OPINION OF THE SUPREME COURT OF THE UNITED STATES,
AT JANUARY TERM, 1832,
DELIVERED BY MR. CHIEF JUSTICE MARSHALL.
IN THE CASE OF
SAMUEL A. WORCESTER, _Plaintiff in Error_,
_versus_
THE STATE OF GEORGIA
With a statement of the case, extracted from
the Records of the Supreme Court of the United States.
Printed from Authenticated Copies.
Washington:
Printed by Gales and Seaton.
1852.
OPINION, &c.
SAMUEL A. WORCESTER, _Plaintiff in Error_,
_vs._
THE STATE OF GEORGIA.
A writ of error was issued from the Supreme Court of the United States,
directed to "the honorable the Judges of the Superior Court for the
County of Gwinnett, in the State of Georgia," commanding them to "send
to the said Supreme Court of the United States, the record and
proceedings in the said Superior Court of the County of Gwinnett,
between the State of Georgia, Plaintiff, and Samuel A. Worcester,
Defendant, on an indictment in that Court."
This writ of error was returnable on the second Monday of January, 1832,
and was attested by the Honorable HENRY BALDWIN, one of the Associate
Justices of the Supreme Court of the United States.
A citation was issued, directed to "the State of Georgia," dated October
27, 1831, and signed by the Honorable HENRY BALDWIN, by which the said
State was cited to show cause why the error in the judgment against
Samuel A. Worcester, in the writ of error mentioned, if there was any
error, should not be arrested, and why speedy justice should not be done
to the parties in that behalf.
The citation was served on his Excellency WILSON LUMPKIN, Governor of
the State of Georgia, on the 24th November, 1831, and on CHARLES J.
JENKINS, Esq. Attorney General of the said State, on the 22d November,
1831.
The writ of error was returned to the Supreme Court of the United
States, with the record of the proceedings in the Court for the County
of Gwinnett annexed thereto, and with the following certificate, under
the seal of the Court:
GEORGIA, _Gwinnett County, ss._
I, John G. Park, Clerk of the Superior Court for the County of
Gwinnett, and State aforesaid, do certify that the annexed and
foregoing is a full and complete exemplification of the proceedings and
judgment had in said Court, against Samuel A. Worcester, one of the
Defendants in the case therein mentioned as of record in the said
Superior Court.
Given under my hand, and the seal of the Court, this 28th day of
November, 1831.
JOHN G. PARK, _Clerk_.
_The following is a copy of the Record_:
"GEORGIA, _Gwinnett county_:
The grand jurors, sworn, chosen, and selected for the county of
Gwinnett, to wit: John S. Wilson, Isaac Gilbert, James Wells, Jr.,
Benjamin S. Smith, James W. Moore, Robert Craig, John M. Thompson,
Hamilton Garmany, Amos Wellborn, William Green, Buckner Harris, William
Rakestraw, Jones Douglass, Wiley Brogdon, B. F. Johnson, Wilson
Strickland, Richard J. Watts, and John White--
In the name and behalf of the citizens of Georgia, charge and accuse
Elizur Butler, Samuel A. Worcester, James Trott, Samuel Mays, Surry
Eaton, Austin Copeland, and Edward D. Losure, white persons of said
county, with the offence of 'residing within the limits of the Cherokee
nation, without a licence:' For that the said Elizur Butler, Samuel A.
Worcester, James Trott, Samuel Mays, Surry Eaton, Austin Copeland, and
Edward D. Losure, white persons as aforesaid, on the fifteenth day of
July, eighteen hundred and thirty one, _did reside_ in that part of the
Cherokee nation attached by the laws of said State to the said county,
and in the county aforesaid, without a licence or permit from his
Excellency the Governor of said State, or from any agent authorized by
his Excellency the Governor aforesaid to grant such permit or licence,
and without having taken the oath to support and defend the constitution
and laws of the State of Georgia, and uprightly to demean themselves as
citizens thereof, contrary to the laws of said State, the good order,
peace, and dignity, thereof.
TURNER H. TRIPPE, _Sol. Gen'l._
JNO. W. A. SANFORD, _Pros'r._
_September_, 1831.
True bill:--JOHN S. WILSON, _Foreman_.
_Witnesses Sworn._--John W. A. Sanford, Charles H. Nelson, Moses
Cantrell, William Wood, Jacob R. Brooks, Jno. F. Cox, William Tippins,
Hubbard Barker.
GWINNETT SUPERIOR COURT, _September Term_, 1831.
STATE OF GEORGIA, }
_vs._ } _Indictment for a_
SAMUEL A. WORCESTER, ELIZUR BUTLER, } _misdemeanor._
AND OTHERS. }
And the said Samuel A. Worcester, in his own proper person, comes and
says, that this Court ought not to take further cognizance of the action
and prosecution aforesaid, because, he says, that, on the 15th day of
July, in the year 1831, he was, and still is, a resident in the Cherokee
nation; and that the said supposed crime, or crimes, and each of them,
were committed, if committed at all, at the town of New Echota, in the
said Cherokee nation, out of the jurisdiction of this court, and not in
the county Gwinnett, or elsewhere within the jurisdiction of this Court.
