Part 1

OPINION OF THE SUPREME COURT OF THE UNITED STATES,

AT JANUARY TERM, 1832,

DELIVERED BY MR. CHIEF JUSTICE MARSHALL.

IN THE CASE OF

SAMUEL A. WORCESTER, _Plaintiff in Error_,

_versus_

THE STATE OF GEORGIA

With a statement of the case, extracted from the Records of the Supreme Court of the United States.

Printed from Authenticated Copies. Washington: Printed by Gales and Seaton. 1852.

OPINION, &c.

SAMUEL A. WORCESTER, _Plaintiff in Error_,

_vs._

THE STATE OF GEORGIA.

A writ of error was issued from the Supreme Court of the United States, directed to "the honorable the Judges of the Superior Court for the County of Gwinnett, in the State of Georgia," commanding them to "send to the said Supreme Court of the United States, the record and proceedings in the said Superior Court of the County of Gwinnett, between the State of Georgia, Plaintiff, and Samuel A. Worcester, Defendant, on an indictment in that Court."

This writ of error was returnable on the second Monday of January, 1832, and was attested by the Honorable HENRY BALDWIN, one of the Associate Justices of the Supreme Court of the United States.

A citation was issued, directed to "the State of Georgia," dated October 27, 1831, and signed by the Honorable HENRY BALDWIN, by which the said State was cited to show cause why the error in the judgment against Samuel A. Worcester, in the writ of error mentioned, if there was any error, should not be arrested, and why speedy justice should not be done to the parties in that behalf.

The citation was served on his Excellency WILSON LUMPKIN, Governor of the State of Georgia, on the 24th November, 1831, and on CHARLES J. JENKINS, Esq. Attorney General of the said State, on the 22d November, 1831.

The writ of error was returned to the Supreme Court of the United States, with the record of the proceedings in the Court for the County of Gwinnett annexed thereto, and with the following certificate, under the seal of the Court:

GEORGIA, _Gwinnett County, ss._

I, John G. Park, Clerk of the Superior Court for the County of Gwinnett, and State aforesaid, do certify that the annexed and foregoing is a full and complete exemplification of the proceedings and judgment had in said Court, against Samuel A. Worcester, one of the Defendants in the case therein mentioned as of record in the said Superior Court.

Given under my hand, and the seal of the Court, this 28th day of November, 1831.

JOHN G. PARK, _Clerk_.

_The following is a copy of the Record_:

"GEORGIA, _Gwinnett county_:

The grand jurors, sworn, chosen, and selected for the county of Gwinnett, to wit: John S. Wilson, Isaac Gilbert, James Wells, Jr., Benjamin S. Smith, James W. Moore, Robert Craig, John M. Thompson, Hamilton Garmany, Amos Wellborn, William Green, Buckner Harris, William Rakestraw, Jones Douglass, Wiley Brogdon, B. F. Johnson, Wilson Strickland, Richard J. Watts, and John White--

In the name and behalf of the citizens of Georgia, charge and accuse Elizur Butler, Samuel A. Worcester, James Trott, Samuel Mays, Surry Eaton, Austin Copeland, and Edward D. Losure, white persons of said county, with the offence of 'residing within the limits of the Cherokee nation, without a licence:' For that the said Elizur Butler, Samuel A. Worcester, James Trott, Samuel Mays, Surry Eaton, Austin Copeland, and Edward D. Losure, white persons as aforesaid, on the fifteenth day of July, eighteen hundred and thirty one, _did reside_ in that part of the Cherokee nation attached by the laws of said State to the said county, and in the county aforesaid, without a licence or permit from his Excellency the Governor of said State, or from any agent authorized by his Excellency the Governor aforesaid to grant such permit or licence, and without having taken the oath to support and defend the constitution and laws of the State of Georgia, and uprightly to demean themselves as citizens thereof, contrary to the laws of said State, the good order, peace, and dignity, thereof.

TURNER H. TRIPPE, _Sol. Gen'l._ JNO. W. A. SANFORD, _Pros'r._

_September_, 1831.

True bill:--JOHN S. WILSON, _Foreman_.

_Witnesses Sworn._--John W. A. Sanford, Charles H. Nelson, Moses Cantrell, William Wood, Jacob R. Brooks, Jno. F. Cox, William Tippins, Hubbard Barker.

GWINNETT SUPERIOR COURT, _September Term_, 1831.

