Cherokee Phoenix


Published November, 18, 1832

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There is an act of Gen. Jackson's administration which so strongly appeals to the sympathies of every good man, as his cruelty towards the Georgia Missionaries. The melancholy tale has been oft told, and yet there are advocates among a Christian people. Three missionaries under a license from the President, entered the Indian territory, for the purpose of preaching to them the 'glad tidings of great joy.' They were violently seized upon and incarcerated in a loathsome prison. The President is appealed to. He refuses them protection, and hauntingly refers them to the courts of law.- The courts decide that the imprisonment is illegal. He refuses to carry this decision into execution, and says that he is independent of the judiciary; and that every public officer must construe the law and the Constitution for himself. And what are the consequences? The ministers of peace on the earth are held in dura_ce vile, among murderers and thieves, and felons of every description. They are compelled to labor as felons; to eat the food of felons; to wear the prison livery of felons; and, worse than all, to have as their daily companions and associates, none but felons.- National Republican Advocate.



Ten gentlemen from Bellefonte, Pa. solicited the opinion of Wm. W. Potter, Esq, on the following inquiries:

1st. Has the President of the United States any power, under the Constitution of the Union, to reprieve or pardon the missionaries, confined in the penitentiary of Georgia, in pursuance of the sentences of the court of that state.?

2d. In the preceding and present stage of the case of the missionaries, has the President any power, under the Constitution and laws, to coerce obedience to the decree of the Supreme Court, by calling out a military force, or in any other mode? The following is a REPLY copied from the Centre Democrat.

BELLEFONTE, Sept. 18, 1832

Gentlemen:- Your note of the 15th inst, has been received. In respect of the first inquiry, whether the President of the U. States power under the Constitution and laws to reprieve or pardon missionaries, confined in the penitentiary of Georgia, in pursuance of a sentence of the Criminal court of that state, after trial and conviction for a violation of the laws of Georgia, the only answer that can be give it, that the laws and constitution clothe the President with no such power. As well might the Governor of Pennsylvania claim the right to pardon the missionaries, as the President of the United States. The offence or crime alleged against Messrs. Butler and Worcester was created by the municipal regulations of Georgia. Their trail and conviction was had before a state tribunal. In all such cases, the power to pardon is confined by the Constitution of Georgia, to the Governor of that state. The 2d section of the 2d article of the Constitution of the United States, gives the President power 'to grant reprieves and pardons to offenses against the United States, except in cases of impeachment.' This section contains the sole power created in the President, on the subject or pardons or reprieves ' confines his power specially to offenses against the United States. As the missionaries committed no offence against the United States, and were not convicted, a pardon by the President would be a void and nugatory act, unconstitutional and unauthorized.

