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vation of their character as a state was essential to their happiness and even to their existence; it was essential, too, to enable them to fulfil many of their treaty obligations towards the United States.
In conclusion, upon this point, Mr. Sergeant remarked that he would not be understood to question the power of the United States over the whole matter. He would not
he is equally free, and equally master of himself. But as it would be inconvenient for all your men to meet in one place, would it not be better for every town to do as we do: that is to say, choose by the vote of the majority of the town and of the country people nearer to that than to any other town, one, two, three or more, according to the size of the town, of those whom each voter thinks the wisest and honestest men of their place, and let these meet together and agree which of our laws suit them. But these men know nothing of our laws. How then can they know which to adopt ? Let them associate in their council our beloved man living with them, Colonel Meigs, and he will tell them what our law is on any point they desire. He will inform them also of our methods of doi business in our councils, so as to preserve order, and to obtain the vote of every member fairly. This council can make a law for giving to every head of a family a separate parcel of land, which, when he has built upon and im. proved, it shall belong to him and his descendants for ever, and which the nation itself shall have no right to sell from under his feet. They will de. termine too, what punishment shall be inflicted for every crime. In our states generally, we punish murder only by death, and all other crimes by solitary confinement in a prison.
But when you shall have adopted laws, who are to execute them? Per. haps it
may be best to permit every town and the settlers in its neighbour. hood attached to it, to select some of their best men, by a majority of its voters, to be judges in all differences, and to execute the law according to their own judgment. Your council of representatives will decide on this, or such other mode as may best suit you. I suggest these things, my chil. dren, for the consideration of the Upper Towns of your nation, to be decided on as they think best, and I sincerely wish you may succeed in your laud. able endeavours to save the remains of your nation, by adopting industrious occupations, and a government of regular laws. In this you may rely on the counsel and assistance of the government of the United States. Deli. ver these words to your people in my name, and assure them of my friend. ship:
undertake to say what congress might do. But until the power was plainly exercised, to the extent of abrogating the treaties, upon the responsibility which belonged to such a step ; those trcaties would continue to be the law, and must be respected and executed as such.
2. That a sufficient " case” or “controversy” was presented to call for the exercise of judicial power.
What constituted such a case ? "A case in law or equity” is a term well understood, and of limited signification. It is “a controversy between parties which has taken a shape for judicial decision." (Speech of Chief Justice Marshall in the matter of Nash alias Robbins, note to Bee,' 277.) It is defined also in 9 Wheat. 819. “This clause" (1st clause, 2d sect. 3d art: Constitution United States) "enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting upon it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the constitution declares, that the judicial power shall extend to all cases arising under the constitution, laws, and treaties of the United States."
To make such a case a controversy, there must be, 1. Parties capable of suing and being sued. 2. A subject matter proper for judicial decision.
1. It could not be questioned that here were such parties. They were within the very words of the constitution. That clausė admitted at the same time, that there might be subjects of judicial controversy between such parties; there is, therefore, no presumption from their character against the jurisdiction. It might be, that a question between the United States and a foreign state, arising upon a treaty, could not be a case of judicial cog
nizance; that it would necessarily be political or diplomatic, and not judicial. But a question with a state could not be of that description, because a state could have no political or diplomatic relations. Const. Art. 1, Sect. 10. It was no more diplomatic than if it were the case of an individual complainant. The questions might be precisely the same. Its being the case of a state, defendant, could make no difference, for this court entertained jurisdiction in equity of controversies between states, as in the pending case between New Jersey and New York. As to the parties, there could be no doubt.
2. Was there a subject matter, proper for judicial decision? That must' depend upon the nature of the right which was asserted, and the nature of the wrong which was inflicted or meditated. As to the rights of the complainants, as they were here asserted, they might be considered for the present purpose as founded entirely upon the laws of the United States; that is, upon treaties and upon acts of congress, which were of equal authority. These rights were judicially known to the court as part and parcel of the laws of the United States. not necessary to go out of those laws for the purpose of investigating them. They were not obliged now to explore the original grounds of right, nor to question the European principle of discovery.
Such as they appeared upon the statute book the complainants were willing to consider them; and they asked nothing more than to have them enforced as they there appeared.
Of these rights the Cherokees were in actual possession; with the knowledge and acquiescence of all the authorities of the United States. There was no dispute between them. Their claim was only to be protected from disturbance or interference with their established rights ; and they claimed it against those who were subject to the authority of the laws of the United States and within
their jurisdiction, but did not profess to derive any sanction for their conduct from the United States.
These rights, it was further to be remarked, were such, that in a suit between the citizens of the United States, they would undoubtedly be within the jurisdiction of the laws of the United States. What are they? The treaty of July 1817 (art. 5) continued in force all former treaties. The treaty of February 1819, was only a final adjustment of the former. All the guarantees of former treati are therefore in full force.
1. The first of the rights admitted, and professed to be guarantied and secured to them, was the right, within their own boundary, of self government. Their political power is abridged by their own concesssions, and so is their right of property by conditions annexed to it. But the right to regulate their own civil condition within their own limits, to make and to execute their own laws, is exclusive and absolute. It is extended expressly by treaty, as well as by the intercourse act, to persons going amongst them. This is the plain import of all the treaties, as well as of the intercourse act. In the treaties, means are employed for civilizing them, but they are proposed in the way of advice and assistance, and not in the way of authority or command. See particularly Art. 14, treaty of 1791 ; Art. 2, treaty of 1806; preamble of treaty of 1817, and Art. 8 of same.
2. The next was the right of property, modified, but still exclusive and absolute against all interference. The mode of enjoying it was left to themselves. Whatever it might be, it resolved itself into individual enjoyment as to its end and purpose. As against the United States and their citizens, this right was sacred and incontestible. It was acknowledged in every variety of way. The boundaries were fixed by treaty, and what was within them was acknowledged to be the land of the Cherokees. This was the scope of all the treaties. Treaty of Hopewell,
Art. 4. Treaty of Holston, Art. 7, &c. The United States would not en assume the right of passage without their consent, and when it was granted, it was by treaty in a limited way, by a particular road. Treaty of Holston, Art. 5. Treaty of 1795, Art. 7. They stipulate against intrusions, abandoning intruders to the laws and tribunals of the Cherokees. Treaty of Hopewell, Art. 5. Treaty of Holston, Art. 8. They stipulate also for protection. Treaty of 1798, Art 4.
It was unnecessary for this purpose to go more fully into those treaties. They spoke one language throughout, and that was, that the Cherokees were entitled to the occupation and enjoyment of their land without intrusion or interference. The same language was spoken by the intercourse act. Indeed, he might add, that as yet, it was not disputed by any act or declaration of the United States through any official organ authorized to do or to speak on the subject. These rights were absolutely unquestioned, and the obligation to protect them was in full force. The United States had never by any competent authority disclaimed it. They do not disclaim it now. The solemn guarantee advised by the senate in 1790, and given by the executive, with the advice of the senate, in the year 1791, is as fresh in its claim upon the public faith as the day when the treaty was signed. It is true that the stipulated protection is not afforded; but the congress of the United States have never denied the right to claim, or the obligation to afford it.
3. What are the wrongs they complain of ?
The violation of these rights, to the extent of their total destruction and extinction. The legislation of Georgia proposes to annihilate them, as its very end and aim ; the acts already done under it are in furtherance of that purpose, and those which are further menaced will be its consummation. The laws of Georgia profess no other ob