| 31
U.S. 515 (Mem) 6 Pet. 515,
8 L.Ed. 483 (Cite
as: 31 U.S. 515) Supreme
Court of the United States. SAMUEL
A. WORCESTER, PLAINTIFF IN ERROR v. THE
STATE OF GEORGIA. January
Term, 1832 THIS
was a writ of error to the superior court for the county of Gwinnett, in the state
of Georgia. On
the 22d December 1830, the legislature of the state of Georgia passed the following
act: 'An
act of 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. 'Be
it enacted by the senate and house of representatives of the state of Georgia
in general assembly met, and it is hereby enacted by the authority of the same,
that, after the 1st day of February 1831, it shall not be lawful for any person
or persons, under colour or pretence of authority from said Cherokee tribe, or
as headmen, chiefs or warriors of said tribe, to cause or procure by any means
the assembling of any council or other pretended legislative body of the said
Indians or others living among them, for the purpose of legislating (or for any
other purpose whatever). And persons offending against the provisions of this
section shall guilty of a high misdemeanour, and subject to indictment therefor,
and, on conviction, shall be punished by confinement at hard labour in the penitentiary
for the space of four years. 'Sec.
2. And be it further enacted by the authority aforesaid, that, after the time
aforesaid, it shall not be lawful for any person or persons, under pretext of
authority from the Cherokee tribe, or as representatives, chiefs, headmen or warriors
of said tribe, to meet or assemble as a council, assembly, *522 convention,
or in any other capacity, for the purpose of making laws, orders or regulations
for said tribe. And all persons offending against the provisions of this section,
shall be guilty of a high misdemeanour, and subject to an indictment, and on conviction
thereof, shall undergo an imprisonment in the penitentiary at hard labour for
the space of four years. 'Sec.
3. And be it further enacted by the authority aforesaid, that, after the time
aforesaid, it shall not be lawful for any person or persons, under colour or by
authority of the Cherokee tribe, or any of its laws or regulations, to hold any
court or tribunal whatever, for the purpose of hearing and determining causes,
either civil or criminal; or to give any judgment in such causes, or to issue,
or cause to issue, any process against the person or property of any of said tribe.
And all persons offending against the provisions of this section shall be guilty
of a high misdemeanour, and subject to indictment, and, on conviction thereof,
shall be imprisoned in the penitentiary at hard labour for the space of four years. 'Sec.
4. And be it further enacted by the authority aforesaid, that, after the time
aforesaid, it shall not be lawful for any person or persons, as a ministerial
officer, or in any other capacity, to execute any precept, command or process
issued by any court or tribunal in the Cherokee tribe, on the persons or property
of any of said tribe. And all persons offending against the provisions of this
section, shall be guilty of a trespass, and subject to indictment, and, on conviction
thereof, shall be punished by fine and imprisonment in the jail or in the penitentiary,
not longer than four years, at the discretion of the court. 'Sec.
5. And be it further enacted by the authority aforesaid, that, after the time
aforesaid, it shall not be lawful for any person or persons to confiscate, or
attempt to confiscate, or otherwise to cause a forfeiture of the property or estate
of any Indian of said tribe, in consequence of his enrolling himself and family
for emigration, or offering to enrol for emigration, or any other act of said
Indian, in furtherance of his intention to emigrate. And persons offending against
the provisions of this section shall be guilty of high misdemeanour, and, on conviction,
shall undergo an imprisonment in the penitentiary at hard labour for the space
of four years.*523 'Sec.
6. And be it further enacted by the authority aforesaid, that none of the provisions
of this act shall be so construed as to prevent said tribe, its headmen, chiefs
or other representatives, from meeting any agent or commissioner, on the part
of this state or the United States, for any purpose whatever. 'Sec.
7. And be it further enacted by the authority aforesaid, that all white persons
residing within the limits of the Cherokee nation, on the 1st day of March next,
or at any time thereafter, without a license or permit from his excellency the
governor, or from such agent as his excellency the governor shall authorise to
grant such permit or license, and who shall not have taken the oath hereinafter
required, shall be guilty of a high misdemeanour, and, upon conviction thereof,
shall be punished by confinement to the penitentiary at hard labour for a term
not less than four years; provided, that the provisions of this section shall
not be so construed as to extend to any authorised agent or agents of the government
of the United States or of this state, or to any person or persons who may rent
any of those improvements which have been abandoned by Indians who have emigrated
west of the Mississippi; provided, nothing contained in this section shall be
so construed as to extend to white females, and all male children under twenty-one
years of age. 'Sec.
8. And be it further enacted by the authority aforesaid, that all white persons,
citizens of the state of Georgia, who have procured a license in writing from
his excellency the governor, or from such agent as his excellency the governor
shall authorise to grant such permit or license, to reside within the limits of
the Cherokee nation, and who have taken the following oath, viz. 'I, A. B., do
solemnly swear (or affirm, as the case may be) that I will support and defend
the constitution and laws of the state of Georgia, and uprightly demean myself
as a citizen thereof, so help me God,' shall be, and the same are hereby declared,
exempt and free from the operation of the seventh section of this act. 'Sec.
9. And be it further enacted, that his excellency the governor be, and he is hereby,
authorized to grant licenses to reside within the limits of the Cherokee nation,
according to the provisions of the eighth section of this act. 'Sec.
10. And be it further enacted by the authority aforesaid, *524 that no
person shall collect or claim any toll from any person, for passing any turnpike
gate or toll bridge, by authority of any act or law of the Cherokee tribe, or
any chief or headman or men of the same. 'Sec.
11. And be it further enacted by the authority aforesaid, that his excellency
the governor be, and he is hereby, empowered, should he deem it necessary, either
for the protection of the mines, or for the enforcement of the laws of force within
the Cherokee nation, to raise and organize a guard, to be employed on foot, or
mounted, as occasion may require, which shall not consist of more than sixty persons,
which guard shall be under the command of the commissioner or agent appointed
by the governor, to protect the mines, with power to dismiss from the service
any member of said guard, on paying the wages due for services rendered, for disorderly
conduct, and make appointments to fill the vacancies occasioned by such dismissal. 'Sec.
12. And be it further enacted by the authority aforesaid, that each person who
may belong to said guard, shall receiver for his compensation at the rate of fifteen
dollars per month when on foot, and at the rate of twenty dollars per month when
mounted, for every month that such person is engaged in actual service; and, in
the event, that the commissioner or agent, herein referred to, should die, resign,
or fail to perform the duties herein required of him, his excellency the governor
is hereby authorised and required to appoint, in his stead, some other fit and
proper person to the command of said guard; and the commissioner or agent, having
the command of the guard aforesaid, for the better discipline thereof, shall appoint
three sergeants, who shall receive at the rate of twenty dollars per month while
serving on foot, and twenty-five dollars per month, when mounted, as compensation
whilst in actual service. 'Sec.