A brief history of the proceedings so as they have progressed, in the missionaries, is necessary to elucidate the answer of your inquiry relating to the power of the President to call out a military force to carry into effect the decision of the Supreme Court. Messrs Butler and Worcester were arrested, tried, and convicted in the Superior Court of the county of Gwinnet, in the State of Georgia, for a violation of a statute of that state, and sentenced to imprisonment for two years in the penitentiary. They appealed from the judgment of the State Court to the Supreme Court of the United States; which Court, on the 5th of March, 1832 reversed the judgment of the Superior Court of Gwinnet County, and ordered that judgment be awarded, that the special plea in the case of the defendants is good, and that the indictment, and all proceedings there on, do for surcease, and the defendants be discharged therefrom and go thereof quit without delay; and that a special mandate do go from this Court, to the Said Superior Court to carry this judgment into execution. The record, accompanied by the decree, was forewarded to the Court in Georgia, and when produced, obedience to its mandate was refused by the judge of the Criminal Court of that state. Thus, the case at present stands, and will probably remain, until the session of the Supreme Court, in January next, when I suppose, application will be made to the Court, to execute its own judgment in favor of the missionaries, under the laws, which provide 'that in cases where the State Courts do not execute the judgment of the Supreme Court, that Court may issue its own process should it be resisted, it will be the duty of the Marshal of the United States, for the district of Georgia to summon a posse comitatus to aid in enforcing the judgment. If this civil power should prove unavailing, from resistance by a combination too powerful to be overcome, then and not until then, on the requisition of the law being complied with the President has power to place the army ' militia of the United States at the service of the civil authority. In the present stage of proceedings in the case, the President has no power by the Constitution and laws to interfere. As the agent and officer of the people he is limited by the authority vested in him by the Constitution, and dare not transcend the power intrusted to his care. He is as amenable to the people for a violation of constitutional injunctions or a disregard of legal restraint, as the lowest executive officer known to the laws. Illegal and outrageous as has been the conduct of the Court of Georgia and her legislature; wicked and flagitious as has been the continued imprisonment of the missionaries, after the decision of the Supreme Court, yet it would afford no apology for a premature and unconstitutional interference of the Chief Executive. The power of the President to act in enforcing the laws, is very limited, and can only be reported to, when all other civil means have proved inefficient. The 3d section of the 2d article of the Constitution of the United States, directs 'that the President shall take care that the laws be faithfully executed.' By ch. 14 15 of the 8th section of the 1st article, power is given to Congress to provide for the calling forth of the militia to execute the laws of the Union, suppress insurrections, and repel invasions.' In pursuance of this authority, Congress by the act of the 28th of February, 1795 provided for calling forth the militia; ' by the act of the 3d March 1807 authorized the President to employ 'such parts of the land and naval forces of the United States, as shall be judged necessary to execute the laws of the Union, suppress insurrections, and repel invasions.' As a prerequisite to the constitutional exercise of the power of the President, to resort to military force, 'to cause the laws to be faithfully executed;' these acts require 'that either the chief justice or associate justice for the Supreme Court, or the judge of the district, shall certify that the laws of the United States were opposed, or their execution obstructed, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the power vested in the marshals. It is evident, that before the President, as an executive officer can act, proof attesting the resistance and obstruction in the execution of the laws, by combinations too powerful to be overcome by the civil officers of the law, must be submitted to the executive and laid before the judge, on which the certificate to the President is predicated. After the certificate is given, it is required, that the President issue a proclamation, calling upon the insurgents to disperse, and cease their resistance to the laws before he can resort to coercion by military power. It was the desire of the statesmen who framed the Constitution and enacted the laws, as it must be the wish of every friend of civil liberty, to avoid a resort to military coercion, if obedience to the laws could be produced by any other means. It is only to be used when a lawless section of the Union have forcibly set at defiance the laws, a declared by the highest judicial tribunal, or as expressed by the constitutional authorities of the nation, and then to be proceeded in as the dernier resort, with the utmost care and deliberation; so as to prevent, if possible a civil war, which would drench any part of our happy country with the blood of American citizens. As the final act of the Supreme Court has not been taken in the cause; as there has been no evidence of a resistance to the execution of the decree of the Court, by a combination too powerful to be suppressed by the ordinary course of judicial proceedings, as not one single prerequisite necessary by the constitution and laws to enable the President to employ a military force 'to cause the laws to be faithfully executed,' has occurred, the case contemplated by the Constitution, and acts of Congress for the interposition of the President, has CLEARLY NOT HAPPENED, and for him to have acted heretofore or at the present period, would have been a violation of the Constitution and laws, for which he ought to be impeached and punished. When the antecedent constitutional steps are taken if resistance should be preserved by the people of Georgia, the President should be bound by the most high and solemn obligations to employ that force under the provisions of the act of Congress, which the Constitution has placed at his disposal, to suppress a criminal opposition of the due execution of the laws. He will be constrained by the awful responsibility of his official oath-by his high reputation for patriotism, and by the very existence of the Government, to enforce at all hazards, the judgment of the Court. It is to be presumed that the President will not disregard the dictates of official duty. His devotion to liberty, his sacrifices and services to our country, from youth to old age, are pledges of his fidelity to the Union. So far, the President has had nothing in his power; certainly the abuse lavished upon him for the continued imprisonment of the missionaries is entirely gratuitous and undeserved.

Your fellow citizen,