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partners. On the dissolution of their partnership Slyth agreed to allow his son one third of the profits of his business until some situation should be found for his son. Slyth continued in possession of the partnership stock and effects, and afterwards entered into partnership with Gyles, carrying into the business the stock of the old firm. A commission of bankruptcy soon after issued against Slyth and his son, under which commission all the joint effects of Slyth and Gyles were taken, to an amount more than sufficient to pay the creditors of that firm. Gyles, who was solvent, having relinquished his claim on the surplus, a question arose whether this surplus was to be considered as the separate property of Slyth, and as such applicable to the payment of his particular creditors, or as the joint property of Slyth and son, and as such distributable among their joint creditors, and it was held that they were the separate property of Slyth. It is true that this case was not a controversy in which the creditors of Slyth and Gyles were endeavoring to charge the son of Slyth as a partner, but it was a controversy between two classes of creditors, those of Slyth on the one side, and those of Slyth and his son on the other. If the son had been considered a partner in the house of Slyth and Gyles, by virtue of his agreement with his father, then the creditors of Slyth and his son would have been preferred. 'It seems hardly conceivable that the chancellor, if he would have considered Slyth's son as a partner in the firm of Slyth and Gyles, in favor of the creditors of that firm, would not also have asserted the partnership in favor of the creditors of Slyth and his son. Part of the opinion of Lord Chancellor Eldon in this case is worth transcribing. After saying that the son continued a dormant partner with his father until the formation of the partnership of Slyth and Gyles, he proceeds,
Now Slyth, the son, was no partner in this partnership : for although Slyth, the father, might be obliged to give one third of his profits to Slyth, the son, under this agreement, yet I take it to have been long since clearly established that a man may become a partner with A where A and B are partners, and yet not be a member of the partnership which existed between A and B. In the case of Sir Charles Raymond, a banker in the city, a Mr. Fletcher agreed with Sir Charles Raymond that he should be interested so far as to receive a share of his profits of the business, and which share he had a right to draw out from the
firm of Raymond and Co. But it was held that he was no partner in that partnership, had no demand against it, had no account in it, and that he must be satisfied with a share of the profits arising, and given to Sir Charles Raymond.'
In Scotland the precise point under consideration appears to have been decided. Mr. Bell
The delectus personæ, so essential to partnership, prevents the introduction of a new partner by contract with a single partner, or any number of partners less than the whole. But there may be a sub-contract, by which a stranger may be admitted to divide with any of the partners his share of the profits. The other partners are not bound to take notice of this sub-contract: nor is there any responsibility attached to it, by which a stranger, as sharing in the profits of the concern, becomes liable for the debts of the partnership.' 2 Bell's Com. 636. He cites 3 Ersk. iii. s. 21; Fairholm v. Majoribanks, 23 Jan. 1725, Edgar, 155.
ART. V.-THE OPINIONS IN THE CHEROKEE CASE.
The Case of the Cherokee Nation against the State of Geor
gia, argued and determined at the Supreme Court of the United States, January Term, 1831. By R. PETERS, Counsellor at Law. Philadelphia.
[Our correspondents will understand that we shall be willing to publish arguments on the different sides of the Cherokee case, provided they are limited to the discussion of constitutional and legal questions.] Some remarks in the last North American Review, on the opinion of Chief Justice Marshall, in the Cherokee case, are entitled to notice, as well from the subject, as the remarks themselves.
It is certainly much to be regretted,' observes the reviewer, that a case of this importance should have been decided upon any other principle than that of doing substantial justice between the parties. The regret, then, is either, that the question of jurisdiction existed, or that, to do substantial justice, it was not eluded by the court, who, by eluding it, would have violated their oath of office. The reviewer is not to be presumed to regret that they did not assume a power not given by the constitution ; and we must, therefore, understand him, merely to intimate a wish that it had been so worded as to admit of no doubt whether they had jurisdiction of such a case. As the constitution is, in fact, framed, however, this question did very obviously present itself, and, accordingly was anticipated by the counsel for the Indians. "The Cherokees approach, said Mr. Sergeant, “as a foreign state. The proposition asserted in their behalf is that they are a foreign state. Let us,' said Mr. Wirt, ' resolve the question into its elements, and inquire, 1. Whether the Cherokee nation is a state. 2. Whether it be a foreign state, in the sense of the constitution. Now it is admitted, that unless they be, this court cannot take original jurisdiction of the subject.'
