From the Spectator and Chronicle
THE TIME HAS COME.
JUDGE MARSHALL'S WRIT OF ERROR.
MR. EDITOR: As you will doubtless insert in your columns of this week the above named instrument, and the acts of the State of Georgia in relation to it-and as the ascertainment of them flies with the wind; I speak of them as known. The following paper, written some weeks since, is at your service, if you shall judge it at all in point of the present crisis.--As it shows, it was suddenly penned to meet an argument based on the 11th article of amendment of the Constitution of the United States, which attempted to show the impossibility of bringing the question of Indian rights before the Judiciary of the nation. In that discussion, the limits of which were very narrow, I was not aware of the existence of the extensive provisions of the Judiciary act, passed at the first organization of our government-upon the 25th article of which, and in connection with the specification of the 2d section of the 3d article of the Constitution, Judge Marshall doubtless based his writ of error.
Constitution.-Article III--Section 2.
1. The judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority, to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between tow or more states, between a state and citizens of another state, between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens, or subjects.
2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
3. The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
Judiciary Act.--Section 25.
And be it further enacted, That a final judgement or decree in any suit, in the highest court of law or equity of a state in which a decision in the suit could be had, 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, may be re-examined and reversed or affirmed in the Supreme Court of the United States, upon a writ of error, the citation being signed by the Chief Justice, or Judge, or Chancellor, of the Court, rendering or passing the judgement or decree complained of, or by a Justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of, had been rendered or passed in a Circuit Court, and the proceeding upon the reversal shall also be the same, except that the Supreme court, instead of remanding the case for a final decision as before provided, may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal, in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said Constitution, treaties, statutes, commissions, or authorities, in dispute.--Laws U.S. Vol. page 60.
The following is the paper to which I have alluded, and which I hereby submit to you, exactly in the form in which it was reduced one month ago.
On looking into a late paper, I discover another among the many arguments which are thrown out in these days on the Indian question. And in as much as it seems to savor a little of professional custom, and it being intimated to me as more than probable, that it has dropped down from a high place, I am disposed, having a little leisure, to pay it so much respect, as to offer a few, perhaps, unimportant, criticisms-not in a professional way, but in the plain way of common sense. Of all questions of great public interest, forced upon the responsible consideration and enactments of our high authorities, none perhaps have ever yet come, or are likely to come, before them demanding more imperiously what Mr. Jefferson has somewhere called 'a reference to original principles' ' w___ by construction I would denominate a reference to common sense-to common feeling- to certain indelible principles of natural justice ' of natural conscience, which the Creator has stamped upon our moral being--which were announced with such solemnity ' high purpose in the Declaration of Independence--which are recognized in various forms in the fundamental works of our civil and social fabric-and which, whatever authorities and refinements of law, so called, may be superinduced, will yet, in the serious hour of reflection, steal upon our hearts, challenge and secure our respect, unless, in spite of all argument, we are resolved upon our course.
I think it cannot for a moment be doubted, that the aborigines of this country stand in relations to our General Government and to the State Governments, in some respects and to a certain extent, anomalous. And so far as this be a fact--and so far as constitutional law, and superadded statutes and covenants do not speak of unequivocal language in application to those practical questions enforced upon us in our treatment of them--so far we are thrown back upon 'original principles'--upon the naked forms of wright and wrong, as delineated in morals by the disinterested voice of mankind--which voice is the recognized common law of honest political casuistry. Yes--so far we are thrown back upon those universally acknowledged principles of respect and kindness for human nature, to which, in all cases, we are obliged, wherever we meet with the forms of humanity, and in whatever adventitious relations man presents himself to us, without a written statute for our guide. And woe be to us, if we make a law for these occasions only to suit our own purposes, and to the abuse of a fellow being-to the infraction of the acknowledged rights of humanity.
But as it happens, the relations of the Indian to us are not altogether anomalous.-Though sparsely defined in constitutional law, they are yet unequivocally recognized in that code. And so far cannot be made a subject of doubt. But they are more minutely defined in the form of sundry covenants, which have been solemnized between them and us from the beginning and in all succeeding periods of our political and social contact. These instruments too will speak, and are now speaking, for themselves. And it is believed, that the conscience of this community has not yet arrived to that condition of obtuseness, as to be altogether insensible to the obligation of those covenants, or to subscribe to the doctrine, that they were mere political 'expedients.' So far, therefore, as constitutional recognition and mutual covenant go, the Indian has a shield of protection over him, which nothing but extreme violence can throw aside and expose him to injury. And over and above this, for the decision of all anomalous questions, there is the public conscience of the nation and of the world retaining, cherishing and swearing eternal fealty to the common law of respect (variously and largely recognized in form,) which men, in their social and political relations, owe to each other. And however, this law may be violated for a time, or to some extent, by the excesses of intemperate and infatuated party zeal and local interest, a d=redeeming power will still remain, decreed by the high Providence of heaven, as an inextinguishable attribute of the human breast, and so nobly asserted in various forms and throughout the civilized world by the friends of human right and advocates of the oppressed.
