Constitutional Whig. [volume] (Richmond, Va.) 1824-1832, 1832-03-30
THE CHEROKEE CASE.

Chief Justice MARSHALL, January Term, 1892
oAMUEL "A WORCESTER, as. TIE STATE GEORGIA.
This cause, in every point of view in which it
can be placed, is of the deepest interest
The defendant is n State, a member of the Uni
on, which has exercised the powers of government
over a feople who deny its jurisdiction, and are
under the protection ofthe United States
The ant'tf is a citizen of the State of Vermont
condemned TO hard labor for four years i'm the pcn
Tertiary OF Gergia, under color of an act which he
alleges to be repugnant to the constitution, laws
and treaties, of the United States
The legislative power of a State tho controlling
power ofthc constitution and laws of the United
States the rights, # they have any, tho political
existence OF once numerous and powerful People,
the personal liberty OF citizen are all involved
In the subject now to considered
III Dehooves tins Court, in every case, more es
pecially IN this, to examine into its jurisdiction
Win scrutlnlZlng eyes, before it proceeds to the
exercise of power which is controverted.
The first step in the performance of this duty
Is The inquiry whether the record is properly before
the Court.
1t is certified by the Clerk of the Court which
pronounced the Judgment Of condemnation under
winch the p aintitf in error is imprisoned and is
also authenticated by the seal of the Court Ii is
returned with, and annexed to a writ of error is
sued IN regular form, the citation being signed bv
one OF the Associate Justices of the Supreme
Court, and served on the Governor and Attorney
General OF the State more than thirty days before
the commencement of the term to which the writ
OF error returnablc.
The Judicial act,* far as it prescrbcs the
mode otproceedng appears to have been literally
pursued.
In February, 1897 a rnle+ was made on this
subject, in the following words: at is ordered by
the Court that the Clerk of the Court to which anv
writ OF error shall be directed, may make return
OF the same by transmitting true copy of the
record, and OF all proceedings in the same under
his hand and the seal of the Court"
rms has been done. But the signature of the
Judge has not been added to that of the clerk
Inc law does not require it. The rule does not
require it.
In the of Martin VS.. Huntcrst lessee, an ex-
ceptIon was taken to the return Of the refusal of
the state Court to enter prior Judgment of revcr-
sal by this Court, because it was not made by the
Judge OF the State Court to which the writ was di-
rcctcd; but the exception was oyerrulcd
and the return held sufficient. In Buel
vs. van Ncss,9 a writ of error to Il State Court
inc record was authenticated in the same manner.
NO exception was taken to it. These were civil
cases Bat 1t has been truly said at the bar that
III regard to this process, the law makes no disinc
ton between criminal and civil case. The same
return is required in both If the sanction of the
Court could be necessary for the establishment of
tins position, it has been silently given.
McCulloch the State of Maryland.l was
On tam action, brought to recover a penalty, and
the record was authenticated by the seal of the
Court and the signature of the Clerk without that
OF Judge. Brown ct al VS.. the State of Mary
land, was an Indictment for fine and forfeiture.
The record in this case too. was authenticated
by the seal of the Court and the certificate of the
Clerk. The practice is both ways.
The record, then, according to the Judiciary
act, and the rule and practice of the Court is re-
gularly before us.
The more important inquiry is does it exhibit q
case cognizablc by this tribunal?
Inc Indictment charges the plaintiff in error and
others, being white persons, with the offence of sire
siding within the limits of the Cherokee nation
without liccncc,' and without having taken the
oath TO support and defend the Constitution and
laws the State of Georgia"
The defendant in the State Court appeared i'm
proper person, and filed the following plea:
'And the said Samuel A. Worcester, in his own
proper person. and says that this court ought
not 10 take further cogniZInCe of the action and
prosecution aforesaid, because, he says that, on
the 10Th day ofJuly, in the year 1881, he was and
still Is, resident in the Cherokee naion and that
INC SAID supposed crime or crimes, and each OF
thcm were committed, if committed at all at the
town OF New Echota, in The said Cherokee nation,
out OF the jurisdiction Of this court, and not i'm the
county OF Gwinnctt, or elsewhere within the iuris.
GicuCn OF this court: And this defendant saith
Inat nc is citizen ofthc State Of Vermont one oil
lnc United states of America and that he entered
the aforesaid Cherokee nation i'm the conocfv Of .
uuIy authorised Missionary of tc American Board
VI commissioners for Foreign Missions, under tho
authority OF the President of the United States and
mas hoI since been required by him TO leave il: that
he was, at the time Of his arrest enparcd in preach
ing the Gospel to The Cherokee Indians and in
transIating the sacred Scriptures into their Ian
guagc with the permission aud approval of the said
Cherokee nation, and in accordance with tbo hu
manc policy Of the Government of the u. = f.,
the civilization and improvement Of the Indians
and chat his residence there, for this purpose. !,
the residence charged in the aforesaid Indictment
and this defendant further saith, that this prosccu
ton the state of Georgia ought not to have or main
tain, because nc saith, that several treaties have
from time to time, been entered into bctweccn the
United States and the Cherokee nation Of Indians
to wit AT HoPcwcll, on the 2Sth day Of Novcm.
per- 100; at Iloiston, the Cd day Of July. 1891
at Philadelphia, on the 26th day Of June, 1894; at
Judicial SCI, sec A. -, v. 2. p. s., s.
e VIII. Rules LIST WIN. 3o4. $751;