13. And be it further enacted by the authority aforesaid, that the said guard,
or any member of them, shall be, and they are hereby, authorised and empowered
to arrest any person legally charged with, or detected in, a violation of the
laws of this state, and to convey, as soon as practicable, the person so arrested
before a justice of the peace, judge of the superior or justice of inferior court
of this state, to be dealt *525 with according to law; and the pay and
support of said guard be provided out of the fund already appropriated for the
protection of the gold mines.' The
legislature of Georgia, on the 19th December 1829, passed the following act: 'An
act to add the territory lying within the chartered limits of Georgia, and now
in the occupancy of the Cherokee Indians, to the counties of Carroll, De Kalb,
Gwinnett, Hall, and Habersham, and to extend the laws of this state over the same,
and to annul all laws and ordinances made by the Cherokee nation of Indians, and
to provide for the compensation of officers serving legal process in said territory,
and to regulate the testimony of Indians, and to repeal the ninth section of the
act of 1828 upon this subject. 'Sec.
1. Be it enacted by the senate and house of representatives of the state of Georgia
in general assembly met, and it is hereby enacted by the authority of the same,
that from and after the passing of this act, all that part of the unlocated territory
within the limits of this state, and which lies between the Alabama line and the
old path leading from the Buzzard Roost on the Chattahoochee, to Sally Hughes's,
on the Hightower river; thence to Thomas Pelet's, on the old federal road; thence
with said road to the Alabama line be, and the same is hereby added to, and shall
become a part of, the county of Carroll. 'Sec.
2. And be it further enacted, that all that part of said territory lying and being
north of the last mentioned line, and south of the road running from Charles Gait's
ferry, on the Chattahoochee river, to Dick Roe's, to where it intersects with
the path aforesaid, be, and the same is hereby added to, and shall become a part
of, the county of De Kalb. 'Sec.
3. And be it further enacted, that all that part of the said territory lying north
of the last mentioned line, and south of a line commencing at the mouth of Baldridge's
creek; thence up said creek to its source; from thence to where the federal road
crosses the Hightower; thence with said road to the Tennessee line, be, and the
same is hereby added to, and shall become part of, the county of Gwinnett. 'Sec.
4. And be it further enacted, that all that part of the said territory lying north
of said last mentioned line, and south *526 of a line to commence on the
Chestatee river, at the mouth of Yoholo creek; thence up said creek to the top
of the Blue ridge; thence to the head waters of Notley river; thence down said
river to the boundary line of Georgia, be, and the same is hereby added to, and
shall become a part of, the county of Hall. 'Sec.
5. And be it further enacted, that all that part of said territory lying north
of said last mentioned line, within the limits of this state, be, and the same
is hereby added to, and shall become a part of, the county of Habersham. 'Sec.
6. And be it further enacted, that all the laws, both civil and criminal, of this
state, be, and the same are hereby extended over said portions of territory, respectively;
and all persons whatever, residing within the same, shall, after the 1st day of
June next, be subject and liable to the operation of said laws, in the same manner
as other citizens of this state, or the citizens of said counties, respectively;
and all writs and processes whatever, issued by the courts or officers of said
courts, shall extend over, and operate on, the portions of territory hereby added
to the same, respectively. 'Sec.
7. And be it further enacted, that after the 1st day of June next, all laws, ordinances,
orders and regulations, of any kind whatever, made, passed or enacted, by the
Cherokee Indians, either in general council or in any other way whatever, or by
any authority whatever of said tribe, be, and the same are hereby declared to
be, null and void, and of no effect, as if the same had never existed; and in
all cases of indictment or civil suits, it shall not be lawful for the defendant
to justify under any of said laws, ordinances, orders or regulations; nor shall
the courts of this state permit the same to be given in evidence on the trial
of any suit whatever. 'Sec.
8. And be it further enacted, that it shall not be lawful for any person or body
of persons, by arbitrary power or by virtue of any pretended rule, ordinance,
law or custom of said Cherokee nation, to prevent by threats, menaces or other
means, or endeavour to prevent, any Indian of said nation, residing within the
chartered limits of this state, from enrolling as an emigrant, or actually emigrating
or removing from said nation; nor shall it be lawful for any person or body of
persons, by arbitrary power or by virtue of any pretended rule, *527 ordinance,
law or custom of said nation, to punish, in any manner, or to molest either the
person or property, or to abridge the rights or privileges of any Indian, for
enrolling his or her name as an emigrant, or for emigrating or intending to emigrate,
from said nation. 'Sec.
9. And be it further enacted, that any person or body of persons offending against
the provisions of the foregoing section, shall be guilty of a high misdemeanour,
subject to indictment, and on conviction shall be punished by confinement in the
common jail of any county of this state, or by confinement at hard labour in the
penitentiary, for a term not exceeding four years, at the discretion of the court. 'Sec.
10. And be it further enacted, that it shall not be lawful for any person or body
of persons, by arbitrary power, or under colour of any pretended rule, ordinance,
law or custom of said nation, to prevent or offer to prevent, or deter any Indian
headman, chief or warrior of said nation, residing within the chartered limits
of this state, from selling or ceding to the United States, for the use of Georgia,
the whole or any part of said territory, or to prevent or offer to prevent, any
Indian, headman, chief or warrior of said nation, residing as aforesaid, from
meeting in council or treaty any commissioner or commissioners on the part of
the United States, for any purpose whatever. 'Sec.
11. And be it further enacted, that any person or body of persons offending against
the provisions of the foregoing sections, shall be guilty of a high misdemeanour,
subject to indictment, and on conviction shall be confined at hard labour in the
penitentiary for not less than four nor longer than six years, at the discretion
of the court. 'Sec.
12. And be it further enacted, that it shall not be lawful for any person or body
of persons, by arbitrary force, or under colour of any pretended rules, ordinances,
law or custom of said nation, to take the life of any Indian residing as aforesaid,
for enlisting as an emigrant; attempting to emigrate; ceding, or attempting to
cede, as aforesaid, the whole or any part of the said territory; or meeting or
attempting to meet, in treaty or in council, as aforesaid, any commissioner or
commissioners aforesaid; and any person or body of persons offending against the
provisions of this section, shall be guilty of *528 murder, subject to
indictment, and, on conviction, shall suffer death by hanging. 'Sec.
13. And be it further enacted, that, should any of the foregoing offences be committed
under colour of any pretended rules, ordinances, custom or law of said nation,
all persons acting therein, either as individuals or as pretended executive, ministerial
or judicial officers, shall be deemed and considered as principals, and subject
to the pains and penalties hereinbefore described. 'Sec.
14. And be it further enacted, that for all demands which may come within the
jurisdiction of a magistrate's court, suit may be brought for the same in the
nearest district of the county to which the territory is hereby annexed; and all
officers serving any legal process on any person living on any portion of the
territory herein named, shall be entitled to recover the sum of five cents for
every mile he may ride to serve the same, after crossing the present limits of
the said counties, in addition to the fees already allowed by law; and in case
any of the said officers should be resisted in the execution of any legal process
issued by any court or magistrate, justice of the inferior court, or judge of
the superior court of any of said counties, he is hereby authorised to call out
a sufficient number of the militia of said counties to aid and protect him in
the execution of this duty. 'Sec.
