Newspaper Page Text
IT. S. SUPREME COURT.
«AI# « T Xl03f.
THE CHEttOKEE CASE.
Samuel A. Worcester,
w.
The Slate of Georgi
»r, i Writ of EiTor to the Su-
v perior Court of the State
ia. J of Georgia for toe county
of Gwinnett*
OPINION OF MR. JUSTICE BALDWIN.
The Writ of Error in this cast was issued by this
Court, uhder its seal, signed by the Clerk and al-
* lowed by one ot the Judges; no return is made by
t ie Court or Judge tc whom it is directed; but a
Paper, purporting to be a Transcript ot the Record
and proceedings, in the case referred to in the
W rit, certified by the Clerk of the Court under its
s sai, without any other attestation, is returned with
the Writ, and forms the only subject ol our con
sideration. The first question it presents, is,
whether the Record of the State Court is proper
ly before us; in other words, whether we have judi
cial knowledge, that the acts, doings and procee
dings recited in this paper, are the solemn judg
ment of a State Court, so known and certified to us,
t iat we are authorized to take cognizane ol it un-
tier the 25th section of the judiciary act, and affirm
jreme over the free, sovereign and indep« udent |
Slates, which de dared and achieved th* i : indepen-
or any one ou
ror never adjuidi
deuce,and formed this Union.'' Did the sovereign- ‘ by a Clerk of lie Court to whom it waA directed,
ty of the crown disappear,, and was that of the or on atranserpt authenticated by him alone;
Sachem and warrior enacted by the revolution? j The Clerk has ae custody bnt not the controi over
There was no Indian sovereignty when the power the records oft e Court: he dare not remove them,
' he Judges thereof; a .'poult of Ur-1 and the advocates for the supremacy of itaaupreme yx and do not give d®
- ated on a recc ru retutged to them ‘ * "
of me King prevailed. Did it first arise during j and he-cannot
any
authenticate a transcript. High
Or, is it j legal itjfaliu :lity, by directing a writ of error to a
u or all j-GtM.it j»i feiiijpWlit presiots without an aitowance
power ana more limited jurisdiction
arch whose supremacy they renounced and whose]as the House ofLords
armies they subdued and led captive; G 1
pretended that undeffthis Constitution, any
of the departments of this Government ha
*o form or erect a new State within the
tion of an old one; a component member
league of the revolution and this Union?
If I have mind to comprehend the question on
judgments; delicate
re m questioning me King’s
in this country,) they do net recognize the seal of
the King’s own "Court, or the attestation of its
Cierk, as proving the correctness ofthe transcript
^ ol his proceeding# therein on a writ of error, di-
lias no standing in court 11 these considerations recting the Judgelo return the record. The Chief
which our decision must depend they are these or
one of them; for both lieing negatived, the plaintiff'
law, as expounded by this high tribunal, under ita «
awful responsibility, as a principle which I am. poo
bound to presume, has never received the delihe* - >®fi a 1
ate sanctiou of this Court: still more strongly so, and do
that it never intended to embody and promulgate, and a
such a principle, in the rule of 1797. In my bum- ‘ judgme
ble judgment, it admits of no such construction. I all respec
cannot inspect it here judicially, when there ia no - part m tne
appearance which can cure irregularity, waive er- : Roh. Wo’W
ror, or by express or implied consent, authorize we denng luugme
to solemnly consider here; a paper which J should which dprodou <
an allowance i be bound to reject elsewhere, directing a trial or > tended lor, wuiesta
‘ giv ing judgment ou a plea. When parties appear, Indian sovereignty w*»
and, tiv consent, state a case, or consider a record > lative power, orn (
as before this Court, without enquiring into the
a warn!
ride of ev<
ssr
plied with i
set aaidei
Thirrulei
ug caseV
ilieni8'
iinst ti.e
tbt
wit
bore •
on
cot
on i
have not presented an antagonist, worthy, of an in
tellcctual contest, and the succeeding clause ofthe
same section and article ofthe Constitution does not
throw one across the path of the counsel, and with
in the consideration of the Court, it becomes im
possible to conceive how or by what rule or law,
our judgment can be rendered fur the plaintiff!
“Tlie Congress shall have power to dispose of
or reverse it, as to astray seem right.
There is, in rnyopimdti, no power conferred
t*-'s Court, which oughtto be exercised with more j congress «»,. «*ve puwer ju uu,,^ «.
