Cherokee Phoenix


Published March, 31, 1832

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From the New York Observer.

The following is from our correspondent:

WASHINGTON, March 5, 1832

No communication that I have yet made to you has borne such intelligence as the present--that of the decision of the Supreme Court of the United States in favor of Samuel A. Worcester and his companion in bonds and tribulation, and in the kingdom and patience of Jesus Christ; banished not like the beloved John by a Nero to the free air of a Patmos, but as condemned felons to a narrow prison house by a Georgia Judge. Oh their 'tender mercies.' But God will 'vindicate the just.' Judge Marshall delivered the opinion of the Court on Saturday. It is clear and decisive. It comes up to the whole breath of the idea of the sainted Evarts, as expressed in the advice he gave to the missionaries as he drew near to his rest. It may be considered a complete fulfillment of his prediction. The Chief Justice, distinguished as well for the most deliberate coolness of judgment, as for his great reasoning powers, spoke of the punishment of these men as a disgraceful one, 'if' said he, 'it can be a disgrace to inflict punishment on innocent men.' An interested crowd intended to hear the judgment.

It would seem that the court has seized the first constitutional opportunity to give its opinion in the case. The reason, it appears, why the suit was not entertained last spring, is that the relation of the Indians to our government is such that they cannot be a party in any case before this tribunal. But Mr. Worcester, as a citizen of the State of Vermont, with all the privileges appertaining to such citizenship, could constitutionally appeal from the judgment of an interior tribunal of a state to the great tribunal here. The whole question between Georgia and the United States was thus drawn into the argument, and is now settled by this court! Upon the validity of the law by which he was condemned they pronounced and the whole proceedings of the Georgia court are declared null and void.

After the opinions were pronounced, Judge Marshall turned to his associates and asked them, 'shall a mandate be sent for the release of the appellants?' The Judges present (Judge Johnson was absent) with the exception of Judge Baldwin who dissented for want of jurisdiction, nodded assent, when the clerk was directed to prepare the message of mercy--shall I add and justice too, for the imprisoned missionaries. I understand that it is committed to the care of Mr. Chester, a Georgian, one of their counsel, who has taken his departure for the South.

An abstract of the opinion of the Court as delivered by the Chief Justice, you will see in the Intelligencer. Below is a concise sketch of the separate opinion delivered by Judge McLean.* This momentous result has produced a great sensation in the city, and in the Capitol. I hear today that there was much excitement in the House of Representatives upon some proposition arising out of the decision. It has also been said that Georgia will resist. The most contradictory reports prevail as to the course the President has said he will take. This I can vouch for-a member of the bench has said the President is not committed. There will probably be little opposition to the release of the missionaries in the immediate vicinity of their abode, as I am informed considerable sympathy exists there as well as a sense of justice it being admitted that the punishment inflicted is widely proportioned to the acts with which they are charged.

Doubtless 'prayer without ceasing has been made of the church,' for the suffering brethren. May the angel of mercy now visit them and break their chains. The principles involved--the crisis impending in consequence of the event of Saturday are vast and vital. The strength of the Union is again to be tried.

The following is the abstract of the opinion in the Intelligencer alluded to by our correspondent.

On Saturday last, Mr. Chief Justice Marshall, delivered the opinion of the court in this case, reversing the judgment of the Superior Court of Gwinnett County, in Georgia. The effect of this decision is, that the recent acts of Georgia taking possession of the Cherokee country, and providing for the punishment of persons therein residing without the license of the Governor, and without taking an oath of allegiance to the state, are declared null and void, as contrary to the Constitution, Treaties and Laws of the United States.

The opinion of the Chief Justice was very elaborate and clear. He took a review of the origin of the European title to lands in America, upon the ground of discovery. He established that this right was merely conventional among the European Governments themselves, and for their own guidance, and the regulation of their own claims in regard to each other, and in no respect changed nor affected to change the rights of the Indians as occupants of the soil. That the only effect of the European title was, as between European nations, to recognize an exclusive right of trade and intercourse with the Indians, and of ultimate domain in the territories occupied by the Indians in favor of the nation or government whose subjects were the first discoverers. That is all the European governments, Spain, France, and especially Great Britain, had uniformly recognized the Indian tribes and nations as distinct communities capable of and entitled to self- government as states and in no respect, except as to their right of intercourse with other European nations, and the right of pre-emption in the discoverers to purchase the soil, as under the control or power of the Europeans. They were treated as nations capable of holding and ceding their territories, capable of making treaties and compacts, and entitled to all the powers of peace and war, and not as conquered or enslaved communities. He demonstrated this from various historical facts, and showed that when upon the Revolution the United colonies succeeded to the rights and claims of the mother country, the American Congress uniformly adopted and adhered to the same doctrine, both before and after the confederation; that since the adoption of the Constitution the same doctrine had as uniformly prevailed in all the departments of the government; and that the treaties with the Indians were held to be treaties, and obligatory in the same sense as treaties between European sovereigns.- He showed also that this had been the established course of things recognized by Georgia herself, from the adoption of the Constitution down to the year 1829, as evidenced by her solemn acts, compacts, and laws. He then showed that by the Constitution, the exclusive power belonged to the United States to regulate intercourse with the Indians, and to receive cessions of their lands; and to make treaties with them. That their independence of the State Governments had constantly been upheld; that the right of possession to their land 'as solemnly guaranteed by the United States and by treaties with them, until that title should, with their own consent, be extinguished, and that the laws passed by Congress had regulated the trade and intercourse with them accordingly. He now reviewed the laws of Georgia in question, and pronounced them to be repugnant to the Constitution, Treaties and Laws of the United States. And he concluded by maintaining that the party defendant in the present indictment was entitled to the protection of the Constitution, Treaties and L{aws of the United States; and that Georgia had no authority to extend her laws over the Cherokee country, or to punish the defendant for disobedience to those laws in the Cherokee country.

Mr. Justice McLean delivered a separate opinion concurring in al things in the opinion of the court.- Mr. Justice Baldwin dissented.