And this defendant saith, that he is a citizen of the State of Vermont,
one of the United States of America, and that he entered the aforesaid
Cherokee nation in the capacity of a duly authorized missionary of the
American Board of Commissioners for Foreign Missions, under the
authority of the President of the United States, and has not since been
required by him to leave it: that he was, at the time of his arrest,
engaged in preaching the Gospel to the Cherokee Indians, and in
translating the sacred Scriptures into their language, with the
permission and approval of the said Cherokee nation, and in accordance
with the humane policy of the Government of the United States, for the
civilization and improvement of the Indians; and that his residence
there, for this purpose, is the residence charged in the aforesaid
indictment: and this defendant further saith, that this prosecution the
State of Georgia ought not to have or maintain, because, he saith, that
several treaties have, from time to time, been entered into between the
United States and the Cherokee nation of Indians, to wit: at Hopewell,
on the 28th day of November, 1785; at Holston, on the 2d day of July,
1791; at Philadelphia, on the 26th day of June, 1794; at Tellico, on the
2d day of October, 1798; at Tellico, on the 24th day of October, 1804;
at Tellico, on the 25th day of October, 1805; at Tellico, on the 27th
day of October, 1805; at Washington City, on the 7th day of January,
1805; at Washington City, on the 22d day of March, 1816; at the
Chickasaw Council House, on the 14th day of September, 1816; at the
Cherokee Agency, on the 8th day of July, 1817, and at Washington City,
on the 27th day of February, 1819: all which treaties have been duly
ratified by the Senate of the United States of America; and, by which
treaties, the United States of America acknowledge the said Cherokee
nation to be a sovereign nation, authorized to govern themselves, and
all persons who have settled within their territory, free from any right
of legislative interference by the several States composing the United
States of America, in reference to acts done within their own territory;
and, by which treaties, the whole of the territory now occupied by the
Cherokee nation, on the East of the Mississippi, has been solemnly
guarantied to them; all of which treaties are existing treaties at this
day, and in full force. By these treaties, and particularly by the
treaties of Hopewell and Holston, the aforesaid territory is
acknowledged to lie without the jurisdiction of the several States
composing the Union of the United States; and, it is thereby specially
stipulated, that the citizens of the United States shall not enter the
aforesaid territory, even on a visit, without a passport from the
governor of a State, or from some one duly authorized thereto, by the
President of the United States: all of which will more fully and at
large appear, by reference to the aforesaid treaties. And this defendant
saith, that the several acts charged in the bill of indictment, were
done, or omitted to be done, if at all, within the said territory so
recognized as belonging to the said nation, and so, as aforesaid, held
by them, under the guaranty of the United States: that, for those acts,
the defendant is not amenable to the laws of Georgia, nor to the
jurisdiction of the courts of the said State; and that the laws of the
State of Georgia, which profess to add the said territory to the several
adjacent counties of the said State, and to extend the laws of Georgia
over the said territory, and persons inhabiting the same; and, in
particular, the act on which this indictment _vs._ this defendant is
grounded, to wit: "An act entitled an act to prevent the exercise of
assumed and arbitrary power, by all persons, under pretext of authority
from the Cherokee Indians, and their laws, and to prevent white persons
from residing within that part of the chartered limits of Georgia,
occupied by the Cherokee Indians, and to provide a guard for the
protection of the gold mines, and to enforce the laws of the State
within the aforesaid territory," are repugnant to the aforesaid
treaties; which, according to the constitution of the United States,
compose a part of the supreme law of the land; and that these laws of
Georgia are, therefore, unconstitutional, void, and of no effect: that
the said laws of Georgia are also unconstitutional and void, because
they impair the obligation of the various contracts formed by and
between the aforesaid Cherokee nation and the said United States of
America, as above recited: also, that the said laws of Georgia are
unconstitutional and void, because they interfere with, and attempt to
regulate and control, the intercourse with the said Cherokee nation,
which, by the said constitution, belongs exclusively to the Congress of
the United States; and because the said laws are repugnant to the
statute of the United States, passed on the ---- day of March, 1802,
entitled "An act to regulate trade and intercourse with the Indian
tribes, and to preserve peace on the frontiers:" and that, therefore,
this Court has no jurisdiction to cause this defendant to make further
or other answer to the said bill of indictment, or further to try and
punish this defendant for the said supposed offence or offences alleged
in the bill of indictment, or any of them: And, therefore, this
defendant prays judgment whether he shall be held bound to answer
further to said indictment?
GEORGIA, _Gwinnett county_:
Personally appeared in open court, Samuel A. Worcester, and, being
sworn, saith, that the several matters and things contained in the
above and foregoing plea, are true in substance and in fact.
Sworn to, and subscribed in open court, this 15th September, 1831.
SAMUEL A. WORCESTER.