15. And be it further enacted, that no Indian or descendant of any Indian, residing
within the Creek or Cherokee nations of Indians, shall be deemed a competent witness
in any court of this state to which a white person may be a party, except such
white person resides within the said nation.' In
September 1831, the grand jurors for the county of Gwinnett in the state of Georgia,
presented to the superior court of the county the following indictment: 'Georgia,
Gwinnett county:--The grand jurors, sworn, chosen and selected for the county
of Gwinnett, 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 license.' For
that the said Elizur Butler, Samuel A. Worcester, *529 James Trott, Samuel
Mays, Surry Eaton, Austin Copeland and Edward D. Losure, white persons, as aforesaid,
on the 15th day of July 1831, 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 license or permit from his excellency the governor of said state, or
from any agent authorised by his excellency the governor aforesaid to grant such
permit or license, 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.' To
this indictment, the plaintiff in error pleaded specially, as follows: '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 1931, 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 authorised 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 *530 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, authorised 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 authorised 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 guarantee 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, *531
and persons inhabiting the same; and, in particular, the act on which this indictment
against 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 ___ 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 jurisdiction of the superior court of
the county of Gwinnett was sustained by the judgment of the court. The
defendant was then arraigned, and pleaded 'not guilty:' and the case came on for
trial on the 15th of September 1831, when the jury found the defendants in the
indictment guilty. On the same day the court pronounced sentence on the parties
so convicted, as follows:*532 'The
State v. B. F. Thompson and others. Indictment for residing in the Cherokee nation
without license. Verdict, Guilty.' 'The
State v. Elizur Butler, Samuel A. Worcester and others. Indictment for residing
in the Cherokee nation without license. 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 labour in said
penitentiary, for and during the term of four years.' A
writ of error was issued on the application of the plaintiff in error, on the
27th of October 1831, which, with the following proceedings thereon, was returned
to this court. 'United
States of America, ss.--The president of the United States to the honourable the
judges of the superior court for the county of Gwinnett, in the state of Georgia,
greeting: 'Because
in the record and proceedings, as also in the rendition of the judgment of a plea
which is in the said superior court, for the county of Gwinnett, before you, or
some of you, between the state of Georgia, plaintiff, and Samuel A. Worcester,
defendant, on an indictment, being the highest court of law in said state in which
a decision could be had in said suit, a manifest error hath happened, to the great
damage of the said Samuel A. Worcester, as by his complaint appears. We being
willing that error, if any hath been, should be duly corrected, and full and speedy
justice done to the parties aforesaid in this behalf, do command you, if judgment
be therein given, that then under your seal distinctly and openly, you send the
record and proceedings aforesaid, with all things concerning the same, to the
supreme court of the United States, together with this writ, so that you have
the same at Washington on the second Monday of January next, in the said supreme
court, to be then and there held; that the record and proceedings aforesaid being
inspected, the said supreme court may cause further to be done therein, to correct
that error, what of right, and according to the laws and custom of the United
States, should be done.*533 'Witness,
the honourable John Marshall, chief justice of the said supreme court, the first
Monday of August in the year of our Lord one thousand eight hundred and thirty-one. WM.
THOS. CARROLL, Clerk
of the Supreme Court of the United States. 'Allowed
by HENRY BALDWIN. 'United
States of America to the state of Georgia, greeting: 'You
are hereby cited and admonished to be, and appear at a supreme court of the United
States, to be holden at Washington, on the second Monday of January next, pursuant
to a writ of error filed in the clerk's office of the superior court for the county
of Gwinnett, in the state of Georgia, wherein Samuel A. Worcester is plaintiff
in error, and the state of Georgia is defendant in error, to show cause, if any
there be, why judgment rendered against the said Samuel A. Worcester, as in the
said writ of error mentioned, should not be corrected, and why speedy justice
should not be done to the parties in that behalf. 'Witness,
the honourable Henry Baldwin, one of the justices of the supreme court of the
United States, this 27th day of October, in the year of our Lord one thousand
eight hundred and thirty-one. HENRY
BALDWIN. 'State
of Georgia, county of Gwinnett, sct.--On this 26th day of November, in the year
of our Lord eighteen hundred and thirty-one, William Potter personally appeared
before the subscriber, John Mills, a justice of the peace in and for said county,
and being duly sworn on the holy evangelists of Almighty God, deposeth and saith,
that on the 24th day of November instant, he delivered a true copy of the within
citation to his excellency, Wilson Lumpkin, governor of the state of Georgia,
and another true copy thereof he delivered, on the 22d day of November, instant,
to Charles J. Jenkins, Esq. attorney-general of the state aforesaid, showing to
the said governor and attorney-general, respectively, at the times of delivery
herein stated, the within citation. WM.
POTTER. 'Sworn
to and subscribed before me, the day and year above written. JOHN MILLS, J. P.' This
writ of error was returned to the supreme court with *534 copies of all
the proceedings in the supreme court of the county of Gwinnett, as stated, and
accompanied with certificates of the clerk of that court in the following terms: 'Georgia,
Gwinnett county. I, John G. Park, clerk of the superior court of the county of
Gwinnett, and state aforesaid, do certify that the annexed and foregoing is a
full and complete exemplification of the proceedings and judgments had in said
court against Samuel A. Worcester, one of the defendants in the case therein mentioned,
as they remain, of record, in the said superior court. 'Given
under my hand, and seal of the court, this 28th day of November 1831. JOHN
G. PARK, Clerk. 'I
also certify, that the original bond, of which a copy of annexed (the bond was
in the usual form), and also a copy of the annexed writ of error, were duly deposited
and filed in the clerk's office of said court, on the 10th day of November in
the year of our Lord eighteen hundred and thirty-one. 'Given
under my hand and seal aforesaid, the day and date above written. JOHN
G. PARK, Clerk.' The
case of Elizur Butler, plaintiff in error v. The State of Georgia, was brought
before the supreme court in the same manner. West
Headnotes Commerce
k82 83k82 (Formerly
83k48) Act
Ga. Dec. 22, 1830, to prevent the exercise of assumed and arbitrary power by persons
under pretext of authority from the Cherokee Indians, and providing for imprisonment
of persons who should reside among such Indians within the Cherokee Nation without
first obtaining authority to do so from the governor of the state, is in violation
of he constitutional provision granting to the United States the exclusive power
to regulate intercourse with foreign nations. International
Law k6 221k6 The
nation making a discovery of land has the sole right of acquiring the soil and
making settlements on it. International
Law k6 221k6 Discovery
of North American continent gave title to government by whose subject or by whose
