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1. The supreme court has jurisdiction of the case, under the second section of the third article of the constitution of the United States, limited afterwards by the eleventh amendment. The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority, &c. to controversies between two or more states, between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof, and foreign states, citizens, or subjects.' 'In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as Congress shall make.' The Cherokees, one of the parties, being a foreign state, and the other party being a state, gives jurisdiction to the courts of the United States, and one of the parties being a state, the Supreme Court has original jurisdiction.

Mr. Wirt sums up his argument, to show that the Cherokees are a foreign state, as follows:

'1. Is allegiance the test ? Then are they a foreign state ; for they owe no allegiance to any other government than their own.

2. Is recognition by treaty the test? Then are they a foreign state ; for they have been so recognised by the government of the United States, from the treaty of Hopewell in 1785 down to the present day.

'3. Is the right to hold the exclusive possession of their territory, and to give the supreme law upon it, the test? Then are they a foreign state ; for every branch of the government of the United States has concurred in according to them these rights.

• 4. Is the right to make legitimate war upon the United States the test? Then are they a foreign state ; for all our treaties with them, and all our practice under those treaties, admit this right as unquestionable.

15. Is individual alienage the test? Then are they a foreign state ; for all our treaties, laws, and constitution, admit that they are not citizens of the United States, and, if not citizens, they are necessarily aliens, there being no middle class recognised by our political institutions.

6. Is the language and reason of this constitutional provision the test? Then are they a foreign state ; for by the language they

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are a foreign state, if foreign to our confederacy: and by the reason they are a foreign state ; since standing upon a national compact with the United States, they have a right to the jurisdiction of the national court in the exposition of that contract.

7. Are civilization, religion, agriculture, and a capacity for self-government essential to the consummation of their character as a foreign state? Then are they a foreign state ; for according to the allegations of the bill they are at least upon a par with their white neighbors in these respects, whose political existence as a state is not to be questioned.

* Thus they unite in themselves every test which, according to the law of nations, is deemed essential to the constitution of a foreign state. If we look to the specific clause of the constitution under question, and construe it either by its letter or reason, we are conducted to the same conclusion that they are a foreign state. If we regard the test which has been heretofore presented by this court itself, a recognition by our own government ; this too concurs in repeated and solemn acts, in affixing the same character to them, that of a foreign state.'

A sufficient case was presented for the exercise of judicial power. The rights of the Cherokees, which were secured to them by treaties with the United States, were the right of self-government in their own territories, and the right of property against all interference. The wrongs of which they complained were the violation of these rights to the extent of their total destruction and extinction.

3. The case requires the specific remedy of an injunction.

The court decided that they had no jurisdiction of the case, and therefore denied the motion for an injunction.

The points in which a majority of the court agreed according to the opinion delivered by Chief Justice Marshall, are the following:

1. The Cherokees constitute a state, that is, a distinct political society.

2. But they are not a foreign state within the meaning of the constitution; and therefore cannot maintain an action in the courts of the United States.

This last perhaps is the only point which can be considered as decided by the court. The rights of the Cherokees, in regard to Georgia and the United States, are not questioned in any part of this opinion. The Chief Justice, however, intimates that the VOL. VI.-NO. XI.


court, even if it had jurisdiction of the parties, could not give the relief claimed in the bill.

* A serious additional objection exists to the jurisdiction of the court. Is the matter of the bill the proper subject for judicial inquiry and decision ? It seeks to restrain a state from the forcible exercise of legislative power over a neighboring people, asserting their independence; their right to which the state denies. On several of the matters alleged in the bill, for example on the laws making it criminal to exercise the usual powers of self-government in their own country by the Cherokee nation, this court cannot interpose; at least in the form in which those matters are presented.

“That part of the bill which respects the land occupied by the Indians, and prays the aid of the court to protect their possession, may be more doubtful. The mere question of right might perhaps be decided by this court in a proper case with proper parties. But the court is asked to do more than to decide on the title. The bill requires us to control the legislature of Georgia, and to restrain the exertion of its physical force. The propriety of such an interposition by the court may well be questioned. It savors too much of the exercise of political power to be within the proper province of the judicial department. But the opinion on the point respecting parties makes it unnecessary to decide this question.

“If it be true that the Cherokee nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future.'

Mr. Justice Johnson, who coincided with the majority of the court, gave a separate opinion. He doubted whether the Cherokees could be properly considered a state, but was clear that they were not a foreign state. He also thought that the case was of such a character that the court could not interfere even if it had jurisdiction of the parties.