JOHN G. PARK, _Clerk_.
_September Term_, 1831.
Pleas to the jurisdiction, &c. overruled by the court.
Arraigned, and pled not guilty.
Copy bill, and list of witnesses, waived.
T. H. TRIPPE, _Sol. Gen._
_Jury sworn and empannelled._
1. James H. Gilreath,
2. Benjamin Towers,
3. Joseph Bolton,
4. Thomas Weems,
5. John Moffett,
6. Wade Peavy,
7. John L. Tippens,
8. Thomas Burge,
9. Eli Elkins,
10. Wm. W. Downs,
11. Matthew Brown,
12. Geo. R. Edwards.
_Verdict._
We, the jury, find the defendants guilty.
JAMES H. GILREATH, _Foreman._
_September_ 15_th_, 1831.
_Sentence._
THE STATE, } _Indictment for residing in the_
_vs._ } _Cherokee nation without license:_
B. F. THOMPSON, AND OTHERS. } _Verdict, "Guilty."_
THE STATE, }
_vs._ } _Indictment for residing in the_
ELIZUR BUTLER, SAMUEL A. } _Cherokee nation without license:_
WORCESTER, AND OTHERS. } _Verdict, "Guilty."_
The defendants, in both of the above cases, shall be kept in close
custody, by the sheriff of this county, until they can be transported
to the penitentiary of this State, and the keeper thereof is hereby
directed to receive them, and each of them, into his custody, and keep
them, and each of them, at hard labor in said penitentiary, for and
during the term of four years."
The case of Elizur Butler, Plaintiff in Error, _versus_ the State of
Georgia, was brought before the Supreme Court in the same manner.
Both cases came on for argument on the 20th of February, 1832, and they
were argued by Mr. Sergeant and Mr. Wirt, for the Plaintiffs in Error.
There was no appearance for the State of Georgia.
On the 3d day of March, 1832, Mr. Chief Justice MARSHALL delivered the
opinion of the Court.
SAMUEL A. WORCESTER, } Opinion of the Supreme Court
_vs._ } of the United States, delivered
THE STATE OF GEORGIA. } by Mr. Chief Justice Marshall,
} at January Term, 1832.
This cause, in every point of view in which it can be placed, is of the
deepest interest.
The defendant is a State, a member of the Union, which has exercised
the powers of government over a People who deny its jurisdiction, and
are under the protection of the United States.
The plaintiff is a citizen of the State of Vermont, condemned to hard
labor for four years in the penitentiary of Georgia, under color of an
act which he alleges to be repugnant to the constitution, laws, and
treaties, of the United States.
The legislative power of a State, the controlling power of the
constitution and laws of the United States, the rights, if they have
any, the political existence of a once numerous and powerful People,
the personal liberty of a citizen, are all involved in the subject now
to be considered.
It behooves this Court, in every case, more especially in this, to
examine into its jurisdiction with scrutinizing eyes, before it
proceeds to the exercise of a power which is controverted.
The first step in the performance of this duty is the inquiry whether
the record is properly before the Court.
It is certified by the clerk of the Court which pronounced the judgment
of condemnation under which the plaintiff in error is imprisoned, and
is also authenticated by the seal of the Court. It is returned with,
and annexed to, a writ of error issued in regular form, the citation
being signed by one of the Associate Justices of the Supreme Court, and
served on the Governor and Attorney General of the State more than
thirty days before the commencement of the term to which the writ of
error was returnable.
The Judicial act,[1] so far as it prescribes the mode of proceeding,
appears to have been literally pursued.
[1] Judicial act, sec. 22, 25, v. 2. pp. 64, 65.
In February, 1797, a rule[2] was made on this subject, in the following
words: "It is ordered by the Court, that the clerk of the Court to
which any writ of error shall be directed, may make return of the same
by transmitting a true copy of the record, and of all proceedings in
the same, under his hand and the seal of the Court."
[2] 6 Wh. Rules.
This has been done. But the signature of the Judge has not been added
to that of the Clerk. The law does not require it. The rule does not
require it.
In the case of Martin vs. Hunter's lessee,[3] an exception was taken to
the return of the refusal of the State Court to enter a prior judgment
of reversal by this Court, because it was not made by the Judge of the
State Court to which the writ was directed; but the exception was
overruled, and the return was held sufficient. In Buel vs. Van Ness,[4]
also a writ of error to a State Court, the record was authenticated in
the same manner. No exception was taken to it. These were civil cases.
But it has been truly said at the bar, that, in regard to this process,
the law makes no distinction between a criminal and civil case. The
same return is required in both. If the sanction of the Court could be
necessary for the establishment of this position, it has been silently
given.
[3] 1st Wh. 304, 361.
[4] 8th Wh. 312.
McCulloch vs. the State of Maryland,[5] was a _qui tam_ action, brought
to recover a penalty, and the record was authenticated by the seal of
the Court and the signature of the Clerk, without that of a Judge. Brown
et al. vs. the State of Maryland, was an indictment for a fine and
forfeiture. The record in this case, too, was authenticated by the seal
of the Court and the certificate of the Clerk. The practice is both
ways.