authority discovery was made against all other European governments which title
might be consummated by possession. International
Law k6 221k6 The
right in land acquired by a nation as incident of discovery gave exclusive right
to purchase such lands as natives were willing to sell. International
Law k8 221k8 Tributary
and feudatory states do not thereby cease to be sovereign and independent so long
as self-government and sovereign and independent authority are left in the administration
of the state. Appeal
and Error k605 30k605 The
same return of writ of error is required in civil and criminal cases. Appeal
and Error k612(2) 30k612(2) Under
Judiciary Act §§ 22, 25, 1 U.S.Stat. 84-85, 22 U.S.C.A. § 862 et seq., and court
rule that clerk of court to which writ of error shall be directed may make return
by transmitting true copy of record under his hand and seal of the court, the
signature of the judge is not required to be added to that of the clerk. Courts
k8 106k8 The
extra-territorial powers of every legislature is limited in its action to its
own citizens or subjects. Federal
Courts k445 170Bk445 (Formerly
106k380) As
respects jurisdiction of the Supreme Court, a party is not less interested in
operation of unconstitutional law which deprives him of liberties than if it affects
his property. Courts
k394(1) 106k394(1)
k. The
decision of a state court of last resort in a prosecution under a statute of that
state for residing within the territory of an Indian nation in that state, contrary
to law, overruling a plea that defendant entered such country with the permission
of the Indian nation pursuant to a treaty between it and the United States, by
which treaty the United States acknowledged such Indian nation to be a sovereign
nation, and that the statute of the state prohibiting his residing therein was
repugnant to such treaty, is a decision drawing in question the validity of a
treaty of the United States, and also the validity of a state statute, because
if its alleged repugnancy to the treaties and laws of the United States, and is
in favor of the validity of such state statute, within Judiciary Act, § 25, 28
U.S.C.A. § 344, giving the supreme court of the United States jurisdiction to
review the decisions of state courts of last resort in such cases. Courts
k394(3) 106k394(3)
k. The
United States supreme court has jurisdiction to review judgment of state court
depriving person of property pursuant to state statute which violates federal
constitution and laws. Indians
k2 209k2 The
term "nation" as applied to Indians means the people distinct from others. Indians
k2 209k2 The
Act of 1819 for promoting humane design of civilizing neighboring Indians contemplated
preservation of Indian nations and conversion of Indians from hunters into agriculturalists. Indians
k3 209k3 The
treaty of Holston, made with the Cherokees in July, 1791, 7 Stat. 39, recognizing
their national character, and their right of self-government, guarantying their
lands, and pledging the faith of the United States for their protection, is now
in full force. Indians
k3 209k3 Under
treaty of Hopewell with the Cherokee Indians the word "allotted" in describing
boundary between Indians and citizens of the United States was used in sense of
"marked out". Indians
k3 209k3 Under
treaty of Hopewell with Cherokee Indians, the use of term "hunting ground" in
describing boundary did not manifest intent to restrict full use of lands reserved
to the Indians. Indians
k3 209k3 The
constitutional provision declaring treaties already made and those to be made
to be the supreme law of the land, admits and sanctions previous treaties with
Indian nations and hence admits their rank among those powers capable of making
treaties. Indians
k3 209k3 The
relation assumed by the Cherokee nation under the treaty of Holston of 1791, 17
Stat. 39, was that of a nation claiming and receiving protection of more powerful
nation and not that of individuals abandoning their national character and submitting
as subject to the laws of a master. Indians
k3 209k3 Article
of treaty with Cherokee nation acknowledging Cherokees to be under protection
of the United States and no other power involved no claim to land or dominion
over persons of Indians that bound Cherokees to the United States as a dependent
ally without involving surrender of national character. Indians
k3 209k3 The
article of treaty with Cherokee nation that for benefit of comfort of Indians
and for prevention of injuries or oppression on part of citizen or Indians, United
States should have sole and exclusive right of regulating trade with Indians and
managing all their affairs did not divest Indians of right of self-government
on subjects not connected with trade. Indians
k10 209k10 The
rule giving nation making discovery sole right of acquiring soil and making settlements
on it should not annul previous right of those who had not agreed thereto or affect
rights of those already in possession as aboriginal occupants or occupants by
virtue of discovery made before the memory of man. Indians
k10 209k10 Treaties
and laws of the United States relating to Indians contemplate Indian territory
as completely separated from that of the state. Indians
k11 209k11 The
acceptance by the United States of cessions by the Cherokee Indians under Treaty
of Holston of 1791, 7 Stat. 39, constituted acknowledgment of right of Cherokees
to make or withhold cessions. Indians
k32 209k32 Act
Ga. Dec. 22, 1830, to prevent the exercise of assumed and arbitrary power by persons
under pretext of authority from the Cherokee Indians, and providing for imprisonment
of persons who should reside among such Indians within the Cherokee Nation without
first obtaining authority to do so from the governor of the state, is a nullity,
because the Cherokee Nation within the state of Georgia, having been recognized
by the laws and treaties of the United States as subject to the control and dominion
of the Cherokee Nation of Indians, is not within the territorial jurisdiction
of Georgia. *534
The case was argued for the plaintiffs in error by Mr. Sergeant and Mr Wirt, with
whom also was Mr Elisha W. Chester. The
following positions were laid down and supported by Mr Sergeant and Mr Wirt. 1.
That the court had jurisdiction of the question brought before them by the writ
of error; and the jurisdiction extended equally to criminal and to civil cases. 2.
That the writ of error was duly issued, and duly returned, so as to bring the
question regularly before the court, under the constitution and laws of the United
States; and oblige the court to take cognizance of it. 3.
That the statute of Georgia under which the plaintiffs in error were indicted
and convicted, was unconstitutional and void. Because:*535 1.
By the constitution of the United States, the establishment and regulation of
intercourse with the Indians belonged, exclusively, to the government of the United
States. 2.
The power thus given, exclusively, to the government of the United States had
been exercised by treaties and by acts of congress, now in force, and applying
directly to the case of the Cherokees; and that no state could interfere, without
a manifest violation of such treaties and laws, which by the constitution were
the supreme law of the land. 3.
The statute of Georgia assumed the power to change these regulations and laws;
to prohibit that which they permitted; and to make that criminal which they declared
innocent or meritorious; and to subject to condemnation and punishment, free citizens
of the United States who had committed no offence. 4.
That the indictment, conviction, and sentence being founded upon a statute of
Georgia, which was unconstitutional and void; were themselves also void and of
no effect, and ought to be reversed. These
several positions were supported, enforced and illustrated by argument and authority. The
following authorities were referred to: 2
Laws U. S. 65, sect. 25; Judiciary Act of 1789; Miller v. Nicols, 4 Wheat. 311;
Craig v. State of Missouri, 4 Peters, 400, 429; Fisher v. Cockerell, 5 Peters,
248; Ex parte Kearny, 7 Wheat. 38; Cohens v. Virginia, 6 Wheat. 264; Martin v.