STATE OF GEORGIA, } _vs._ } _Indictment for a_ SAMUEL A. WORCESTER, ELIZUR BUTLER, } _misdemeanor._ AND OTHERS. }

And the said Samuel A. Worcester, in his own proper person, comes and says, that this Court ought not to take further cognizance of the action and prosecution aforesaid, because, he says, that, on the 15th day of July, in the year 1831, he was, and still is, a resident in the Cherokee nation; and that the said supposed crime, or crimes, and each of them, 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 in the county Gwinnett, or elsewhere within the jurisdiction of this Court. And this defendant saith, that he is a citizen of the State of Vermont, one of the United States of America, and that he entered the aforesaid Cherokee nation in the capacity of a duly authorized missionary of the American Board of Commissioners for Foreign Missions, under the authority of the President of the United States, and has not since been required by him to leave it: that he was, at the time of his arrest, engaged in preaching the Gospel to the Cherokee Indians, and in translating the sacred Scriptures into their language, with the permission and approval of the said Cherokee nation, and in accordance with the humane policy of the Government of the United States, for the civilization and improvement of the Indians; and that his residence there, for this purpose, is the residence charged in the aforesaid indictment: and this defendant further saith, that this prosecution the State of Georgia ought not to have or maintain, because, he saith, that several treaties have, from time to time, been entered into between the United States and the Cherokee nation of Indians, to wit: at Hopewell, on the 28th day of November, 1785; at Holston, on the 2d day of July, 1791; at Philadelphia, on the 26th day of June, 1794; at Tellico, on the 2d day of October, 1798; at Tellico, on the 24th day of October, 1804; at Tellico, on the 25th day of October, 1805; at Tellico, on the 27th day of October, 1805; at Washington City, on the 7th day of January, 1805; at Washington City, on the 22d day of March, 1816; at the Chickasaw Council House, on the 14th day of September, 1816; at the Cherokee Agency, on the 8th day of July, 1817, and at Washington City, on the 27th day of February, 1819: all which treaties have been duly ratified by the Senate of the United States of America; and, by which treaties, the United States of America acknowledge the said Cherokee nation to be a sovereign nation, authorized to govern themselves, and all persons who have settled within their territory, free from any right of legislative interference by the several States composing the United States of America, in reference to acts done within their own territory; and, by which treaties, the whole of the territory now occupied by the Cherokee nation, on the East of the Mississippi, has been solemnly guarantied to them; all of which treaties are existing treaties at this day, and in full force. By these treaties, and particularly by the treaties of Hopewell and Holston, the aforesaid territory is acknowledged to lie without the jurisdiction of the several States composing the Union of the United States; and, it is thereby specially stipulated, that the citizens of the United States shall not enter the aforesaid territory, even on a visit, without a passport from the governor of a State, or from some one duly authorized thereto, by the President of the United States: all of which will more fully and at large appear, by reference to the aforesaid treaties. And this defendant saith, that the several acts charged in the bill of indictment, were done, or omitted to be done, if at all, within the said territory so recognized as belonging to the said nation, and so, as aforesaid, held by them, under the guaranty of the United States: that, for those acts, the defendant is not amenable to the laws of Georgia, nor to the jurisdiction of the courts of the said State; and that the laws of the State of Georgia, which profess to add the said territory to the several adjacent counties of the said State, and to extend the laws of Georgia over the said territory, and persons inhabiting the same; and, in particular, the act on which this indictment _vs._ this defendant is grounded, to wit: "An act entitled an act to prevent the exercise of assumed and arbitrary power, by all persons, under pretext of authority from the Cherokee Indians, and their laws, and to prevent white persons from residing within that part of the chartered limits of Georgia, occupied by the Cherokee Indians, and to provide a guard for the protection of the gold mines, and to enforce the laws of the State within the aforesaid territory," are repugnant to the aforesaid treaties; which, according to the constitution of the United States, compose a part of the supreme law of the land; and that these laws of Georgia are, therefore, unconstitutional, void, and of no effect: that the said laws of Georgia are also unconstitutional and void, because they impair the obligation of the various contracts formed by and between the aforesaid Cherokee nation and the said United States of America, as above recited: also, that the said laws of Georgia are unconstitutional and void, because they interfere with, and attempt to regulate and control, the intercourse with the said Cherokee nation, which, by the said constitution, belongs exclusively to the Congress of the United States; and because the said laws are repugnant to the statute of the United States, passed on the ---- day of March, 1802, entitled "An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers:" and that, therefore, this Court has no jurisdiction to cause this defendant to make further or other answer to the said bill of indictment, or further to try and punish this defendant for the said supposed offence or offences alleged in the bill of indictment, or any of them: And, therefore, this defendant prays judgment whether he shall be held bound to answer further to said indictment?

GEORGIA, _Gwinnett county_:

Personally appeared in open court, Samuel A. Worcester, and, being sworn, saith, that the several matters and things contained in the above and foregoing plea, are true in substance and in fact.

Sworn to, and subscribed in open court, this 15th September, 1831.

SAMUEL A. WORCESTER.

JOHN G. PARK, _Clerk_. _September Term_, 1831.

Pleas to the jurisdiction, &c. overruled by the court. Arraigned, and pled not guilty. Copy bill, and list of witnesses, waived.