Jtion thau itat wlLh •ultorbw it to revise the ? n<1 »»>» *.» <*«"«> ™ ,C8 «“> ^uhnam respect-
J -Sba ..( State Courts: route especially .of those ■"». h ' '" r ' mr - v ’ or “ th ?I property Wtropng tothe
u admimstratinn of i United States; and nothing in this Constitntipn
which have been rendered in the administration of | , ,, ' . , , . r
,1, criminal jurisprudence. We cannot do* our •». comlrued a, to prejudice snj
eyds to the tact, that tlie power is denied by many,
and viewed with extreme jealousy and watchlul-
claims of
the United States, or of any particular State”
This clause ofthe Constitution presents another
lieu., let it be exercise^piOi whatever caution and serious question: Is it to be now so construed as
str,e conformity to tl« Constitution and Laws toannth.late Uie leg,s at.ve nghts ot Geor g .a,w.rinn
J the Cherokee occupation ? or ihaTtm^power ol re
gulation thus conferred on Congress, and expressly
prohibiting its prejudice to the claims of any State,
thus expressly recognized, and exempted from the
plenary power delegated to Congress, shall he now
so considered, to authorize a recognition of Indian
claims of sovereignty, paramount to those ofGeor-
wars
gia? or that Congress, bv the power thus restrained,
mtnwted" , hv'u.e , 'cina'tirotionVnd «*». b ? 1 La " r8 or Treaties, ^Ibrm, erect, or so.const;-
tutinnally recognize its existence as to make their
obligation a part ofthe supreme law of the land &
a guide to the judgment of this Court ? Such are
the grave matters brought under our consideration
in this case by an ex-parte argument, wherein we
are called on to art by powerful appeals to the head
and the heart, without a voice heard in opposition.
These questions necessarily arise and must be dis
posed of before we can declare the laws of Gcor-
irnnty-
which c infer it, and in a case however plainly with
in their provision. “ No tribunal can^ approach
such a question, without a deep sense of its impor
tance, and of the awful responsibility involved in
its decision.”—4\Vh.400, McCulloch vs. Mary-
and. In another case, this Court say:—“In the
argument, we have been admonished ol the jealous
with which the States of this Union view the re
vising power
Laws of the United States, to this tribunal. ^ To
observations of this character, the answer uniform
ly given has been, that the course .of the judicial
department is marked out by law. We must tread
the direct and narrow path prescribed for us.”—5
Pel. 259, Fisher vs. Cockerill.
This is an unvaried rule when parties and their
counsel appear before us, ami contest the merits of
the case. * Though their appearance cures all de
fects in the process ofthe Court by which they are
commanded to appear before it, and the contesta
tion of the merits is a submission, not only to its
jurisdiction to hear and determine the matters in
controversy, hut an admission that the subject-mat
ter of contest is legally under the judicial inspection
of the judicial eye. Our path is but straight and
narrow, on a mere question ol right lietween man
and man. But the judicial power ot this nation is
now invoked to its highest and most solemn exer
cise., in the administration of the supreme Laws ot
the land—called on to brim* within Us powerful arm
tlie penal law of a State of this Union, without and
againstns consent, and to annul it by a judgment,
declaring its jurisdiction to be limited by the lineol
Indian occupation, and its legislative power not to
exist within it, and its exe.cisean usurpation for
bidden and void, by the Constitution and. Laws of
the United Slates. The path is narrow indeed
wherein this Court must iread. Georgia Has ail
the inherent power which can exist in any State of
this Union, and neither she or her people have del
egated more to this Government than every oilier
has lone. Georgia has more power within her lim
its than anv other State. By the compact with ihe
United States, she ceded to them all her Territory,
Wist of her present boundary,—and the Uuited
States ee led to Georgia, whatever claim, ughr, or
title, they then had, to the jurisdiction or soil, of
auy ’land's to tiie East of it and South of otber
States.—1, Laws 490.
Tile-jurisdiction and power, thus ceded by tbc
United States to Georgia, invested her with all
wine l could belong to either Government, within
her boundaries as designated by tlie solemn act of
mutual cession. Georgia then had the jiowerto
piss the law in question, unless it is repugnant to
some supreme law; or unless there exists within
these comoact boundaries, some third power or
sovereig ity paramount over the qther two combin
ed. Tlie existence and supremacy ol such third
po wer, is the question or, which this great contrfi-
versy depends. The plaintiff in error claims under
its wings, protection and exemption from the legis
lative p\wer, and denies the jurisdiction of Geor
gia over the p'ace where’ the alleged offence was
committed. He does not ask the interposition of
this Court, under the provision of the second sec
tion of the fourth Article of the Constitution, nor
have his Counsel deemed its bearing on his con
stitutional rights wormy of even an effort at argu-
in.:n. Neither he or they have referred us to any
mix _*r article or clause ofthe Supreme Law—to any
act of Congress or ofthe Government, which ex-
e, ; i .. •: him" 3 from the jurisdiction of the State, or
protects him from the law in question, within it, by
aav personal right guaranteed to him bv either.