Hunter, 1 Wheat. 304, 315, 361; 1 Laws U. S. 488, 470, 472, 482, 484, 486, 453;
Blunt's Historical Sketch, 106, 107; Treaties with the Cherokees, 28th Nov. 1785,
2d July 1791, 26th July 1794, 2d Oct. 1798; 3 Laws U. S. 27, 125, 284, 303, 344,
460; 12 Journ. Congress, 82; Blunt's Hist. Sketch, 113, 110, 111, 114; Federalist,
No. 42; 1 Laws U. S. 454; Holland v. Pack, Peck's Rep. 151; Johnson v. M'Intosh,
8 Wheat. 543; Cherokee Nation v. State of Georgia, 5 Peters, 1, 16, 27, 31, 48;
Ware v. Hylton, 3 Dall. 199; Hughes v. Edwards, 9 Wheat. 489; Fisher v. Hamden,
1 Paine, 55; Hamilton v. Eaton, North Carolina Cases, 79; M'Cullough v. State
of Maryland, 4 Wheat. 316; 2 Laws U. S. 121; 3 Laws U. S. 460; 6 Laws U. S. 750;
Gibbon v. Ogden, 9 Wheat. 1.*536 Mr
Chief Justice MARSHALL delivered the opinion of the Court. 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 labour for four
years in the penitentiary of Georgia; under colour 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
behoves 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 (sec. 22, 25, 2 Laws U. S. 64, 65), so far as it prescribes the mode
of proceeding, appears to have been literally pursued. In
February 1797, a rule (6 Wheat. Rules) 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
*537 copy of the record, and of all proceedings in the same, under his hand
and the seal of the court.' 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 v. Hunter's Lessee, 1 Wheat. 304, 361, 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 v. Van Ness, 8 Wheat. 312, 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. M'Culloch
v. The State of Maryland, 4 Wheat. 316, 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. v. 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. 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 license,'
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 *538 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 authorised 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, authorised to govern themselves,
and all persons who have settled within their territory, free from any right of
legislative interference by the several states composing *539 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 authorised 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
guarantee 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 against 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, *540 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, plead not
guilty. The jury found a verdict against him, and the court sentenced him to hard
labour, 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 twenty-fifth
section of the 'act to establish the judicial courts of the United States.' The
plea avers, that the residence, charged in the indictment, was under the authority
of the president of the United States, and with the permission and approval of
the Cherokee nation. That the treaties, subsisting between the United States,
and the Cherokees, acknowledge their right as a sovereign nation 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. That the act under which the prosecution was instituted is repugnant
to the said treaties, and is, therefore, unconstitutional and void. That the said
act is, also, unconstitutional; because it interferes with, and attempts to regulate
and control, the intercourse with the Cherokee nation, which belongs, exclusively,
to congress; and, because, also, it is repugnant to the statute of the United
States, entitled 'an act to *541 regulate trade and intercourse with the
Indian tribes, and to preserve peace on the frontiers.' Let
the averments of this plea be compared with the twenty-fifth section of the judicial
act. That
section enumerates the cases in which the final judgment or decree of a state
court may be revised in the supreme court of the United States. These are, 'where
is drawn in question the validity of a treaty, or statute of, or an authority
exercised under, the United States, and the decision is against their validity;
or where is drawn in question the validity of a statute of, or an authority exercised
under any state, on the ground of their being repugnant to the constitution, treaties
or laws of the United States, and the decision is in favour of such their validity;
or where is drawn in question the construction of any clause of the constitution,
or of a treaty, or statute of, or commission held under the United States, and
the decision is against the title, right, privilege or exemption, specially set
up or claimed by either party under such clause of the said constitution, treaty,
statute or commission.' The
indictment and plea in this case draw in question, we think, the validity of the
treaties made by the United States with the Cherokee Indians; if not so, their
construction is certainly drawn in question; and the decision has been, if not
against their validity, 'against the right, privilege or exemption, specially
set up and claimed under them.' They also draw into question the validity of a
statute of the state of Georgia, 'on the ground of its being repugnant to the
constitution, treaties and laws of the United States, and the decision is in favour
of its validity.' It
is, then, we think, too clear for controversy, that the act of congress, by which
this court is constituted, has given it the power, and of course imposed on it
the duty, of exercising jurisdiction in this case. This duty, however unpleasant,
cannot be avoided. Those who fill the judicial department have no discretion in
selecting the subjects to be brought before them. We must examine the defence
set up in this plea. We must inquire and decide whether the act of the legislature
of Georgia, under which the plaintiff in error has been prosecuted and condemned,
be consistent with, or repugnant to, the constitution, laws and treaties of the
United States. *542
It has been said at the bar, that the acts of the legislature of Georgia seize
on the whole Cherokee country, parcel it out among the neighbouring counties of
the state, extend her code over the whole country, abolish its institutions and
its laws, and annihilate its political existence. If
this be the general effect of the system, let us inquire into the effect of the
particular statute and section on which the indictment is founded. It
enacts that 'all white persons, residing within the limits of the Cherokee nation
on the 1st day of March next, or at any time thereafter, without a license or
permit from his excellency the governor, or from such agent as his excellency
the governor shall authorise to grant such permit or license, and who shall not
have taken the oath hereinafter required, shall be guilty of a high misdemeanour,
and, upon conviction thereof, shall be punished by confinement to the penitentiary,
at hard labour, for a term not less than four years.' The
eleventh section authorises the governor, should he deem it necessary for the
protection of the mines, or the enforcement of the laws in force within the Cherokee
nation, to raise and organize a guard,' &c. The
thirteenth section enacts, 'that the said guard or any member of them, shall be,
and they are hereby authorised and empowered to arrest any person legally charged
with or detected in a violation of the laws of this state, and to convey, as soon
as practicable, the person so arrested, before a justice of the peace, judge of
the superior, or justice of inferior court of this state, to be dealt with according
to law.' The
extra-territorial power of every legislature being limited in its action, to its
own citizens or subjects, the very passage of this act is an assertion of jurisdiction
over the Cherokee nation, and of the rights and powers consequent on jurisdiction. The
first step, then, in the inquiry, which the constitution and laws impose on this
court, is an examination of the right-fulness of this claim. America,
separated from Europe by a wide ocean, was inhabited by a distinct people, divided
into separate nations, independent of each other and of the rest of the world,
having institutions of their own, and governing themselves by their *543
own laws. It is difficult to comprehend the proposition, that the inhabitants
of either quarter of the globe could have rightful original claims of dominion
over the inhabitants of the other, or over the lands they occupied; or that the
discovery of either by the other should give the discoverer rights in the country
discovered, which annulled the pre-existing rights of its ancient possessors. After
lying concealed for a series of ages, the enterprise of Europe, guided by nautical
science, conducted some of her adventurous sons into this western world. They
found it in possession of a people who had made small progress in agriculture
or manufactures, and whose general employment was war, hunting, and fishing. Did
these adventurers, by sailing along the coast, and occasionally landing on it,
acquire for the several governments to whom they belonged, or by whom they were
commissioned, a rightful property in the soil, from the Atlantic to the Pacific;
or rightful dominion over the numerous people who occupied it? Or has nature,
or the great Creator of all things, conferred these rights over hunters and fishermen,
on agriculturists and manufacturers? But
power, war, conquest, give rights, which, after possession, are conceded by the
world; and which can never be controverted by those on whom they descend. We proceed,
then, to the actual state of things, having glanced at their origin; because holding
it in our recollection might shed some light on existing pretensions. The
great maritime powers of Europe discovered and visited different parts of this
continent at nearly the same time. The object was too immense for any one of them
to grasp the whole; and the claimants were too powerful to submit to the exclusive
or unreasonable pretensions of any single potentate. To avoid bloody conflicts,
which might terminate disastrously to all, it was necessary for the nations of
Europe to establish some principle which all would acknowledge, and which should
decide their respective rights as between themselves. This principle, suggested
by the actual state of things, was, 'that discovery gave title to the government
by whose subjects or by whose authority it was made, against all other European
*544 governments, which title might be consummated by possession.' 8 Wheat.