But, to the article under review. The writer pounces triumphantly upon us with the grand estoppel of all proceedings for the recovery of redress of Indian rights against Georgia, as cited in the 11th article of the amendment of the Constitution of the United States: The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens or subjects of any foreign state.'
Whether this be indeed a substantial and immoveable estoppel, in the case supposed, will admit of several forms of trial. The writer seems to allow only of two forms of trying this question-presenting this dilemma: If the Indian be a citizen he has no appeal from the law of the state; if not a citizen, he cannot, by this constitutional law, be heard in controversy.
Suppose the state of Georgia to assume, by her own enactments, the administration of the law of customs, or of the United States mail, or of any other national law, over her own citizens, either in the exact forms of the present regulations, or in forms somewhat diverse, and that she should proceed to try offenders to the exclusion and in defiance of the judicial prerogatives of the United States. Is there no way, by which the judiciary of the United States could assert its powers, in such a case? no way by which the citizen -offender could rightfully refuse his submission, and make his appeal? Again-- suppose any one state should assume jurisdiction over her own citizens in a case which had been generally supposed to belong to the jurisdiction of the United States and that from all time in which the relation could have existed;-that said state had, till this particular juncture forever yielded a tacit acknowledgment of such jurisdiction-that the General Government and these citizens had been governed in their intercourse by this supposition; - and that all necessary regulations had been enacted, though not very minutely defined. Would such an assumption, being made without mutual advisement and negotiation be deemed courteous?--And in case of a dissent by either, or both the parties, alleging an aggression upon her rights, could the state reasonably refuse a hearing before any but her own Courts? Is there no power in the General Government to enforce a participation in the trial of such a question? 'The judicial power of the United States shall extend--to controversies to which the United States shall be a party.'--Article III Section 2. The offer, or claim, or obligation, to be a party, doubtless comes within this rule.
The only provisions (which are numerous) of the 3d article of the Constitution of the United States, affected by the 11th article of amendment, are--that citizens of another (sister) state, or of a foreign state, shall not originate a prosecution against any one of the United States--('commenced, or prosecuted,') shall not be plaintiff. But the appellate jurisdiction of the Court of the United States remains the same for all cases specified in the 3d article of the Constitution--except those 'affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.' In these instances 'the Supreme Court shall have original jurisdiction.' The only possible estoppel, therefore, in the way of the Indian versus Georgia, based upon the Constitution of the United States, must be a constructive one, cutting him off on the ground of his being a prosecutor. But although the jurisdiction of the court of the United States, in such case, is declared to be original, the Indian is virtually and to all intents and purposes an appellate. He does not prosecute--put appeals from a violent assumption of power to the only authority constituted and alone invested with prerogatives for his protection. The grounds for investing the Supreme Court with original jurisdiction in these instances do not annihilate appellate authority, but supposing it unnecessary, they are intended to create a more direct and immediate access.--They invest the Court with higher powers not destroying, but involving the less, if occasion demand them. And the present- supposed case--not anticipated--does demand them. In relation to the Indian, the jurisdiction of the Court is appellate--in relation to the state, it is original. The former is true not a simple matter of fact--the latter, I suppose, as a doctoring of law. The state, in this case, assumes an unconstitutional jurisdiction and consequently its Court, quo ad hoc, is not a Court. Hence, and in relation to the state, the original jurisdiction of the United States judiciary in the case. And the Indian cannot be estopped because he is an appellant.
But-there is a wider door and a broader basis in the first clause of the 2d section of the 3d article:- 'The judicial power (of the United States) shall extend to all cases in law and equity, arising under the Constitution, the laws of the United States, and treaties made, or which shall be made under their authority.' Here again the jurisdiction of the United States Court, in relation to the state, is original-or the highest possible, most direct, and immediate, and the prerogatives of the Indian as an individual, or of Indians as a community, are those of an appellant.
Again: The relations of Indians to our Government are in some respects anomalous. And the anomalies of their condition do not detract from their privileges and claims of protection, but multiply them. Not only are they under the protection of the Constitution itself by express and open recognition of statutes built upon it, and of treaties solemnized under it--then which nothing can be more sacred in honor, or more binding in law--but they are covenanted and acknowledged proteges of the nation as an unity, and of every several state as an integral part.
Prophecy! Yes-in the most delicate; tender, and affecting sense. And as Jehovah said of his own peculiar people in the tender language of prophecy, so ought this nation to say to these:'he that toucheth them, toucheth the apple of my eye.' Dependent, weak, and defenseless, but as we defend them--and made thus weak, that we might be strong--their very helplessness, in their peculiar and to us most sacred and responsible relations, makes its soul-touching and soul-subduing appeals to our honor ' our sympathies, and to our conscience. And will we permit their feelings to be outraged, their rights few and small to be trampled on, and themselves driven by the moral and resistless force of legislation under an agonizing sense of a cruel compulsion--yes driven from the graves of their fathers to the fearful experiment of Utopian empire, themselves foreboding, as every wise man must instinctively predict, a sad and melancholy waste of their being.
But the Cherokees are 'savages'. Unkind-cruel name! And shall insult be added to injury? And what is far, deeply more base, shall that insult be grasped as the instrument, employed in the holy office of sanctifying injury?