H;“ : case is rested solely on the Treaties net.ween
the United States and Cherokee?, the Laws of Con
gress with reference to them, and the intercourse
of common plea
Lut. 850, 3
to a writ of err<
Lut. 866. This
the transcript; tl4 name ot the Clerk never ap
in a common law record, and in a Court of com
mon law inspecting the record of an interior Court,
the last thing thought of would !>e the attestation
ol a Clerk to the schedule identified bv and accom
panied bj, tiie return ofthe Chief Justice of the
Court to whom it is directed. When the Chief
Justice of a Court makes a return to a writ of er
ror, the schedule annexed is taken (or the record or
transcript; all which it contains is before the Court
of Error; so are ail the precedents; the whole re
cord is verity. The authentication of a record by
the attestation of a Cierk is unknown to the Com
mon Law, and is not recognized by the Judiciary
Act or any lato of Congress. The mode of authen
tication, s6 as to make them evidence on trials or
to the Court, is not a matter of mere practice; it is
a question of evidence, to be settled by the princi
ples of law, which transcends the rules of Court.
An exemplification of a patent recorded in the of
fice ofthe Secretary of State of Georgia, under tlie
seal ofthe State, was held by this Court to be as
gia void. As this can only lie done on process j high evidence as the original, though there was a
strictly according to law, and bv our judicial super- rule of the Circuit Court, that no exemplification
Justice carries tip original roll, and the tmnscru.-
to tiie House of lords; they are compared, and if
correct, hf leaves the transcript and takes
found
back the original.—4 Coke, 2f. D. Com. D. 293.
301. 2. Par. L. 2. ^ Ihe form of ?lie return lie
makes to the writ of error may be seen in Sho. Par.
Cas. 127. Rex. vb. Wolcott, a criminal case ou writ
of error from th^IIouse oi Lords, so of the Court
on a writ of error from K. B.
lacl. Coin. pp. 395. So of the K. B.
from the exchequer Chamber,
eturn authenticates the record or
vision of the record of a State Court , I must be
convinced beyond doubt, that this most solemn su-
tjervision ofState jurisdiction and legislation, has
been begun clearly within, snd on that direct and
narrow path prescribed for us by Uie laws which
confer the power.
What then is the course prescribed by law, and
by what law ? That j lower is tremendous, which
sets at nought the penal lawB of a State of this
Union. It must be clearly given; its execution
may require more than the power of this Court.
It ought to be exercised in a manner strictly accor
ding to the authority conferred, and »> to appear,
‘‘for when conferred, the Court will never, we
trust, shrink from its exercise,” 5 P.259. In cor
recting the errors of inferior Courts, in confining
them within the supreme law of the land as ex
pounded by this tribunal, in annulling or affirming
their pract ice and their judgements, a Court of the
last resort should be eagle eyed to see that their
own proceedings should conform to the direct and
narrow path, which it coerces other# to follow.—
They commence by a writ of error, which ie de
fined to be “a commission, by which the judge# of
one Court are authorized lo examine a record up
on which a judgment was given in another Court,
aud on such examination, to affirm or reverse the
same according to law. 6 Wh.409, Cohen vs.