573. This
principle, acknowledged by all Europeans, because it was the interest of all to
acknowledge it, gave to the nation making the discovery, as its inevitable consequence,
the sole right of acquiring the soil and of making settlements on it. It was an
exclusive principle which shut out the right of competition among those who had
agreed to it; not one which could annul the previous rights of those who had not
agreed to it. It regulated the right given by discovery among the European discoverers;
but could not affect the rights of those already in possession, either as aboriginal
occupants, or as occupants by virtue of a discovery made before the memory of
man. It gave the exclusive right to purchase, but did not found that right on
a denial of the right of the possessor to sell. The
relation between the Europeans and the natives was determined in each case by
the particular government which asserted and could maintain this pre-emptive privilege
in the particular place. The United States succeeded to all the claims of Great
Britain, both territorial and political; but no attempt, so far as is known, has
been made to enlarge them. So far as they existed merely in theory, or were in
their nature only exclusive of the claims of other European nations, they still
retain their original character, and remain dormant. So far as they have been
practically exerted, they exist in fact, are understood by both parties, are asserted
by the one, and admitted by the other. Soon
after Great Britain determined on planting colonies in America, the king granted
charters to companies of his subjects who associated for the purpose of carrying
the views of the crown into effect, and of enriching themselves. The first of
these charters was made before possession was taken of any part of the country.
They purport, generally, to convey the soil, from the Atlantic to the South Sea.
This soil was occupied by numerous and warlike nations, equally willing and able
to defend their possessions. The extravagant and absurd idea, that the feeble
settlements made on the sea coast, or the companies under whom they were made,
acquired legitimate power by them to govern the people, or occupy the lands from
*545 sea to sea, did not enter the mind of any man. They were well understood
to convey the title which, according to the common law of European sovereigns
respecting America, they might rightfully convey, and no more. This was the exclusive
right of purchasing such lands as the natives were willing to sell. The crown
could not be understood to grant what the crown did not affect to claim; nor was
it so understood. The
power of making war is conferred by these charters on the colonies, but defensive
war alone seems to have been contemplated. In the first charter to the first and
second colonies, they are empowered, 'for their several defences, to encounter,
expulse, repel, and resist, all persons who shall, without license,' attempt to
inhabit 'within the said precincts and limits of the said several colonies, or
that shall enterprise or attempt at any time hereafter the least detriment or
annoyance of the said several colonies or plantations.' The
charter to Connecticut concludes a general power to make defensive war with these
terms: 'and upon just causes to invade and destroy the natives or other
enemies of the said colony.' The
same power, in the same words, is conferred on the government of Rhode Island. This
power to repel invasion, and, upon just cause, to invade and destroy the natives,
authorizes offensive as well as defensive war, but only 'on just cause.' The very
terms imply the existence of a country to be invaded, and of an enemy who has
given just cause of war. The
charter to William Penn contains the following recital: 'and because, in so remote
a country, near so many barbarous nations, the incursions, as well of the savages
themselves, as of other enemies, pirates, and robbers, may probably be feared,
therefore we have given,' &c. The instrument then confers the power of war. These
barbarous nations, whose incursions were feared, and to repel whose incursions
the power to make war was given, were surely not considered as the subjects of
Penn, or occupying his lands during his pleasure. The
same clause is introduced into the charter to Lord Baltimore. *546
The charter to Georgia professes to be granted for the charitable purpose of enabling
poor subjects to gain a comfortable subsistence by cultivating lands in the American
provinces, 'at present waste and desolate.' It recites: 'and whereas our provinces
in North America have been frequently ravaged by Indian enemies, more especially
that of South Carolina, which, in the late war by the neighbouring savages, was
laid waste by fire and sword, and great numbers of the English inhabitants miserably
massacred; and our loving subjects, who now inhabit there, by reason of the smallness
of their numbers, will, in case of any new war, be exposed to the like calamities,
inasmuch as their whole southern frontier continueth unsettled, and lieth open
to the said savages.' These
motives for planting the new colony are incompatible with the lofty ideas of granting
the soil, and all its inhabitants from sea to sea. They demonstrate the truth,
that these grants asserted a title against Europeans only, and were considered
as blank paper so far as the rights of the natives were concerned. The power of
war is given only for defence, not for conquest. The
charters contain passages showing one of their objects to be the civilization
of the Indians, and their conversion to Christianity--objects to be accomplished
by conciliatory conduct and good example; not by extermination. The
actual state of things, and the practice of European nations, on so much of the
American continent as lies between the Mississippi and the Atlantic, explain their
claims, and the charters they granted. Their pretensions unavoidably interfered
with each other; though the discovery of one was admitted by all to exclude the
claim of any other, the extent of that discovery was the subject of unceasing
contest. Bloody conflicts arose between them, which gave importance and security
to the neighbouring nations. Fierce and warlike in their character, they might
be formidable enemies, or effective friends. Instead of rousing their resentments,
by asserting claims to their lands, or to dominion over their persons, their alliance
was sought by flattering professions, and purchased by rich presents. The English,
the French, and the Spaniards, were equally competitors for their friendship and
their aid. Not well acquainted with the exact meaning of *547 words, nor
supposing it to be material whether they were called the subjects, or the children
of their father in Europe; lavish in professions of duty and affection, in return
for the rich presents they received; so long as their actual independence was
untouched, and their right to self government acknowledged, they were willing
to profess dependence on the power which furnished supplies of which they were
in absolute need, and restrained dangerous intruders from entering their country;
and this was probably the sense in which the term was understood by them. Certain
it is, that our history furnishes no example, from the first settlement of our
country, of any attempt on the part of the crown to interfere with the internal
affairs of the Indians, farther than to keep out the agents of foreign powers,
who, as traders or otherwise, might seduce them into foreign alliances. The king
purchased their when they were willing to sell, at a price they were willing to
take; but never coerced a surrender of them. He also purchased their alliance
and dependence by subsidies; but never intruded into the interior of their affairs,
or interfered with their self government, so far as respected themselves only. The
general views of Great Britain, with regard to the Indians, were detailed by Mr
Stuart, superintendent of Indian affairs, in a speech delivered at Mobile, in
presence of several persons of distinction, soon after the peace of 1763. Towards
the conclusion he says, 'lastly, I inform you that it is the king's order to all
his governors and subjects, to treat Indians with justice and humanity, and to
forbear all encroachments on the territories allotted to them; accordingly, all
individuals are prohibited from purchasing any of your lands; but, as you know
that, as your white brethren cannot feed you when you visit them unless you give
them ground to plant, it is expected that you will cede lands to the king for
that purpose. But, whenever you shall be pleased to surrender any of your territories
to his majesty, it must be done, for the future, at a public meeting of your nation,
when the governors of the provinces, or the superintendent shall be present, and
obtain the consent of all your people. The boundaries of your hunting grounds
will be accurately fixed, and no settlement permitted to be made upon them. As
you may be assured that all treaties *548 with your people will be faithfully
kept, so it is expected that you, also, will be careful strictly to observe them.' The
proclamation issued by the king of Great Britain, in 1763, soon after the ratification
of the articles of peace, forbids the governors of any of the colonies to grant
warrants of survey, or pass patents upon any lands whatever, which, not having
been ceded to, or purchased by, us (the king), as aforesaid, are reserved to the
said Indians, or any of them. The
proclamation proceeds: 'and we do further declare it to be our royal will and
pleasure, for the present, as aforesaid, to reserve, under our sovereignty, protection,
and dominion, for the use of the said Indians, all the lands and territories lying
