforesaid Cherokee nation in the ca- the citizens of the United States shall pacity of a duly authorised missionary not enter the aforesaid territory, even of the American board of coinmissioners on a visit, without a passport from the for foreign missions, under the authority governor of a state, or from some one of the President of the United States, duly authorised thereto, by the presiand has not since been required by him dent of the United States : all of which to leave it: that he was, at the time of will more fully and at large appear, by his arrest, engaged in preaching the reference to the aforesaid treaties. And gospel to the Cherokee Indians, and in this defendant saith, that the several acts translating the sacred Scriptures into charged in the bill of indictment, were their language, with the permission and done, or omitted to be done, if at all, approval of the said Cherokee nation, within the said territory so recognised and in accordance with the humane pol- as belonging to the said nation, and so, icy of the government of the United as aforesaid, held by them, under the States for the civilization and improve- guaranty of the United States; that, for meat of the Indians; and that his resi- those acts, the defendant is not amenadence there, for this purpose, is the res. ble to the laws of Georgia, nor to the idence charged in the aforesaid indict. jurisdiction of the courts of the said ment: and this defendant further saith, state ; and that the laws of the state of that this prosecution the State of Geor- Georgia, which profess to add the said gia ought not to have or maintain, be- territory to the several adjacent counties cause, he saith, that several treaties of the said state, and to extend the laws have, froin time to tiine, been entered of Georgia over the said territory, and into between the United States and the persons inbabiting the same ; and, in Cherokee nation of Indians, to wit: at particular, the act on which this indict. Hopewell, on the 28th day of Novem. ment vs. this defendant is grounded, to ber, 1785 ; at Holston, on the 21 day of wit; “An act entitled an act to prevent July, 1791 ; at Philadelphia, on the 26th the exercise of assumed and arbitrary day of June, 1791; at Tellico, on the power, by all persons, under pretext of 2d day of October, 1798 ; at Tellico, on authority from the Cherokee Indians, the 21th day of October, 180+; at Tel- and their laws, and to prevent white lico, on the 25th day of October, 1305 ; persons from residing within that part of at Tellico, on the 27th day of October, the chartered limits of Georgia, occu• 1805 ; at Washington city, on the 7th pied by the Cherokee Indians, and to day of January, 1805; at Washington provide a guard for the protection of the city, on the 22d day of March, 1816 ; at gold mines, and to entorce the laws of the Chickasaw council house, on the 14th the state within the aforesaid territory,' day of September, 1816 ; at the Chero- are repugnant to the aforesaid treaties; kee agency, on the 8th day of July, which, according to the constitution of 1817; and at Washington city, on the the United States, compose a part of the 27th day of February, 1819; all which supreme law of the land, and that these treaties have been duly ratified by the Jaws of Georgia are, therefore, unconsenate of the United States of America ; stitutional, void, and of no effect; that and, by which treaties, the United States the said laws of Georgia are also uncon. of America acknowledge the said Cher- stitutional and void, because they impair okee nation to be a sovereign nation, au- the obligation of the various contracts thorised to govern themselves, and all formed by and between the aforesaid persons who have settled within their Cherokee nation and the said United territory, free from any right of legisla. States of America, as above recited; tive interference by the several stales also, that the said laws of Georgia are composing the United States of Ameri- unconstitutional and void, because they ca, in relerence to acis done within interfere with, and attempt to regulate
and control the intercourse with the That section enumerates the cases in said Cherokee nation, which, by the which the final judgment or decree of a said constitution, belongs exclusively to state court may be revised in the suthe Congress of the United States; and preme court of the United States. These because the said laws are repugnant to are, ` where is drawn in question the va. the statule of the United States, passed lidity of a treaty or statute of, or an au
day of March, 1802, entitled thority exercised under, the United • An act to regulate trade and inter- States and the decision is against their course with the Indian tribes, and to validity; or where is drawn in question preserve peace on the frontiers; and
the validity of a statute of, or an authat, therefore, this court has no juris- thority exercised under, any state, on diction to cause this defendant to make the ground of their being repugnant to further or other answer to the said bill the constitution, treaties, or laws, of the of indictinent, or further to try and pun. United States, and the decision is in faish this defendant for the said supposed vor of such their validity; or where is offence or offences alleged in the bill of drawn in question the construction of indictment, or any of them; and, there- any clause of the constitution, or of a fore, this defendant prays judgment treaty, or statute of, or commission held whether he shall be held bound to an- under, the United States, and the deci. swer further to said indictment.'
sion is against the title, right, privilege This plea was overruled by the court. or exemption, specially set up or claimed And the prisoner, being arraigned, plead- by either party, under such clause of ed not guilty. The jury found a verdict the said constitution, treaty, statute, or against him, and the court sentenced commission.' him to hard labor, in the penitentiary, The indictment and plea, in this case, for the term of four years.
draw in question, we think, the validity By overruling this plea, the court de- of the treaties made by the United cided that the matter it contained was States with the Cherokee Indians : if not a bar to the action.
not so, their construction is certainly therefore, must be examined, for the
drawn in question ; and the decision has purpose of determining whether it been, if not against their validity, makes a case which brings the party against the right, privilege, or exempwithin the provisions of the 25th section tion, specially set up and claimed under of the Act to establish the judicial them. They also draw into question courts of the United States.'