should be received until the original patent was
proved to have been lost or destroyed*or the non-
production thereof is legally accounted for or ex
plained, on the ground that it was not competent
ior the Court, to exclude it by its own rule.—Pat-
tieson vs. Hinn, 5 Pit 233, 43. The 22d section
requires that an authenticated transcript of the re
cord shall be annexed to and returned with the writ
of error. The authority of any rule of this Court,
then, must yield to this law, (according to the prin
ciple of Pattieson vs. Hinn,) the proviso to the 17th
section ofthe Judiciary Act—1 Story 60, and the
common law rules of evidence. It is an universal
principle in the construction of statutes, that where
words are used which have a fixed, legai, and de
finite meaning, by the rules of law they shall be
deemed to have been used by the legislature with
a reference to such well known and received ac
ceptation unless a contrary intention appears in the
law itself, or by necessary implication. Authenti
cated then means, as transcripts had ever been
and then were, by all Superior Courts—authenti
cated by the return and signature, or seal of the
Judges or presiding Judge of the Court, to whom
the writ of error was directed, and “annexed and
returned therewith,” means attached thereto as a
schedule which was the transcript called for. It is
done by the Judges, who alone have the control of
tive powelr, or it given
1 availthe plain tiff,’must
ines an
Legis-
jOlil *
leenii
Idvicef
istion'
she
tl
Virginia. The effect ofthe writ of error i« to bring {the record, and could bk done in no other wav, but
the record into Court, arid submit the judgment of by direction of an Act of Congress, or (for thesake
the inferior tribunal to re*examination. It acts J ot orgument,) at least an explicit and definite rule
with the Indians, and tlie Legislative acts and pro
ceedings of Georgia, which, he contends, show the
Cherokees to be a State or Nation, which this Court
is bound to judicially know as such—to have and
possess a jurisdiction over the lands they occupy,
..►'.a., a .it huritv which supersedes and annuls that
tutrionty wtj
r Ge Kgia. So solemn a subject was never pre-
nte.l for the consideration of any Judicial Tribu
te an
o
s
n il, and none so serious can ever recur. Hitherto,
the people ofthe United States have believed, that,
within the bounds of this Union, there exists only
twenty-four States; that they were free, sovereign
and independent within their limits; and they have,
as yet, to learn by the impending judgment of this
court, that there now exist, have existed, and are
to exist as many Indian States, or nations, as can
preseat themselves before us with the same preten
sions as the Cherokee or anv other of those who
are named 8nd considered in and by the con-;
si'tuiion as Indian tribes. The Cherokees have
not as yet been deemed to be an old State within
the jurisdiction of Georgia. The United States,
by the solemn and mutual act of cession and com
pact with Georgia, ceded to her all the territory,
soil aud jurisdiction, now occupied by the Cliero-
kees, and thus declared it to be within her jurisdic
tion.—The first clause of the third section of the
fourth article of the Constitution ordains: “New
States mav be admitted bv the Congress ink) this
Union, but no new States shall be formed or erected
unthin the jurisdiction of any other State.”
The Constitution recognizes in ail its provisions,
the existence of the Stales which formed it. Ii
n either limits or atiumipts to confine them to boun
daries narro ver than their charters defined. The
oid and new Congress, have accepted cessions of
territory it their extremest verge. Can it then be
tint th*~"e were existing within these boundaries.
Indian States and nations, before its adoption; that
tlie States by whose concessions of power it was
formed, did not possess a iorisdiction commensur
ate with tlieir charters? Virginia had her Courts
o i the Mississippi; under the confederation was
♦his an usurpation on the jurisdiction of Indian
tribes, and was it intended that their sovereignty
shn i!d pejdoemed in the eye of the supreme law,
and the judicial eye ol' tljjt supreme xnbunjm »a-
only on the record; it removes it into the sujiervi-
sing tribuHal-410. The citation is simply notice
to Uie opposite party, that the record Is transferred
into another Court, where he may appear or de
cline to appear as his judgment or inclination may
determine. It is not a suit nor has it the effect of
process—411. The writ of error is the process
which removes the record to this Court. It must
bear test of the Chief Justice, be under tlie seal of
the Court and signed by the Cierk thereof,” 1 Sto
ry 67, 257,2 DaII. 401. “Its object is to cite the par
ties to this Court, to bring up ihe record, and
it is the act of the Court, 8 Win 320,13 Wh. 303,
1 S. P. Its form is that which has been adopted
and used in Courts of common law for centuries, &,
in the Stab's front their organization. Its com
mand Ls “if judgment, be therein given, that then
under your seal you distinctly and openly send the
record and proceedings aforesaid, with all things
concerning the same, to the Supreme Court of the
United States, together with this writ.” The lan
guage of this writ cannot he mistaken. It i# di
rected to the Judges ofthe State Court; the order
is to them, to send the record under their seal, so
that the return must be made by them. This
command of the writ is its essence, it is the means
and the process, 3 Wh. 304, bv which the appellate
jurisdiction of this Court is directed to be exercis-
of this Court, expressly dispensing with the mode
of authentication, which has been in use for ages,
and was evidently referred to in the 22d Section,
and substituting therefor the attestation of the
Clerk, under the seal of the Court. It is unneces