• We confess, continue the reviewers, that we were not prepared for the precise objection that was taken by the court.' But if they were not, one would think that they ought to have been,“ prepared for the objection, if not for the decision. An Indian tribe, for the first time since the adoption of the constitution, was to be party to a controversy at the highest court under that constitution. The judicial power,' says the constitution that creates and controls it, 'shall extend to controversies between a state and foreign states. This controversy was between Georgia, a state, and the Cherokees. Unless these are a foreign state, the judicial power extends not to the controversy. In their bill they call themselves a foreign state. Either this character is theirs, or the obligation not to hear them is peremptory upon the court. "This,' (the precise objection in question) says Mr. Wirt, “is, we are sensible, the very knot of the controversy.'
"The Cherokees are admitted, in the most explicit terms, to be a state. How then can it be denied that they are a foreign state? The epithet, foreign, means nothing more in reference to states, than other, in reference to individuals. This last sentence is a mere assertion, which, as President Edwards has observed, of the like, may be adequately answered by a counter assertion. It assumes, and of course begs, the whole question, which is in truth nothing more than what means the epithet foreign. That “a state, which is not the United States or one of them, is necessarily, and ex vi termini, a foreign state,' is a second petitio principii, in immediate connexion with the first.
That a state, which is not of one description, is necessarily of another, is clear; but it does not follow that it is a foreign state, unless foreign and another have invariably the same meaning with reference to states or individuals : As to either, it seems to me, foreign has a sense opposed to native or domestic; so that one of our Indians is not a foreigner, nor his nation, a foreign
"There is,' says the Review, “no possible middle term between these two categories; the court in substance admits this :' How admits ? 'In the general,' says the Chief Justice,
nations not owing a common allegiance, are foreign to each other. The term foreign is, with strict propriety, applicable by either to the other.' Do these words, (none other are adduced) admit in substance no middle term to be possible, between the two categories ? And that the epithet foreign means nothing more in reference to states, than other in reference to individuals? Do they not negative these positions? Do not the words in the general, deny that to be true universally, which they admit to be true generally; and which they must in substance admit to be true universally, to come up, in substance, to the admission pretended ?. These questions, the next line of the Review answers, for it says, 'the court do not appear to have felt, that the term foreign is not only applicable with strict propriety, by either of two nations not owing a common allegiance to the other ; but that this is the only idea implied in the term. They felt, that it was only generally applicable, and no more.
But how is the Reviewer's representation consistent with itself? In one line the court are represented as in substance admitting positions identical in sense with what in the next they are represented as not appearing to have felt. What is said of their feelings, negatives what is said of their admissions; and what is said of their admissions, negatives what is said of their feelings. The inference is correct as to what they do not appear to have felt; and incorrect as to what they in substance admit. Chief Justice Marshall feels not the force of his words, or admissions and feelings apparent in this opinion, coincide.
"It is admitted, then, by the court, the Reviewer repeats, that the Cherokees are a state ; and that “in the general” they are a foreign state.' Now no such admission in the general is made as to the Cherokees, for these are among the particulars meant to be excluded or exempted. This phrase, in the general,' is plainly introductory to the Indians, as exceptions in particular from a rule or remark affirmed, in the general,' not of the Cherokees, but only 'of nations not owing a common allegiance.'
In the opinion, the general language is cautiously qualified by words before and after it. "The condition of the Indians in relation to the United States, is perhaps unlike that of any other two people in existence. In the general, nations not owing a common allegiance, are foreign to each other. The term foreign nation, is, with strict propriety, applicable by either to the other. But the relation of the Indians to the United States, is marked by peculiar and cardinal distinctions, which exist no where else.
To paraphrase at the risk of obscuring the relation of no other two bodies politic in existence is to one another like that of the Indians to the United States. Generally, nations not owing a common allegiance, are foreign to each other. The term foreign nation is properly applied by either to the other. But the relation of the Indians to the United States, though one of not owing a common allegiance, is yet marked by distinctions so peculiar and cardinal, as to make the Indians an exception to the rule, that nations not owing a common allegiance foreign to each other.
These distinctions are : Indians have one home or domicil with citizens of the United States, and are co-natives of the same soil. 'Indian territory is admitted to be part of the United States, so considered in all our maps, geographical treatises, histories and laws; in all our intercourse with foreign nations, in our commercial regulations, in any attempt at intercourse between Indians and foreign nations, they are considered within the jurisdictional limits of the United States. They acknowledge themselves, in their treaties, to be under the protection of the United States; that the United States have the sole and exclusive right of regulating the trade with them, and managing all their affairs;' and the Cherokees were allowed to send a deputy to Congress. They have a right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted, whether those tribes which reside within the acknowledged boundaries of the