[5] 4th Wh. 316.
The record, then, according to the Judiciary act, and the rule and the
practice of the Court, is regularly before us. The more important
inquiry is, does it exhibit a case cognizable by this tribunal?
The indictment charges the plaintiff in error, and others, being white
persons, with the offence of "residing within the limits of the
Cherokee nation without a licence," and "without having taken the oath
to support and defend the constitution and laws of the State of
Georgia."
The defendant in the State Court appeared in proper person, and filed
the following plea:
"And the said Samuel A. Worcester, in his own proper person, comes and
says, that this court ought not to take further cognizance of the action
and prosecution aforesaid, because, he says, that, on the 15th day of
July, in the year 1831, he was, and still is, a resident in the Cherokee
nation; and that the said supposed crime or crimes, and each of them,
were committed, if committed at all, at the town of New Echota, in the
said Cherokee nation, out of the jurisdiction of this court, and not in
the county Gwinnett, or elsewhere within the jurisdiction of this court:
And this defendant saith, that he is a citizen of the State of Vermont,
one of the United States of America, and that he entered the aforesaid
Cherokee nation in the capacity of a duly authorized missionary of the
American Board of Commissioners for Foreign Missions, under the
authority of the President of the United States, and has not since been
required by him to leave it: that he was, at the time of his arrest,
engaged in preaching the Gospel to the Cherokee Indians, and in
translating the sacred Scriptures into their language, with the
permission and approval of the said Cherokee nation, and in accordance
with the humane policy of the Government of the United States for the
civilization and improvement of the Indians; and that his residence
there, for this purpose, is the residence charged in the aforesaid
indictment: and this defendant further saith, that this prosecution the
State of Georgia ought not to have or maintain, because, he saith, that
several treaties have, from time to time, been entered into between the
United States and the Cherokee nation of Indians, to wit: at Hopewell,
on the 28th day of November, 1785; at Holston, on the 2d day of July,
1791; at Philadelphia, on the 26th day of June, 1794: at Tellico, on the
2d day of October, 1798; at Tellico, on the 24th day of October, 1804;
at Tellico, on the 25th day of October, 1805; at Tellico, on the 27th
day of October, 1805; at Washington city, on the 7th day of January,
1805; at Washington city, on the 22d day of March, 1816; at the
Chickasaw Council House, on the 14th day of September, 1816; at the
Cherokee Agency, on the 8th day of July, 1817; and at Washington city,
on the 27th day of February, 1819: all which treaties have been duly
ratified by the Senate of the United States of America; and, by which
treaties, the United States of America acknowledge the said Cherokee
nation to be a sovereign nation, authorized to govern themselves, and
all persons who have settled within their territory, free from any right
of legislative interference by the several States composing the United
States of America, in reference to acts done within their own territory;
and, by which treaties, the whole of the territory now occupied by the
Cherokee nation, on the east of the Mississippi, has been solemnly
guarantied to them; all of which treaties are existing treaties at this
day, and in full force. By these treaties, and particularly by the
treaties of Hopewell and Holston, the aforesaid territory is
acknowledged to lie without the jurisdiction of the several States
composing the Union of the United States; and, it is thereby specially
stipulated, that the citizens of the United States shall not enter the
aforesaid territory, even on a visit, without a passport from the
governor of a State, or from some one duly authorized thereto, by the
President of the United States: all of which will more fully and at
large appear, by reference to the aforesaid treaties. And this defendant
saith, that the several acts charged in the bill of indictment, were
done, or omitted to be done, if at all, within the said territory so
recognized as belonging to the said nation, and so, as aforesaid, held
by them, under the guaranty of the United States: that, for those acts,
the defendant is not amenable to the laws of Georgia, nor to the
jurisdiction of the courts of the said State; and that the laws of the
State of Georgia, which profess to add the said territory to the several
adjacent counties of the said State, and to extend the laws of Georgia
over the said territory, and persons inhabiting the same; and, in
particular, the act on which this indictment _vs._ this defendant is
grounded, to wit: "An act entitled an act to prevent the exercise of
assumed and arbitrary power, by all persons, under pretext of authority
from the Cherokee Indians, and their laws, and to prevent white persons
from residing within that part of the chartered limits of Georgia,
occupied by the Cherokee Indians, and to provide a guard for the
protection of the gold mines, and to enforce the laws of the State
within the aforesaid territory," are repugnant to the aforesaid
treaties; which, according to the constitution of the United States,
compose a part of the supreme law of the land; and that these laws of
Georgia are, therefore, unconstitutional, void, and of no effect; that
the said laws of Georgia are also unconstitutional and void, because
they impair the obligation of the various contracts formed by and
between the aforesaid Cherokee nation and the said United States of
America, as above recited: also, that the said laws of Georgia are
unconstitutional and void, because they interfere with, and attempt to
regulate and control the intercourse with the said Cherokee nation,
which, by the said constitution, belongs exclusively to the Congress of
the United States; and because the said laws are repugnant to the
statute of the United States, passed on the ---- day of March, 1802,
entitled "An act to regulate trade and intercourse with the Indian
tribes, and to preserve peace on the frontiers:" and that, therefore,
this Court has no jurisdiction to cause this defendant to make further
or other answer to the said bill of indictment, or further to try and
punish this defendant for the said supposed offence or offences alleged
in the bill of indictment, or any of them: And, therefore, this
defendant prays judgment whether he shall be held bound to answer
further to said indictment."