sary to examine how far such a rule would come
within the power of this Court, under the 17th Sec
tion, authorizing “all the Courts of the United
States to make all necessary rules, for the orderly
conducting the business of the Courts,” as ex
plained in 7 Cr. 34—10 Wh. 22. 56. 64—for no
such rule exists. The 11th rule adopted in 1797,
is “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 ofthe record,
and of all proceedings in the case, under his hand
and the seal of the Court, 1 Pit. pref. VII—Con
struing this rule as an act of Congress, it would not
be taken matter the rulesof the common law, fur
ther than its words or legal import extended, and
would leave them applicable <o the return of the
Judges, and tlie annexation ofthe transcript to the
writ by them—“a fortiori”—when these rules are
so evidently embodied in the 22d Section. Taking
the 1st Section of the fourth article ofthe Constitu
tion, the law of 1790, the 22d Section of the Judi
ciary Act and this lltn rule as laws in pari mate
ria, there is no difficulty. In 1789, Congress had
ed by the 25th and 22d sections ofthe judiciary act,! not executed their constitutional powers to pre
the words of which are “upon a writ of error where- j scribe the mode of proving judicial records—hence
to shall be annexed and returned therewith, .it the i in the 2d Seciion, the word “authenticated” only
day and place therein mentioned, an authenticated j is used, ajjpiicable to tlie common law mode ofati-
transcript of the record.” 1 Story 60. If the ques- j thenticaiion, until Congress should" legislate on the
tioo is asked, by whom the record shall be so an- j subject, and prospectively sfter they should have
nexed and returned, the writ answers, by the judg- j prescribed the mode of authentication. Asthehtw
es: if how, under tlieir seal distinctly and openly:; of the succeeding Session, 1st Story 93, required
if in what form it 3liall be so annexed and returned, j the certificate of tlie preaiding Judge to be super-
the answer is to be found in every return to a writ; added to the attestat ion of the Clerk and the seal
of error in the Courts of the Common Law and ' of the Court, the rule ofthe Court was probably
the States, from the Court of Kings Bench in the j adopted to meet the difficulty, and the word many
one of the Supreme, and of Courts of common Plea>
or other Courts to whom a writ of errors lit*, in
seems evidently to denote that such was the inten
tion ofthe Court, in adopting it. The return of
the other, and in every return to a Certiorari to a ; the Judge to the writ of error, annexing thereto,
Justice ofthe Peace in both. And if a doubt can
arise whether the rules and practice, the formsand
and at it* head, a transcript of the record as a
schedule, being considered as tantamount to his
mode of proceeding thus adopted and aciect on j certificate, at tiie/oa7 of the attestation of the Clerk.
through all time and in all Courts acting on the
principle according to the course of the Common
law, is to lie considered as a rule in the Federal
Courts, until altered by Law, or Courts in tlie ex
ercise of t^eir legal authority, the answer will be
found in I Storv 67, 256; 3 Wh. 221; 4 Wh. 115; 7
Wh. 45, 5 Cr. 222; 10 Wh. 56; 1 Pit 613.
The forms of writs have always been deemed in
themselves the very evidence ofthe law, and tak
en by jthe greatest judges as safe guides to their
judgment. “The Writs in the Register are the
Body; and, as it were, the Text, of which our
Books for 400 vears are expositions, the foundation,
the principles)” 8 Coke, prelace—“for upon these
fundamentals ihe whole Law doth depend.” F. N.
B. preface. If they are of themselves authority,
how much is that authority strengthened by uni
versal adoption, sanction, and usage. The same
remarks apply-equally to the terms to the. returns of
writs. They respond to the command of the writs
and are signed by those to whom they are directed
—the Sheriff or the Judges, as the case may be. It
would be an useful affectation of learning to quote
Books, Cases, Precedents, or Forms, in support of
these principles. It is enough to assert, without
the fear of contradiction, tha* in the whole body of
the common law, English or American, there can-
uot lie found an exception. A writ of error never is-
ftva any Court a CJcr^of Aniftferjor Court,
f l.e rule too, superadds to the requisites of the
l common law, that the seal of'the Court should be
affixed: thus distinctly referring to the law of 1790,
and coilforming, substantially, to all its provisions.-*,
To imp He a different meaning to this rule, would
he to make this Court declare, that in the execu
tion of tneir pow-'r, they would judicially revise,
inspect with,judicial eyes, and act on a paper pur
porting to be the transcript, of a record, when the
evidence of its authenticity was so utterly detective,
that none of the Judges would permit it tube read
in evidence in a Circuit Court, to shew the acts
and proceeding of the tribunal from which it pro
fessed to emanate.’ In a civil suit, brought on a
judgment of the Superior Court of the county ot
Gwinnett, in ami lor the State of Georgia, certified
precisely as tins is, such a paper could not be
shewn to a Jury, in any Circuit or district Court
of the United States, as even pHma facia evidence,
that a judgment had been rendered. On a plea of
nul tiel record, anv Court not sitting in Georgia,
State or Federal, would render judgment for the
Defendant, on a transcript so attested. Yet, that
this Court, in the exercise of if» highest jurisdic
tion, will consider this paper, when attested by the
same Clerk, and under Uie same seal, in a criminal
case, as the record of the same Coi r-*, ns its judg
ment on iho»e gi-eat constitutional q st ons whicl
apology for deciming me — mim . - . - . . ...