the validity of a statute of the state of The plea avers that the residence, Georgia, on the ground of its being recharged in the indictment, was under
pugnant to the constitution, treaties and the authority of the president of the laws, of the United States, and the deUnited States, and with the permission cision is in favor of its validity.' and approval of the Cherokee nation. It is then, we think, too clear for conThat the treaties, subsisting between troversy, that the act of congress, by the United States and the Cherokees, which this court is constituted, has given acknowledge their right as a sovereign it the power, and, of course, imposed on nation to govern themselves and all per- it the duty of exercising jurisdiction in sons who have settled within their terri
This duty, however unpleas. tory, free from any right of legislative ant, cannot be avoided. Those who fill interference by the several states com- the judicial department have no discreposing the United States of America. tion in selecting the subjects to be That the act under which the prosecu. brought before them. We must examtion was instituted is repugnant to the ine the defence set up in this plea. We treaties, and is, therefore, unconstitu. must inquire and decide whether the act tional and void. "That the said act is, of the legislature of Georgia, under which also, unconstitutional; because it inter: the plaintiff in error has been prosecuted feres with, and attempts to regulate and and condemned; be consistent with, or control the intercourse with the Chero
repugnant to, the constitution, laws and kee nation, which belongs, exclusively, treaties, of the United States. to congress ; and, because, also, it is re- It has been said at the bar, that the pugnant to the statute of the United acts of the legislature of Georgia seized States, entitled 'An act to regulate trade, on the whole Cherokee country, parcel it and intercourse with the Indian tribes
out among the neighboring counties of and to preserve peace on the frontiers." the state, extend her code over the
Let the averments of this plea be whole country, abolish its institutions compared with the 25th section of the and its laws, and annihilate its political judicial act.
If this be the general effect of the sys- her adventurous sons into this western tem, let us inquire into the effect of the world. They found it in possession of particular statute aud section on which a people who had made small progress the indictment is founded.
in agriculture or manufactures, and It enacts that all white persons, re- whose general employment was war, siding within the limits of the Cherokee hunting and fishing. nation on the first day of March next, or Did these adventurers, hy sailing along at any time thereafter, without a license the coast, and occasionally landing on it, or permit from his excellency the gove acquire for the several governments 10 ernor, or from such agent as his excel. whom they belonged, or by whom they lency the governor shall authorise to were commissioned, a rightful property grant such permit or license, and who in the soil, from the Atlantic to the Pa. shall not have taken the oath hereinafter cific; or rightful dominion over the nu. required, shall be guilty of a high misde- merous people who occupied it? Or has meanor, and, upon conviction thereof, nature, or the great Creator of all things shall be punished by confinement to the conferred these rights over hunters and penitentiary at hard labor, for a term not fishermen, on agriculturists and manuless than four years.?
facturers ? The 11th section authorises the gov. But power, war, conquest, give rights, ernor, ' should he deem it necessary for which, after possession, are conceded by the protection of the mines, or the en- the world, and which can never be conforcement of the laws in force within the troverted by those on whom they deCherokee nation, to raise and organize a scend. We proceed, then, to the actual guard,' &c.
state of things, having glanced at their The 13th section enacts, "that the origin; because holding it in our recolsaid guard or any member of them, shall lection might shed soine light on esist. be, and they are hereby, authorised and ing pretensions. empowered to arrest any person legally The great maritime powers of Eu. charged with or detected in a violation rope discovered and visited different of the laws of this state, and to convey, parts of this continent at nearly the as soon as practicable, the person so ar- same time. The object was too imrested, before a justice of the peace, mense for any one of them to grasp the judge of the superior, or justice of infe- whole; and the claimants were too porrior court of this state, to be dealt with erful to submit to the exclusive or unaccording to law.'
reasonable pretensions of any single poThe extra territorial power of every tentate. To avoid bloody conflicts
, legislature being limited in its action, to which might terminate disastrously to its own citizens or subjects, the very all, it was necessary for the nations of passage of this act is an assertion of ju. Europe to establish some principle which risdiction over the Cherokee nation, and all would acknowledge, and which of the rights and powers consequent on should decide their respective rights as jurisdiction.
between themselves. This principle, The first step, then, in the inquiry suggested by the actual state of things, which the constitution and laws impose was,' that discovery gave title to the on this court, is an examination of the
government by whose subjects or by rightfulness of this claim.
whose authority it was made, against America, separated from Europe by a all other European goveroments, which wide ocean, was inhabited by a distinct title might be consummated by possespeople, divided into separate nations, in- sion.'* dependent of each other and of the rest This principle, acknowledged by all of the world, having institutions of their Europeans, because it was the interest own, and governing themselves by their of all to acknowledge it, gave to the na. own laws. It is difficult to comprehend tion making the discovery, as its inevitthe proposition, that the inhabitants of able consequence, the sole right of aceither quarter of the globe could have
quiring the soil and of making settlerightful original claims of dominion over ments on it. It was an exclusive prin. the inhabitants of the other, or over the ciple, which shut out the right of coinlands they occupied; or that the discov- petition among those who had agreed to ery of either by the other should give it; not one which could annul the prethe discoverer, rights to the country dis- vious rights of those who had not agreed covered, which annulled the pre-exist- to it. It regulated the right given by dising rights of its ancient possessors. covery anjong the European discoverAfter lying concealed for a series of
ers; but could not effect the rights of ages, the enterprise of Europe, guided by nautical science, conducted some of
* 8th Wh. 573.