This plea was overruled by the Court. And the prisoner, being
arraigned, pleaded not guilty. The jury found a verdict against him,
and the Court sentenced him to hard labor, in the penitentiary, for the
term of four years.
By overruling this plea, the Court decided that the matter it contained
was not a bar to the action. The plea, therefore, must be examined, for
the purpose of determining whether it makes a case which brings the
party within the provisions of the 25th section of the "Act to
establish the judicial courts of the United States."
The plea avers that the residence, charged in the indictment, was under
the authority of the President of the United States, and with the
permission and approval of the Cherokee nation. That the treaties,
subsisting between the United States and the Cherokees, acknowledge
their right as a sovereign nation to govern themselves and all persons
who have settled within their territory, free from any right of
legislative interference by the several States composing the United
States of America. That the act under which the prosecution was
instituted is repugnant to the said treaties, and is, therefore,
unconstitutional and void. That the said act is, also, unconstitutional;
because it interferes with, and attempts to regulate and control, the
intercourse with the Cherokee nation, which belongs, exclusively, to
Congress; and, because, also, it is repugnant to the statute of the
United States, entitled "An act to regulate trade and intercourse with
the Indian tribes, and to preserve peace on the frontiers."
Let the averments of this plea be compared with the 25th section of the
Judicial act.
That section enumerates the cases in which the final judgment or decree
of a State Court may be revised in the Supreme Court of the United
States. These are, "where is drawn in question the validity of a
treaty, or statute of, or an authority exercised under, the United
States, and the decision is against their validity; or where is drawn
in question the validity of a statute of, or an authority exercised
under, any State, on the ground of their being repugnant to the
constitution, treaties, or laws, of the United States, and the decision
is in favor of such their validity; or where is drawn in question the
construction of any clause of the constitution, or of a treaty, or
statute of, or commission held under, the United States, and the
decision is against the title, right, privilege, or exemption,
specially set up or claimed by either party, under such clause of the
said constitution, treaty, statute, or commission."
The indictment and plea, in this case, draw in question, we think, the
validity of the treaties made by the United States with the Cherokee
Indians: if not so, their construction is certainly drawn in question;
and the decision has been, if not against their validity, "against the
right, privilege, or exemption, specially set up and claimed under
them." They also draw into question the validity of a statute of the
State of Georgia, "on the ground of its being repugnant to the
constitution, treaties, and laws, of the United States, and the
decision is in favor of its validity."
It is, then, we think, too clear for controversy, that the act of
Congress, by which this court is constituted, has given it the power,
and, of course, imposed on it the duty, of exercising jurisdiction in
this case. This duty, however unpleasant, cannot be avoided. Those who
fill the Judicial Department have no discretion in selecting the
subjects to be brought before them. We must examine the defence set up
in this plea. We must inquire and decide whether the act of the
Legislature of Georgia, under which the plaintiff in error has been
prosecuted and condemned, be consistent with, or repugnant to, the
constitution, laws, and treaties, of the United States.
It has been said at the bar, that the acts of the Legislature of
Georgia seize on the whole Cherokee country, parcel it out among the
neighboring counties of the State, extend her code over the whole
country, abolish its institutions and its laws, and annihilate its
political existence.
If this be the general effect of the system, let us inquire into the
effect of the particular statute and section on which the indictment is
founded.
It enacts that "all white persons, residing within the limits of the
Cherokee nation on the first day of March next, or at any time
thereafter, without a licence or permit from his Excellency the
Governor, or from such agent as his Excellency the Governor shall
authorize to grant such permit or licence, and who shall not have taken
the oath hereinafter required, shall be guilty of a high misdemeanor,
and, upon conviction thereof, shall be punished by confinement to the
penitentiary, at hard labor, for a term not less than four years."
The 11th section authorizes the Governor, "should he deem it necessary
for the protection of the mines, or the enforcement of the laws in
force within the Cherokee Nation, to raise and organize a guard," &c.
The 13th section enacts, "that the said guard or any member of them,
shall be, and they are hereby, authorized and empowered to arrest any
person legally charged with or detected in a violation of the laws of
this State, and to convey, as soon as practicable, the person so
arrested, before a Justice of the peace, judge of the superior, justice
of inferior court of this State, to be dealt with according to law."
The extra-territorial power of every Legislature being limited in its
action, to its own citizens or subjects, the very passage of this act
is an assertion of jurisdiction over the Cherokee Nation, and of the
rights and powers consequent on jurisdiction.