diction, to which all partiel have submitted. Yet, deems to be exclusively within
when it appears tnat its record is not legally be- In proceeding; m such a case U)
fore them, no Court of erro. can revise the judg- tion, nothing is form, all is substance, «N,i
ment of an inferior Court. No Judge ever search- er can reverse our judgment lor ir regulator
es a record, to find out that the citizenship of tiie ror hereafter discovered, itsojierauon^i o^ *^
parties is not averred; but, wiieu he judicially ; judgment by delault (or money or dues-^»er m
knows it, his power over the cause ceases-it is adjournment, the record ot our.j
coram non judice. It will I
Court,and other causes, fo mo , , , - - j- • » i
will be stricken from tlie docket. 3 Dali. 382—4. preme law ol ihe land, by ns judicial expositionj
i! there was ever a case which called lor the ap- according to the meaning and uiihc spirit_©| g
plication ot this rule it is this, though the proceed- constitution and judiciary act. These are tlie
ing is ex parte. If we render judgment, it is open of tiie United States which- give us
to no revision hereafter; beyond this tribunal tlie annul State tews, by adjudicating on the l^po* £
Constitution has placed no sentinel or guard, to ofState Courts brought beforeiis by wnt o! error
protect the rights of parties under the supreme law the custom of the Uuiied States is its cotamm I
ofthe land, from lawless violation. The process brought here by our ancestors, which pr<~
which annuls even the ex parte judgments of this the mode, the process, the rule# and pruimples,
tribunal, will subject the elements of this Govern- which that power must, and can only be exercise^
ment to a dreadful test. It is here, that the su- If a legal injury has been inflicted on the plamtiit;
preme power of the nation has placed the precious it can be redressed bv this Court on this writ, only
casket, wh : ch contains that magic, mystic band,, by the application ol the Tourniquet the Trepan*
and which unites tweniy-four sovereign and inde- j and the knife to the legislation of Georgia.- Sire-
pendent States, in one harmonious Union, which, j does not submit to the operation, she denies, per
haps defies our juri^iction. *> \Ve cannot draw to
ourselves the supervision of her la ws, by a lilliputiaa
cord; it must be made by supreme law, and attach
ed according to -u#Kr~. its judicial records, which,
must be drawn to our judicial inspection, authen
ticated by the rules of both the written and unw;i!-
ten law, or our decision upon it becomes inopera
tive. No silent practice can sileuce tlie law, or
make tiiat a record which is a jwper unknown to
the law. t cannot pull by such a cord as that a
very thread which snaps by its own extension. In
this case, the plaintiff" brings into Court a paper
which is the oute warrant by which we can oper
ate on tlie law 7 complained ot. In my most deliber
ate judgment, it wants that authentication which
the law requires before it can be made the subject
ofthe judicial cognizance of tifo Couit. It is con
fessedly inadmissible ou a trial- before a jury; or a
plea t© :?n inferior Court, sitting on a question of
meie debt or damage. It cannot vie in authen
ticity with the transcript of the acts and procee
dings of the Legislature of a State in its legislative
and judicial character attested by the Secretary of
States, and certified by the Governor under its gnat
seal, which only a few days since this Court re
fused to hear or see in a legal argument on the
existence ol"a legislative usage. It cannot he ne
cessary to enquire whether this paper is under ihe
inspection of tiie judicial eye, as the record of a for
eign law or a foreign judgment, and if not so ad-
missable fiirany purjxi.se in any other Court, oria
this even for legal information, my judgment is
clear and decided that in this case, it is not toe
subject matter, the record, the authenticated iruns-
mipt, the warrant, the basis ol, or lor the exercise
of that tremendous jurisdiction, w inch by the ef
fect of our judgment, eitbei converts Indian TnLea.