T. H. TRIPPE, _Sol. Gen._

_Jury sworn and empannelled._

1. James H. Gilreath, 2. Benjamin Towers, 3. Joseph Bolton, 4. Thomas Weems, 5. John Moffett, 6. Wade Peavy, 7. John L. Tippens, 8. Thomas Burge, 9. Eli Elkins, 10. Wm. W. Downs, 11. Matthew Brown, 12. Geo. R. Edwards.

_Verdict._

We, the jury, find the defendants guilty.

JAMES H. GILREATH, _Foreman._

_September_ 15_th_, 1831.

_Sentence._

THE STATE, } _Indictment for residing in the_ _vs._ } _Cherokee nation without license:_ B. F. THOMPSON, AND OTHERS. } _Verdict, "Guilty."_

THE STATE, } _vs._ } _Indictment for residing in the_ ELIZUR BUTLER, SAMUEL A. } _Cherokee nation without license:_ WORCESTER, AND OTHERS. } _Verdict, "Guilty."_

The defendants, in both of the above cases, shall be kept in close custody, by the sheriff of this county, until they can be transported to the penitentiary of this State, and the keeper thereof is hereby directed to receive them, and each of them, into his custody, and keep them, and each of them, at hard labor in said penitentiary, for and during the term of four years."

The case of Elizur Butler, Plaintiff in Error, _versus_ the State of Georgia, was brought before the Supreme Court in the same manner.

Both cases came on for argument on the 20th of February, 1832, and they were argued by Mr. Sergeant and Mr. Wirt, for the Plaintiffs in Error. There was no appearance for the State of Georgia.

On the 3d day of March, 1832, Mr. Chief Justice MARSHALL delivered the opinion of the Court.

SAMUEL A. WORCESTER, } Opinion of the Supreme Court _vs._ } of the United States, delivered THE STATE OF GEORGIA. } by Mr. Chief Justice Marshall, } at January Term, 1832.

This cause, in every point of view in which it can be placed, is of the deepest interest.

The defendant is a State, a member of the Union, which has exercised the powers of government over a People who deny its jurisdiction, and are under the protection of the United States.

The plaintiff is a citizen of the State of Vermont, condemned to hard labor for four years in the penitentiary of Georgia, 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, the controlling power of the constitution and laws of the United States, the rights, if they have any, the political existence of a once numerous and powerful People, the personal liberty of a citizen, are all involved in the subject now to be considered.

It behooves this Court, in every case, more especially in this, to examine into its jurisdiction with scrutinizing eyes, before it proceeds to the exercise of a power which is controverted.

The first step in the performance of this duty is the inquiry whether the record is properly before the Court.

It is certified by the clerk of the Court which pronounced the judgment of condemnation under which the plaintiff in error is imprisoned, and is also authenticated by the seal of the Court. It is returned with, and annexed to, a writ of error issued in regular form, the citation being signed by 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 was returnable.

The Judicial act,[1] so far as it prescribes the mode of proceeding, appears to have been literally pursued.

[1] Judicial act, sec. 22, 25, v. 2. pp. 64, 65.

In February, 1797, a rule[2] was made on this subject, in the following words: "It is ordered by the Court, 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 of the record, and of all proceedings in the same, under his hand and the seal of the Court."

[2] 6 Wh. Rules.

This has been done. But the signature of the Judge has not been added to that of the Clerk. The law does not require it. The rule does not require it.

In the case of Martin vs. Hunter's lessee,[3] an exception was taken to the return of the refusal of the State Court to enter a prior judgment of reversal by this Court, because it was not made by the Judge of the State Court to which the writ was directed; but the exception was overruled, and the return was held sufficient. In Buel vs. Van Ness,[4] also a writ of error to a State Court, the record was authenticated in the same manner. No exception was taken to it. These were civil cases. But it has been truly said at the bar, that, in regard to this process, the law makes no distinction between a criminal and civil case. The same return is required in both. If the sanction of the Court could be necessary for the establishment of this position, it has been silently given.

[3] 1st Wh. 304, 361.

[4] 8th Wh. 312.

McCulloch vs. the State of Maryland,[5] was a _qui 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 a Judge. Brown et al. vs. the State of Maryland, was an indictment for a 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.

[5] 4th Wh. 316.

The record, then, according to the Judiciary act, and the rule and the practice of the Court, is regularly before us. The more important inquiry is, does it exhibit a case cognizable by this tribunal?

The indictment charges the plaintiff in error, and others, being white persons, with the offence of "residing within the limits of the Cherokee nation without a licence," and "without having taken the oath to support and defend the constitution and laws of the State of Georgia."