The first step, then, in the inquiry, which the constitution and laws
impose on this Court, is an examination of the rightfulness of this
claim.
America, separated from Europe by a wide ocean, was inhabited by a
distinct People, divided into separate nations, independent of each
other and of the rest of the world, having institutions of their own,
and governing themselves by their own laws. It is difficult to
comprehend the proposition, that the inhabitants of either quarter of
the globe could have rightful original claims of dominion over the
inhabitants of the other, or over the lands they occupied; or that the
discovery of either by the other should give the discoverer, rights in
the country discovered, which annulled the pre-existing rights of its
ancient possessors.
After lying concealed for a series of ages, the enterprise of Europe,
guided by nautical science, conducted some of her adventurous sons into
this Western world. They found it in possession of a People who had
made small progress in agriculture or manufactures, and whose general
employment was war, hunting, and fishing.
Did these adventurers, by sailing along the coast, and occasionally
landing on it, acquire for the several Governments to whom they
belonged, or by whom they were commissioned, a rightful property in the
soil, from the Atlantic to the Pacific; or rightful dominion over the
numerous people who occupied it? Or has nature, or the great Creator of
all things, conferred these rights over hunters and fishermen, on
agriculturists and manufacturers?
But power, war, conquest, give rights, which, after possession, are
conceded by the world, and which can never be controverted by those on
whom they descend. We proceed, then, to the actual state of things,
having glanced at their origin; because holding it in our recollection
might shed some light on existing pretensions.
The great maritime Powers of Europe discovered and visited different
parts of this continent at nearly the same time. The object was too
immense for any one of them to grasp the whole; and the claimants were
too powerful to submit to the exclusive or unreasonable pretensions of
any single potentate. To avoid bloody conflicts, which might terminate
disastrously to all, it was necessary for the nations of Europe to
establish some principle which all would acknowledge, and which should
decide their respective rights as between themselves. This principle,
suggested by the actual state of things, was, "that discovery 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."[6]
[6] 8th Wh. 573.
This principle, acknowledged by all Europeans, because it was the
interest of all to acknowledge 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; not one which could annul the previous rights of those
who had not agreed to it. It regulated the right given by discovery
among the European discoverers; but could not affect the rights of
those already in possession, either as aboriginal occupants, or as
occupants by virtue of a discovery made before the memory of man. It
gave the exclusive right to purchase, but did not found that right on a
denial of the right of the possessor to sell.
The relation between the Europeans and the natives was determined in
each case by the particular government which asserted and could
maintain this pre-emptive privilege in the particular place. The United
States succeeded to all the claims of Great Britain, both territorial
and political, but no attempt, so far as is known, has been made to
enlarge them. So far as they existed merely in theory, or were in their
nature only exclusive of the claims of other European nations, they
still retain their original character, and remain dormant. So far as
they have been practically exerted, they exist in fact, are understood
by both parties, are asserted by the one, and admitted by the other.
Soon after Great Britain determined on planting colonies in America,
the King granted charters to companies of his subjects, who associated
for the purpose of carrying the views of the crown into effect, and of
enriching themselves. The first of these charters was made before
possession was taken of any part of the country. They purport generally
to convey the soil, from the Atlantic to the South Sea. This soil was
occupied by numerous and warlike nations, equally willing and able to
defend their possessions. The extravagant and absurd idea, that the
feeble settlements made on the sea coast, or the companies under whom
they were made, acquired legitimate power by them to govern the people,
or occupy the lands from sea to sea, did not enter the mind of any man.
They were well understood to convey the title which, according to the
common law of European sovereigns respecting America, they might
rightfully convey, and no more. This was the exclusive right of
purchasing such lands as the natives were willing to sell. The crown
could not be understood to grant what the crown did not affect to
claim, nor was it so understood.
The power of making war is conferred by these charters on the colonies,
but _defensive_ war alone seems to have been contemplated. In the first
charter to the first and second colonies, they are empowered, "for their
several _defences_, to encounter, expulse, repel, and resist, all
persons who shall, without license," attempt to inhabit "within the said
precincts and limits of the said several colonies, or that shall
enterprise or attempt at any time hereafter the least detriment or
annoyance of the said several colonies or plantations."
The charter to Connecticut concludes a general power to make defensive
war with these terms: "and upon _just causes_ to invade and destroy the
natives or other enemies of the said colony."
The same power, in the same words, is conferred on the government of
Rhode Island.
This power to repel invasion, and, upon just cause, to invade and
destroy the natives, authorizes offensive as well as defensive war, but
only "on just cause." The very terms imply the existence of a country
to be invaded, and of an enemy who has given just cause of war.
The charter to William Penn contains the following recital: "and
because, in so remote a country, near so many barbarous nations, the
incursions, as well of the savages themselves, as of other enemies,
pirates, and robbers, may probably be feared, therefore we have given,"
&c. The instrument then confers the power of war.