into States or Nations, or annuls 8iate legislation
within its chartered limits, in obedience to seme
power of sovereignty, betore which tiie authority
of its laws must disappear, i am, therefore, con
strained to say, that the record ofthe Court betnw-
is not judicially before this Court, and I (eel my
self bound not to inspect with judicial eyes the j,a-
per annexed to the >V rit of Erroi, being neiti r
a record nor an authenticated U an script ol me,
and feel myself forbidden to make it the sub ec /f“
my judicial consideration for judicial effect on tl.er
laws of a State of this Union, one of its component
parts. In taking this stand, 1 cannot, enquire m-
to tlie other questions presented in the argiiuent
of this case: my judgment leils me it would t.e ex
tra-judical to enquire whether there is error in me
judgment of the State Court, and that in coming
to this conclusion, I act in obedience to the law.
L The greats learning and talents of tiie eminent ad
vocates ol the plaintiff, have furnished me with no
authority of*law, to which it can be, surrendered;
the decisions of this tribunal have furnished none
as yet. Left then free to follow tiie convictions of
mind, resulting from the most auxtous defioeu. oir
and diligent research in the law, 1 must say, it; he
words ot one of its sages and orac t s,-—“For these
and tlie rest of my reports, 1 have, as much anf
could,avoided obscurity, ambiguity, jeopardy and
novelty, I. Obscurity; for that is like unto daik-
ness wherein a man, for want of light, can hardly,
with all his industry, discern. 2. Ambiguity ;
when there is light enough, but there be so many
winding and intricate ways, as a man, for wan. oF
direction, shall be much perplexed and entangled
to find out tlie right w-ay. 3. Jeopardy; either in
publishing any thing tiiat might rather stir up strife
and controversies in this troublesome world, than
established quiet and repose lietween man and
man;—for a commentary should not be like the sun,
that raiseth up thicker and greater mists and fogs
than it can disjierse ; or in bringing the reader, by
any meaus into the least question of suit or danger
at all. 4. Novelty; for I have ever lioiden alt
new or private interpretations or opinions which;
have no ground or warrant out of the reason , or
rule of our books or former precedents, to be dan
gerous, and not worthy of any observations; for-
‘ periculasum existimn quod banorum rirorum none
coinvrobature exemplo.” —7 Coke, preface ixx.
There is something within which tells me “there
is a place where truth, which is the foundation of
justice, should not be hidden and unknown. Nei
ther is site pleased, when once she is found out, re
vealed, to be called into argument and question a-
gain, as if she were not verity indeed; for her plai^
being between the head and the heart, doth partici—
pateof them both—of the head for judgment, and
the heart for simplicity.”— [10 C’tpref. 1,2.] In*
that place there is a monitor which reminds me of a.
maxim of tiie law: tl Pesusjudic%o quam rim injuste*
facerej” and my high duties compel me not to for
get another: “Par inparin imperium non babel*
Thus supported—■ “Stoantiquasoids” —stop a se
cond time at the threshold ofCJherokee sovereignty*
knowing, judicially, no State or Nation within rlie-
bounds of this Union, not recognised by its (Mnsti-
tion, and subject to its delegated legislation. But*
however strong this support why be deemed, it be
comes a duty, on my part, afta&iaving called for
an argument on this preliminai^ question, to notice
the brief one which was addressed. It is due, also*
to this Court, tc notice its precedents releired to,
as establishing a rule at variance with the one org
which I have felt compelled to act. The learned
Counsel did not contend, that the paper before u&
could be judicially inspected by this Court, in. ac
cordance with the rules and principles of the com
mon law They relied on the tlth rule, and the
praclice and decision of this Court thereon, in tl e%
7 wo cases cited by them.
The first was Hunter vs. Martin, repotted in L
from the wrecks of a disjointed confederacy, wri
thing under the agonising aud convuis-ve throes of
a mighty revolution, left the people free; but, not
knowing what freedom Was, or how ita blessings
could he enjoyed—a nominal nation, on whom a
kind and beneficent Providence has bestowed its
blessings, in the fulness of benignant bounty, but
would have bestowed them in vain, had not this
Government arose, the noblest work of man, con
structed by a patriotism as pure as poor mortali
ty admits, and in all the plenitude ot wisdom and
justice, that belongs to finite beings—a Govern
ment which, unseen and unl'elt, sjne here where
its machinery is visible, ojierates (if the expression
can be applied to the work of man) like a Provi
dence, its existence not known by its physical ac
tion, but felt, as the deepest morai conviction,
known and hailed, only by the blessings it diffuses.