The defendant in the State Court appeared in proper person, and filed the following plea:

"And the said Samuel A. Worcester, in his own proper person, comes and says, that this court ought not to take further cognizance of the action and prosecution aforesaid, because, he says, that, on the 15th day of July, in the year 1831, he was, and still is, a resident in the Cherokee nation; and that the said supposed crime or crimes, and each of them, 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 in the county Gwinnett, or elsewhere within the jurisdiction of this court: And this defendant saith, that he is a citizen of the State of Vermont, one of the United States of America, and that he entered the aforesaid Cherokee nation in the capacity of a duly authorized missionary of the American Board of Commissioners for Foreign Missions, under the authority of the President of the United States, and has not since been required by him to leave it: that he was, at the time of his arrest, engaged in preaching the Gospel to the Cherokee Indians, and in translating the sacred Scriptures into their language, with the permission and approval of the said Cherokee nation, and in accordance with the humane policy of the Government of the United States for the civilization and improvement of the Indians; and that his residence there, for this purpose, is the residence charged in the aforesaid indictment: and this defendant further saith, that this prosecution the State of Georgia ought not to have or maintain, because, he saith, that several treaties have, from time to time, been entered into between the United States and the Cherokee nation of Indians, to wit: at Hopewell, on the 28th day of November, 1785; at Holston, on the 2d day of July, 1791; at Philadelphia, on the 26th day of June, 1794: at Tellico, on the 2d day of October, 1798; at Tellico, on the 24th day of October, 1804; at Tellico, on the 25th day of October, 1805; at Tellico, on the 27th day of October, 1805; at Washington city, on the 7th day of January, 1805; at Washington city, on the 22d day of March, 1816; at the Chickasaw Council House, on the 14th day of September, 1816; at the Cherokee Agency, on the 8th day of July, 1817; and at Washington city, on the 27th day of February, 1819: all which treaties have been duly ratified by the Senate of the United States of America; and, by which treaties, the United States of America acknowledge the said Cherokee nation to be a sovereign nation, authorized to govern themselves, and all persons who have settled within their territory, free from any right of legislative interference by the several States composing the United States of America, in reference to acts done within their own territory; and, by which treaties, the whole of the territory now occupied by the Cherokee nation, on the east of the Mississippi, has been solemnly guarantied to them; all of which treaties are existing treaties at this day, and in full force. By these treaties, and particularly by the treaties of Hopewell and Holston, the aforesaid territory is acknowledged to lie without the jurisdiction of the several States composing the Union of the United States; and, it is thereby specially stipulated, that the citizens of the United States shall not enter the aforesaid territory, even on a visit, without a passport from the governor of a State, or from some one duly authorized thereto, by the President of the United States: all of which will more fully and at large appear, by reference to the aforesaid treaties. And this defendant saith, that the several acts charged in the bill of indictment, were done, or omitted to be done, if at all, within the said territory so recognized as belonging to the said nation, and so, as aforesaid, held by them, under the guaranty of the United States: that, for those acts, the defendant is not amenable to the laws of Georgia, nor to the jurisdiction of the courts of the said State; and that the laws of the State of Georgia, which profess to add the said territory to the several adjacent counties of the said State, and to extend the laws of Georgia over the said territory, and persons inhabiting the same; and, in particular, the act on which this indictment _vs._ this defendant is grounded, to wit: "An act entitled an act to prevent the exercise of assumed and arbitrary power, by all persons, under pretext of authority from the Cherokee Indians, and their laws, and to prevent white persons from residing within that part of the chartered limits of Georgia, occupied by the Cherokee Indians, and to provide a guard for the protection of the gold mines, and to enforce the laws of the State within the aforesaid territory," are repugnant to the aforesaid treaties; which, according to the constitution of the United States, compose a part of the supreme law of the land; and that these laws of Georgia are, therefore, unconstitutional, void, and of no effect; that the said laws of Georgia are also unconstitutional and void, because they impair the obligation of the various contracts formed by and between the aforesaid Cherokee nation and the said United States of America, as above recited: also, that the said laws of Georgia are unconstitutional and void, because they interfere with, and attempt to regulate and control the intercourse with the said Cherokee nation, which, by the said constitution, belongs exclusively to the Congress of the United States; and because the said laws are repugnant to the statute of the United States, passed on the ---- day of March, 1802, entitled "An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers:" and that, therefore, this Court has no jurisdiction to cause this defendant to make further or other answer to the said bill of indictment, or further to try and punish this defendant for the said supposed offence or offences alleged in the bill of indictment, or any of them: And, therefore, this defendant prays judgment whether he shall be held bound to answer further to said indictment."

This plea was overruled by the Court. And the prisoner, being arraigned, pleaded not guilty. The jury found a verdict against him, and the Court sentenced him to hard labor, in the penitentiary, for the term of four years.

By overruling this plea, the Court decided that the matter it contained was not a bar to the action. The plea, therefore, must be examined, for the purpose of determining whether it makes a case which brings the party within the provisions of the 25th section of the "Act to establish the judicial courts of the United States."