Among other laws passed by the State of Georgia was one that went into
effect on the 1st of February, 1831, which prohibited the Cherokees
from holding councils, or assembling for any purpose; provided for a
distribution of their lands among her citizens; required all whites
residing in the Cherokee Nation within her chartered limits to take an
oath of allegiance to the State, and made it an offense punishable by
four years' imprisonment in the penitentiary to refuse to do so. Under
this law two missionaries, Messrs. Worcester and Butler, were indicted
in the superior court of Gwinnett County for residing without license
in that part of the Cherokee country attached to Georgia by her laws
and in violation of the act of her legislature approved December 22,
1830. In the trial of Mr. Worcester's case, which was subsequently made
the test case in the Supreme Court of the United States, he pleaded
that he was a citizen of Vermont and entered the Cherokee country as a
missionary with the permission of the President of the United States
and the approval of the Cherokee Nation; that Georgia ought not to
maintain the prosecution inasmuch as several treaties had been entered
into by the United States with the Cherokee Nation, by which the latter
were acknowledged as a sovereign nation, and by which the territory
occupied by them had been guaranteed to them by the United States.
The superior court overruled this plea, and Mr. Worcester was tried,
convicted, and sentenced to four years in the penitentiary.
The case was carried up on a writ of error to the Supreme Court of the
United States, and that court asserted its jurisdiction. In rendering
its decision the court remarks that the principle that discovery of
parts of the continent of America gave title to the government by
whose subjects or by whose authority it was made against all other
European governments, which title might be consummated by possession,
was acknowledged by all Europeans because it was the interest of all to
acknowledge it, and because it gave to the nation making the discovery,
as its inevitable consequence, the sole right of acquiring the soil
and of making settlements on it. It was an exclusive principle which
shut out the right of competition among those who had agreed to it,
but not one which could annul the rights of those who had not agreed
to it. It regulated the rights of the discoverers among themselves,
but could not affect the rights of those already in possession as
aboriginal occupants. It gave the exclusive right of purchase, but
did not found it on a denial of the right of the possessor to sell.
The United States succeeded to all the claims of Great Britain, both
territorial and political. Soon after Great Britain had determined on
planting colonies in America the King granted sundry charters to his
subjects. They purport generally to convey the soil from the Atlantic
to the South Sea. The soil was occupied by numerous warlike nations,
milling and able to defend their possessions. The absurd idea that
feeble settlements made on the sea-coast acquired legitimate power to
govern the people or occupy the lands from sea to sea did not then
enter the mind of any man. These charters simply conferred the right
of purchasing such lands as the natives were willing to sell. The
acknowledgment of dependence made in the various Cherokee treaties with
Great Britain and the United States merely bound them as a dependent
ally claiming the protection of a powerful friend and neighbor and
receiving the advantages of that protection, without involving a
surrender of their national character. Neither the Government nor the
Cherokees ever understood it otherwise. Protection did not imply the
destruction of the protected.
Georgia herself had furnished conclusive evidence that her former
opinions on the subject of the Indians concurred with those entertained
by her sister States and by the Government of the United States.
Various acts of her legislature had been cited in the argument of the
case, including the contract of cession made in 1802, all tending to
prove her acquiescence in the universal conviction that the Cherokee
Nation possessed a full right to the lands they occupied, until that
right should be extinguished by the United States with their consent;
that their territory was separated from that of any State within whose
chartered limits they might reside, by a boundary line established by
treaties; that within their boundary they possessed rights with which
no State could interfere, and that the whole power of regulating the
intercourse with them was vested in the United States. The legislation
of Georgia on this subject was therefore unconstitutional and void.[372]
_Georgia refuses to submit to the decision of the Supreme
Court._--Georgia refused to submit to the decision and alleged that the
court possessed no right to pronounce it, she being by the Constitution
of the United States a sovereign and independent State, and no new
State could be formed within her limits without her consent.
_President Jackson's dilemma._--The President was thus placed between
two fires, Georgia demanding the force of his authority to protect
her constitutional rights by refusing to enforce the decision of the
court, and the Cherokees demanding the maintenance of their rights as
guaranteed them under the treaty of 1791 and sustained by the decision
of the Supreme Court.
It was manifest the request of both could not be complied with. If
he assented to the desire of the Cherokees a civil war was likely to
ensue with the State of Georgia. If he did not enforce the decision and
protect the Cherokees, the faith of the nation would be violated.[373]
In this dilemma a treaty was looked upon as the only alternative, by
which the Cherokees should relinquish to the United States all their
interest in lands east of the Mississippi and remove to the west of
that river, and more earnest, urgent, and persistent pressure than
before was applied from this time forward to compel their acquiescence
in such a scheme.