These barbarous nations, whose incursions were feared, and to repel
whose incursions the power to make war was given, were surely not
considered as the subjects of Penn, or occupying his lands during his
pleasure.
The same clause is introduced into the charter to Lord Baltimore.
The charter to Georgia professes to be granted for the charitable
purpose of enabling poor subjects to gain a comfortable subsistence by
cultivating lands in the American provinces, "at present waste and
desolate." It recites: "and whereas our provinces in North America have
been frequently ravaged by Indian enemies, more especially that of
South Carolina, which, in the late war by the neighboring savages, was
laid waste by fire and sword, and great numbers of the English
inhabitants miserably massacred; and our loving subjects, who now
inhabit there, by reason of the smallness of their numbers, will, in
case of any new war, be exposed to the like calamities, inasmuch as
their whole Southern frontier continueth unsettled, and lieth open to
the said savages."
These motives for planting the new colony are incompatible with the
lofty ideas of granting the soil and all its inhabitants from sea to
sea. They demonstrate the truth, that these grants asserted a title
against Europeans only, and were considered as blank paper so far as
the rights of the natives were concerned. The power of war is given
only for defence, not for conquest.
The charters contain passages showing one of their objects to be the
civilization of the Indians, and their conversion to Christianity--objects
to be accomplished by conciliatory conduct, and good example; not by extermination.
The actual state of things, and the practice of European nations, on so
much of the American continent as lies between the Mississippi and the
Atlantic, explain their claims and the charters they granted. Their
pretensions unavoidably interfered with each other: though the
discovery of one was admitted by all to exclude the claim of any other,
the extent of that discovery was the subject of unceasing contest.
Bloody conflicts arose between them, which gave importance and security
to the neighboring nations. Fierce and warlike in their character, they
might be formidable enemies, or effective friends. Instead of rousing
their resentments, by asserting claims to their lands, or to dominion
over their persons, their alliance was sought by flattering
professions, and purchased by rich presents. The English, the French,
and the Spaniards, were equally competitors for their friendship and
their aid. Not well acquainted with the exact meaning of words, nor
supposing it to be material whether they were called the subjects, or
the children of their father in Europe; lavish in professions of duty
and affection, in return for the rich presents they received; so long
as their actual independence was untouched, and their right to self
government acknowledged, they were willing to profess dependence on the
Power which furnished supplies of which they were in absolute need, and
restrained dangerous intruders from entering their country: and this
was probably the sense in which the term was understood by them.
Certain it is, that our history furnishes no example, from the first
settlement of our country, of any attempt, on the part of the crown, to
interfere with the internal affairs of the Indians, farther than to
keep out the agents of foreign Powers, who, as traders or otherwise,
might seduce them into foreign alliances. The King purchased their
lands when they were willing to sell, at a price they were willing to
take; but never coerced a surrender of them. He also purchased their
alliance and dependence by subsidies; but never intruded into the
interior of their affairs, or interfered with their self government, so
far as respected themselves only.
The general views of Great Britain, with regard to the Indians, were
detailed by Mr. Stuart, superintendent of Indian affairs, in a speech
delivered at Mobile, in presence of several persons of distinction,
soon after the peace of 1763. Towards the conclusion he says, "lastly,
I inform you that it is the King's order to all his Governors and
subjects to treat the Indians with justice and humanity, and to forbear
all encroachments on the territories allotted to them; accordingly, all
individuals are prohibited from purchasing any of your lands; but, as
you know that, as your white brethren cannot feed you when you visit
them, unless you give them ground to plant, it is expected that you
will cede lands to the King for that purpose. But, whenever you shall
be pleased to surrender any of your territories to his majesty, it must
be done, for the future, at a public meeting of your nation, when the
governors of the provinces, or the superintendent shall be present, and
obtain the consent of all your people. The boundaries of your hunting
grounds will be accurately fixed, and no settlement permitted to be
made upon them. As you may be assured that all treaties with you will
be faithfully kept, so it is expected that you, also, will be careful
strictly to observe them."
The proclamation issued by the King of Great Britain, in 1763, soon
after the ratification of the articles of peace, forbids the governors
of any of the colonies to grant warrants of survey, or pass patents
upon any lands whatever, which, not having been ceded to, or purchased
by, us, (the King) as aforesaid, are reserved to the said Indians, or
any of them.
The proclamation proceeds: "and we do farther declare it to be our
royal will and pleasure, for the present, as aforesaid, to reserve,
under our sovereignty, protection, and dominion, for the use of the
said Indians, all the lands and territories lying to the westward of
the sources of the rivers which fall into the sea, from the west and
northwest as aforesaid: and we do hereby strictly forbid, on pain of
our displeasure, all our loving subjects from making any purchases or
settlements whatever, or taking possession of any of the lands above
reserved, without our special leave and licence for that purpose first
obtained.
"And we do further strictly enjoin and require all persons whatever,
who have, either wilfully or inadvertently, seated themselves upon any
lands within the countries above described, or upon any other lands
which, not having been ceded to, or purchased by us, are still reserved
to the said Indians, as aforesaid, forthwith to remove themselves from
such settlements."
