Cherokee Phoenix


Published May, 5, 1832

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We have noticed the comments in different quarters upon our views of the Cherokee case, in reference to the decision of the Supreme Court of the United States upon it, and the refusal of the Circuit Court of the State of Georgia, to obey the mandate of the Court against carrying into effect its judgment.

In the course of our remarks on this subject, we said, 'It is possible, that application might be made to one of the Judges of the United States, out of Court, for a habeas corpus, to bring the case immediately before him.' On this point we spoke doubtingly, it will be seen, not having the Statute book before us. We thought it possible only that a writ of habeas corpus might be sued out. We are indebted to an Eastern paper for calling our attention to this point, so as to enable us to correct our views of the matter, wherein it was erroneous.

Upon further examination, we are now enabled to say, it is doubtless true that the power of the Supreme Court of the United States to issue writs of habeas corpus is limited to the cases in which the party is imprisoned, under some authority proceeding from some Court, or Officer of the United States. Therefore, it would seem that if the authorities of Georgia persist in retaining the Missionaries in prison, they cannot be relieved in the recess of Court, by habeas corpus. But the remedy is adequate, and it is indeed no slower than by that writ. For a habeas corpus, unless it might be such as a single Judge might grant, could not issue until the next term; and when the next term shall come, if the Missionaries be still in gaol, the Supreme Court may issue process, ' execute its own judgment. The venerable Judiciary Act of 1789, provides that in cases in which the judgment of a State Court is reversed, and where the case has been already before remanded, the Supreme Court may proceed to a final decision and award execution.

In the mean time, it would seem to be quite evident, that all the agents of Georgia, who are concerned in retaining the Missionaries in gaol, are trespassers, and must, one day, answer for the false imprisonment.

This is not the first instance, by several, of a State Court taking upon itself to disregard the judgment of the highest Judicial tribunal of our country. Every case of the kind has hitherto had a lame and almost ludicrous conclusion; and we have too much confidence in the love of country, and the common sense of the Georgians, to apprehend that the present collision between the Judicial authorities of that State, ' the United States, will terminate tragically. Let all the parties keep their temper as well as they can; let the friends of the Union stand firm by the sheet anchor, and let no one of them doubt the safety of the gallant ship.

Whose flag has braved these many years

The battle and the breeze.

National Intelligencer.