to the westward of the sources of the rivers which fall into the sea, from the
west and northwest as aforesaid: and we do hereby strictly forbid, on pain of
our displeasure, all our loving subjects from making any purchases or settlements
whatever, or taking possession of any of the lands above reserved, without our
special leave and license for that purpose first obtained. 'And
we do further strictly enjoin and require all persons whatever, who have, either
wilfully or inadvertently, seated themselves upon any lands within the countries
above described, or upon any other lands which, not having been ceded to, or purchased
by us, are still reserved to the said Indians, as aforesaid, forthwith to remove
themselves from such settlements.' A
proclamation, issued by Governor Gage, in 1772, contains the following passage:
'whereas many persons, contrary to the positive orders of the king, upon this
subject, have undertaken to make settlements beyond the boundaries fixed by the
treaties made with the Indian nations, which boundaries ought to serve as a barrier
between the whites and the said nations; particularly on the Ouabache.' The proclamation
orders such persons to quit those countries without delay. Such
was the policy of Great Britain towards the Indian nations inhabiting the territory
from which she excluded all other Europeans; such her claims, and such her practical
exposition of the charters she had granted; she considered them as nations capable
of maintaining the relations of peace and war; of governing themselves, under
her protection; and she *549 made treaties with them, the obligation of
which she acknowledged. This
was the settled state of things when the war of our revolution commenced. The
influence of our enemy was established; her resources enabled her to keep up that
influence; and the colonists had much cause for the apprehension that the Indian
nations would, as the allies of Great Britain, add their arms to hers. This, as
was to be expected, became an object of great solicitude to congress. Far from
advancing a claim to their lands, or asserting any right of dominion over them,
congress resolved 'that the securing and preserving the friendship of the Indian
nations appears to be a subject of the utmost moment to these colonies.' The
early journals of congress exhibit the most anxious desire to conciliate the Indian
nations. Three Indian departments were established; and commissioners appointed
in each, 'to treat with the Indians in their respective departments, in the name
and on the behalf of the United Colonies, in order to preserve peace and friendship
with the said Indians, and to prevent their taking any part in the present commotions.' The
most strenuous exertions were made to procure those supplies on which Indian friendships
were supposed to depend; and every thing which might excite hostility was avoided. The
first treaty was made with the Delawares, in September 1778. The
language of equality in which it is drawn, evinces the temper with which the negotiation
was undertaken, and the opinion which then prevailed in the United States. '1.
That all offences or acts of hostilities, by one or either of the contracting
parties against the other, be mutually forgiven, and buried in the depth of oblivion,
never more to be had in remembrance. '2.
That a perpetual peace and friendship shall, from henceforth, take place and subsist
between the contracting parties aforesaid, through all succeeding generations:
and if either of the parties are engaged in a just and necessary war, with any
other nation or nations, that then each shall assist the other, in due proportion
to their abilities, till their enemies are brought to reasonable terms of accommodation,'
&c. 3.
The third article stipulates, among other things, a free *550 passage for
the American troops through the Delaware nation; and engages that they shall be
furnished with provisions and other necessaries at their value. '4.
For the better security of the peace and friendship now entered into by the contracting
parties against all infractions of the same by the citizens of either party, to
the prejudice of the other, neither party shall proceed to the infliction of punishments
on the citizens of the other, otherwise than by securing the offender or offenders,
by imprisonment, or any other competent means, till a fair and impartial trial
can be had by judges or juries of both parties, as near as can be to the laws,
customs and usages of the contracting parties, and natural justice,' &c. 5.
The fifth article regulates the trade between the contracting parties, in a manner
entirely equal. 6.
The sixth article is entitled to peculiar attention, as it contains a disclaimer
of designs which were, at that time, ascribed to the United States, by their enemies,
and from the imputation of which congress was then peculiarly anxious to free
the government. It is in these words: 'Whereas the enemies of the United States
have endeavoured, by every artifice in their power, to possess the Indians in
general with an opinion that it is the design of the states aforesaid to extirpate
the Indians, and take possession of their country: to obviate such false suggestion
the United States do engage to guaranty to the aforesaid nation of Delawares,
and their heirs, all their territorial rights, in the fullest and most ample manner,
as it hath been bounded by former treaties, as long as the said Delaware nation
shall abide by, and hold fast the chain of friendship now entered into.' The
parties further agree, that other tribes, friendly to the interest of the United
States, may be invited to form a state, whereof the Delaware nation shall be the
heads, and have a representation in congress. This
treaty, in its language, and in its provisions, is formed, as near as may be,
on the model of treaties between the crowned heads of Europe. The
sixth article shows how congress then treated the injurious calumny of cherishing
designs unfriendly to the political and civil rights of the Indians. *551
During the war of the revolution, the Cherokees took part with the British. After
its termination, the United States, though desirous of peace, did not feel its
necessity so strongly as while the war continued. Their political situation being
changed, they might very well think it advisable to assume a higher tone, and
to impress on the Cherokees the same respect for congress which was before felt
for the king of Great Britain. This may account for the language of the treaty
of Hopewell. There is the more reason for supposing that the Cherokee chiefs were
not very critical judges of the language, from the fact that every one makes his
mark; no chief was capable of signing his name. It is probable the treaty was
interpreted to them. The
treaty is introduced with the declaration, that 'the commissioners plenipotentiary
of the United States give peace to all the Cherokees, and receive them into the
favour and protection of the United States of America, on the following conditions.' When
the United States gave peace, did they not also receive it? Were not both parties
desirous of it? If we consult the history of the day, does it not inform us that
the United States were at least as anxious to obtain it as the Cherokees? We may
ask, further: did the Cherokees come to the seat of the American government to
solicit peace; or, did the American commissioners go to them to obtain it? The
treaty was made at Hopewell, not at New York. The word 'give,' then, has no real
importance attached to it. The
first and second articles stipulate for the mutual restoration of prisoners, and
are of course equal. The
third article acknowledges the Cherokees to be under the protection of the United
States of America, and of no other power. This
stipulation is found in Indian treaties, generally. It was introduced into their
treaties with Great Britain; and may probably be found in those with other European
powers. Its origin may be traced to the nature of their connexion with those powers;
and its true meaning is discerned in their relative situation. The
general law of European sovereigns, respecting their claims in America, limited
the intercourse of Indians, in a *552 great degree, to the particular potentate
whose ultimate right of domain was acknowledged by the others. This was the general
state of things in time of peace. It was sometimes changed in war. The consequence
was, that their supplies were derived chiefly from that nation, and their trade
confined to it. Goods, indispensable to their comfort, in the shape of presents,
were received from the same hand. What was of still more importance, the strong
hand of government was interposed to restrain the disorderly and licentious from
intrusions into their country, from encroachments on their lands, and from those
acts of violence which were often attended by reciprocal murder. The Indians perceived
in this protection only what was beneficial to themselves--an engagement to punish
aggressions on them. It involved, practically, no claim to their lands, no dominion
over their persons. It merely bound the nation to the British crown, as a dependent
ally, claiming the protection of a powerful friend and neighbour, and receiving
the advantages of that protection, without involving a surrender of their national
character. This
is the true meaning of the stipulation, and is undoubtedly the sense in which
it was made. Neither the British government, nor the Cherokees, ever understood
it otherwise. The
same stipulation entered into with the United States, is undoubtedly to be construed
in the same manner. They receive the Cherokee nation into their favor and protection.