Mr. Justice Baldwin also delivered an opinion coinciding in its conclusion with that of the majority of the court. He maintained that the Cherokees were not a sovereign state, and therefore that there was no plaintiff in the case.

Mr. Justice Thompson delivered an opinion dissenting from the majority of the court, in which opinion Mr. Justice Story concurred. The following are his conclusions in his own language.

Upon the whole, I am of opinion, '1. That the Cherokees compose a foreign state within the sense and meaning of the constitution, and constitute a competent party to maintain a suit against the state of Georgia.

2. That the bill presents a case for judicial consideration, arising under the laws of the United States, and treaties made under their authority with the Cherokee nation, and which laws and treaties have been, and are threatened to be still further violated by the laws of the state of Georgia referred to in this opinion.

3. That an injunction is a fit and proper writ to be issued, to prevent the further execution of such laws, and ought therefore to be awarded.

And I am authorized by my brother Story to say, that he concurs with me in this opinion.'

Crabb's History of English Law. An American edition of this work has recently been published at Burlington, Vermont. The editor has added in the notes, a translation, into English, of all the Latin and law-French passages. In this translation a lawyer is struck with the novelty of a note explaining tenants in capite to mean "tenants in chief (i. e. holding directly from the king);' and non compos mentis, 'of nonsane memory.' These phrases, and many others that are translated in these notes, seem to be too familiar to every one who would be likely to read a history of English Law, to need explanation. But in passages of greater length, especially those in law-French, the reader not versed in the varieties of blackletter, is obliged to the editor for supplying him with the sense in English, which would often hardly reward him for the trouble of spelling it out in the quoted language of the original. And the other translations of the more familiar passages do not occupy any considerable part of the pages, and so do not make any material ground of objection to the edition ; to such readers as have no occasion to resort to them, and to readers not at all skilled in Latin or law-French, if any such should take up the volume, all the notes will be convenient.

The editor says he has added some references to those of the author, but those are, we presume, not numerous.

The only other addition is a table of abbreviations used in the references to English law books.

The American editor expresses a wish that Mr. Crabb ‘had been somewhat less negligent in his style;' but we confess that we have not observed any instances of negligence worthy of notice. If words are used in their proper meaning, and the sense is plainly expressed, this seems to be all that is requisite in a law book as far as mere style is concerned. If measured pauses, and wellrounded periods, as in Blackstone's Commentaries, can be added, it is some recommendation of an elementary treatise, but in law

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books generally, the gratification of the reader's ear, is a matter of slight importance.

The second edition of Reeves's History of the law was published in 1787, in which year his preface is dated. The first edition had been published in separate volumes successively. In a note to the second edition, under the marginal title alienation, he answers some objections which had been made to his account of the feudal law, as not sufficiently full; but which he vindicates on the ground that it occupies a just proportion of the work, according to the importance of the subject. In this note he makes a remark which is perhaps too characteristic of English jurisprudence. After saying that he had given a history of feuds as they existed in England, and further than this they did not come within his plan, he says, 'Those who study the history of the English law must tread in the footsteps of the old English lawyers; but these lead not to the Books of Feuds, much less to Craig or Corvinus. The lawyers of this country, like the people, impatient of foreign innovations, soon moulded the institutions of Normandy into a new shape, and formed a system of feuds of their own. and custoni of the country became the guide of the courts, who have invariably rejected with disdain all arguments from the practice of other countries. This is too much the spirit of the English courts, (except the admiralty,) and of the English bar, and it is one of the causes why the country has now so great a business of reform on its hands.

Mr. Crabb has not been so much afraid of going out of 'the footsteps of the old English lawyers' upon this subject, but has concisely mentioned the other works on the feudal law, besides those of England.

The general plan of his work is thus stated in his preface. "To give form and consistency to the numerous historical notices which lie scattered in the works of others, to present in a regular series all the most important facts which serve to show the state of the English Law at different periods, and to point out the various causes and consequences of the successive changes as they arose, is the object of this work. Others have, likewise, had a design in some respects similar; but have not put it into execution in such manner as to preclude all farther improvement. The works of Lord Coke abound with historical matter respecting English law; but as he was an expounder of the law, and history was a subordinate consideration, he furnishes nothing like a regular narrative on the subject. The same remark applies to Mr. Justice Black

1 Ch. 2, vol. 1, p. 44.

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