A proclamation, issued by Governor Gage, in 1779, contains the
following passage: "Whereas many persons, contrary to the positive
orders of the King, upon this subject, have undertaken to make
settlements beyond the boundaries fixed by the treaties made with the
Indian nations, which boundaries ought to serve as a barrier between
the whites and the said nations;" particularly on the Ouabache, the
proclamation orders such persons to quit those countries without delay.
Such was the policy of Great Britain towards the Indian nations
inhabiting the territory from which she excluded all other Europeans;
such her claims, and such her practical exposition of the charters she
had granted: she considered them as nations capable of maintaining the
relations of peace and war; of governing themselves, under her
protection; and she made treaties with them, the obligation of which
she acknowledged.
This was the settled state of things when the war of our Revolution
commenced. The influence of our enemy was established; her resources
enabled her to keep up that influence; and the colonists had much cause
for the apprehension that the Indian nations would, as the allies of
Great Britain, add their arms to hers. This, as was to be expected,
became an object of great solicitude to Congress, Far from advancing a
claim to their lands, or asserting any right of dominion over them,
Congress resolved "that the securing and preserving the friendship of
the Indian nations appears to be a subject of the utmost moment to
these colonies."
The early journals of Congress exhibit the most anxious desire to
conciliate the Indian nations. Three Indian departments were
established; and commissioners appointed in each, "to treat with the
Indians in their respective departments, in the name and on behalf of
the United Colonies, in order to preserve peace and friendship with the
said Indians, and to prevent their taking any part in the present
commotions."
The most strenuous exertions were made to procure those supplies on
which Indian friendships were supposed to depend, and everything which
might excite hostility was avoided.
The first treaty was made with the Delawares, in September, 1778.
The language of equality in which it is drawn, evinces the temper with
which the negotiation was undertaken, and the opinion which then
prevailed in the United States.
"1st. That all offences or acts of hostilities, by one or either of the
contracting parties against the other, be mutually forgiven, and buried
in the depth of oblivion, never more to be had in remembrance.
"2d. That a perpetual peace and friendship shall, from henceforth, take
place and subsist between the contracting parties aforesaid, through
all succeeding generations: and if either of the parties are engaged in
a just and necessary war, with any other nation or nations, that then
each shall assist the other, in due proportion to their abilities, till
their enemies are brought to reasonable terms of accommodation," &c.
3d. The third article stipulates, among other things, a free passage
for the American troops through the Delaware nation, and engages that
they shall be furnished with provisions and other necessaries at their
value.
"4th. For the better security of the peace and friendship now entered
into by the contracting parties against all infractions of the same by
the citizens of either party, to the prejudice of the other, neither
party shall proceed to the infliction of punishments on the citizens of
the other, otherwise than by securing the offender or offenders, by
imprisonment, or any other competent means, till a fair and impartial
trial can be had by judges or juries of both parties, as near as can be
to the laws, customs, and usages, of the contracting parties, and
natural justice," &c.
5th. The fifth article regulates the trade between the contracting
parties, in a manner entirely equal.
6th. The sixth article is entitled to peculiar attention, as it
contains a disclaimer of designs which were, at that time, ascribed to
the United States, by their enemies, and from the imputation of which
Congress was then peculiarly anxious to free the Government. It is in
these words: "Whereas the enemies of the United States have endeavored,
by every artifice in their power, to possess the Indians in general
with an opinion that it is the design of the States aforesaid to
extirpate the Indians, and take possession of their country: To obviate
such false suggestion the United States do engage to guaranty to the
aforesaid nation of Delawares, and their heirs, all their territorial
rights, in the fullest and most ample manner, as it hath been bounded
by former treaties, as long as the said Delaware nation shall abide by,
and hold fast, the chain of friendship now entered into."
The parties further agree, that other tribes, friendly to the interest
of the United States, may be invited to form a State, whereof the
Delaware nation shall be the heads, and have a representation in
Congress.
This treaty, in its language, and in its provisions, is formed, as near
as may be, on the model of treaties between the crowned heads of
Europe.
The sixth article shows how Congress then treated the injurious calumny
of cherishing designs unfriendly to the political and civil rights of
the Indians.
During the war of the Revolution, the Cherokees took part with the
British. Alter its termination, the United States, though desirous of
peace, did not feel its necessity so strongly as while the war
continued. Their political situation being changed, they might very
well think it advisable to assume a higher tone, and to impress on the
Cherokees the same respect for Congress which was before felt for the
King of Great Britain. This may account for the language of the treaty
of Hopewell. There is the more reason for supposing that the Cherokee
chiefs were not very critical judges of the language, from the fact
that every one makes his mark; no chief was capable of signing his
name. It is probable the treaty was interpreted to them.
The treaty is introduced with the declaration, that "The commissioners
plenipotentiary of the United States give peace to all the Cherokees,
and receive them into the favor and protection of the United States of
America, on the following conditions."