Yet the Government is strong in all its movements;
directed in any of its departments; confined to the
direct and narrow path, prescri ed by a supreme
law which all must obey. Public confidence has
attended, and public good has flowed w T itlimit stint.
In its foreign action, this takes no part; but, in its
domestic movements, in asserting and enforcing
the supremacy and majesty of the law, by its ex-
jXisitition and due administration, this tribunal is
the depository ofthe confidence and judicial pow
er of the nation—the well tested tie, which, while-
ever retained, will preserve it as it began, “£ pluri-
busunnm.” When I reflect on the extent ofthe
judicid power, tlie subjects of its application, the
mode and effects of its operation, and its vital bear
ing on all the most precious institutions of the
country, I tremble at the awful responsibility of its
individual members. Bound not to transcend the
limits of the Constitution and law’s and equally
bound uot to falter within them, when judicial duty
impels me onw’ard—not daring to consult any hu
man authority as a guide to my judgment, unless
the laws of the country and the judgment of those
who are, and have been their expositors; but un
der every obligation, not to take the breath of any
man, as the law of the land, while sitting here by a
power whicli forbids any tribunal to correct the
errors ofan honest judgment; I cannot approach a
case like this without awe and dread, whether con
curring or dissenting, supported by the high au
thority of my brethren, or compelled to act in obe
dience to what my poor judgment dictates to me
as one higher.
This Court is now Called onto declare bv its
solemn judgment, the legitimate existence of tlie
Cherokees as a State or Nation, within the hounds
of this Union—wlio are no parties to its Constitu
tion or law’s; that this Government lias solemnly
recognized their national character, by Treaties
and law’s which leave them the power of .Sove
reignty over the Territory they occupy, within
which no laws can operate, except by their own
enactment, or conveniional between that nation
and this. And if the Cherokees are such a nation,
no one can easily number those which will arise
into being, or be deemed to have always been, and
vet to lie existing, and that, by a judicial fiat of this
Court. In the contemplation ot the future pros
pects of the country: with such a scene before us,
a# unborn, unknown nations, rushing forward to
claim the interposition of our high powers to force
them among the General and State Governments,
a# nations without the jurisdiction and laws of
both, sovereign and supreme, except in tiie dispo
sal of their lands, and the exclusive right of trade
and intercourse within the boundaries of a State,
unless shorn of their power by a Treaty as other
nation* may be, I will act with all tlie caution
whi#h such occasion demands, when called on to
exercise the judicial pow’er of the Constitution, by
annulling the lawoi a Sovereign State of this Un
ion, and to arrest by the judicial arm the adminis
tration of its criminal jurisprudence, under laws
deemed necessary for tlie peace of the State.
I must first examine the process and the a) eged
record, which are the only warrant and authority
by whicli this Court can attach it# high powers to
Sta te legislation, and force it to submit to the law
which all must obey. Iff they do not confer on me
the panoply of the law, the deed must be done with
out my interposition, however strongly any case
may present an appeal to feelings foreign from ju
dicial. I will not, for 1 dare not enquire into tlieir
validit y, unless by the warrant of law, clearly giv
en and strictly pursued ; none other Can. authorize
me to judicially declare a State law to be nullity.
To mv mind the only questions open, are, is the law
ofthe State re
treaties ofthe
to the Constitution, laws or
ipugnant
United States; has the court to whom
our writ of error is directed, enforced such law bv
a judgment violating the rights of the plaintiff in
error, secured to him by any law supreme over
State legislation, and has this court legal and au
thentic evidence of the existence of such judgment
and iis terms annexed to and returned with our
writ? Is the transcript of their record and pro
ceedings so authenticated according to the acts of
Congress, that in the language of this court in
Craig vs. Missouri, 4 Peters 428: “We can in-
sjr ct it as a record with judicial eyes.” The plain
tiff in error muat satisfy the court on all these ques
tions most clearly, before, in the words of the writ
of error and in the spirit ofthe laws, “the record
and proceedings being inspected, it may adjudge
what of right aud according to the laws and cus
tom of the United States ought to be done and
I will add, as had been done in all ages in the land
and Courts of our ancestors, according to the laws
and customs of England, as I find them adopted
ami embodied in those of the United States, lbrn»-
ng the only rule and guide by which to tread the
agitate Uie country, *iarnj the friendtsof the Union lnarrow path prescribe^. Iff tltfSe arc net a wv*
♦When this opinion was drawn that of the. Court .
was kaowi^>ut aq; its reasons or \