The Cherokees acknowledge themselves to be under the protection of the United
States, and of no other power. Protection does not imply the destruction of the
protected. The manner in which this stipulation was understood by the American
government, is explained by the language and acts of our first president. The
fourth article draws the boundary between the Indians and the citizens of the
United States. But, in describing this boundary, the term 'allotted' and the term
'hunting ground' are used. Is
it reasonable to suppose, that the Indians, who could not write, and most probably
could not read, who certainly were not critical judges of our language, should
distinguish the word 'allotted' from the words 'marked out.' The actual subject
of contract was the dividing line between the two nations, *553 and their
attention may very well be supposed to have been confined to that subject. When,
in fact, they were ceding lands to the United States, and describing the extent
of their cession, it may very well be supposed that they might not understand
the term employed, as indicating that, instead of granting, they were receiving
lands. If the term would admit of no other signification, which is not conceded,
its being misunderstood is so apparent, results so necessarily from the whole
transaction; that it must, we think, be taken in the sense in which it was most
obviously used. So
with respect to the words 'hunting grounds.' Hunting was at that time the principal
occupation of the Indians, and their land was more used for that purpose than
for any other. It could not, however, be supposed, that any intention existed
of restricting the full use of the lands they reserved. To
the United States, it could be a matter of no concern, whether their whole territory
was devoted to hunting grounds, or whether an occasional village, and an occasional
corn field, interrupted, and gave some variety to the scene. These
terms had been used in their treaties with Great Britain, and had never been misunderstood.
They had never been supposed to imply a right in the British government to take
their lands, or to interfere with their internal government. The
fifth article withdraws the protection of the United States from any citizen who
has settled, or shall settle, on the lands allotted to the Indians, for their
hunting grounds; and stipulates that, if he shall not remove within six months
the Indians may punish him. The
sixth and seventh articles stipulate for the punishment of the citizens of either
country, who may commit offences on or against the citizens of the other. The
only inference to be drawn from them is, that the United States considered the
Cherokees as a nation. The
ninth article is in these words: 'for the benefit and comfort of the Indians,
and for the prevention of injuries or oppressions on the part of the citizens
or Indians, the United States, in congress assembled, shall have the sole and
exclusive right of regulating the trade with the Indians, and managing all
their affairs, as they think proper.' To
construe the expression 'managing all their affairs,' *554 into a surrender
of self-government, would be, we think, a perversion of their necessary meaning,
and a departure from the construction which has been uniformly put on them. The
great subject of the article is the Indian trade. The influence it gave, made
it desirable that congress should possess it. The commissioners brought forward
the claim, with the profession that their motive was 'the benefit and comfort
of the Indians, and the prevention of injuries or oppressions.' This may be true,
as respects the regulation of their trade, and as respects the regulation of all
affairs connected with their trade, but cannot be true, as respects the management
of all their affairs. The most important of these, are the cession of their lands,
and security against intruders on them. Is it credible, that they should have
considered themselves a surrendering to the United States the right to dictate
their future cessions, and the terms on which they should be made? or to compel
their submission to the violence of disorderly and licentious intruders? It is
equally inconceivable that they could have supposed themselves, by a phrase thus
slipped into an article, on another and most interesting subject, to have divested
themselves of the right of self-government on subjects not connected with trade.
Such a measure could not be 'for their benefit and comfort,' or for 'the prevention
of injuries and oppression.' Such a construction would be inconsistent with the
spirit of this and of all subsequent treaties; especially of those articles which
recognise the right of the Cherokees to declare hostilities, and to make war.
It would convert a treaty of peace covertly into an act, annihilating the political
existence of one of the parties. Had such a result been intended, it would have
been openly avowed. This
treaty contains a few terms capable of being used in a sense which could not have
been intended at the time, and which is inconsistent with the practical construction
which has always been put on them; but its essential articles treat the Cherokees
as a nation capable of maintaining the relations of peace and war; and ascertain
the boundaries between them and the United States. The
treaty of Hopewell seems not to have established a solid peace. To accommodate
the differences still existing between the state of Georgia and the Cherokee nation,
the treaty of *555 Holston was negotiated in July 1791. The existing constitution
of the United States had been then adopted, and the government, having more intrinsic
capacity to enforce its just claims, was perhaps less mindful of high sounding
expressions, denoting superiority. We hear no more of giving peace to the Cherokees.
The mutual desire of establishing permanent peace and friendship, and of removing
all causes of war, is honestly avowed, and, in pursuance of this desire, the first
article declares, that there shall be perpetual peace and friendship between all
the citizens of the United States of America and all the individuals composing
the Cherokee nation. The
second article repeats the important acknowledgement, that the Cherokee nation
is under the protection of the United States of America, and of no other sovereign
whosoever. The
meaning of this has been already explained. The Indian nations were, from their
situation, necessarily dependent on some foreign potentate for the supply of their
essential wants, and for their protection from lawless and injurious intrusions
into their country. That power was naturally termed their protector. They had
been arranged under the protection of Great Britain: but the extinguishment of
the British power in their neighbourhood, and the establishment of that of the
United States in its place, led naturally to the declaration, on the part of the
Cherokees, that they were under the protection of the United States, and of no
other power. They assumed the relation with the United States, which had before
subsisted with Great Britain. This
relation was that of a nation claiming and receiving the protection of one more
powerful: not that of individuals abandoning their national character, and submitting
as subjects to the laws of a master. The
third article contains a perfectly equal stipulation for the surrender of prisoners. The
fourth article declares, that 'the boundary between the United States and the
Cherokee nation shall be as follows: beginning,' &c. We hear no more of 'allotments'
or of 'hunting grounds.' A boundary is described, between nation and nation, by
mutual consent. The national character of each; the ability of each to establish
this boundary, is acknowledged by the other. To preclude for ever all disputes,
it is agreed *556 that it shall be plainly marked by commissioners, to
be appointed by each party; and, in order to extinguish for ever all claim of
the Cherokees to the ceded lands, an additional consideration is to be paid by
the United States. For this additional consideration the Cherokees release all
right to the ceded land, for ever. By
the fifth article, the Cherokees allow the United States a road through their
country, and the navigation of the Tennessee river. The acceptance of these cessions
is an acknowledgement of the right of the Cherokees to make or withhold them. By
the sixth article, it is agreed, on the part of the Cherokees, that the United
States shall have the sole and exclusive right of regulating their trade. No claim
is made to the management of all their affairs. This stipulation has already been
explained. The observation may be repeated, that the stipulation is itself an
admission of their right to make or refuse it. By
the seventh article the United States solemnly guaranty to the Cherokee nation
all their lands not hereby ceded. The
eighth article relinquishes to the Cherokees any citizens of the United States
who may settle on their lands; and the ninth forbids any citizen of the United
States to hunt on their lands, or to enter their country without a passport. The
remaining articles are equal, and contain stipulations which could be made only
with a nation admitted to be capable of governing itself. This
treaty, thus explicitly recognizing the national character of the Cherokees, and
their right of self government; thus guarantying their lands; assuming the duty
of protection, and of course pleding the faith of the United States for that protection;
has been frequently renewed, and is now in full force. To
the general pledge of protection have been added several specific pledges, deemed
valuable by the Indians. Some of these restrain the citizens of the United States
from encroachments on the Cherokee country, and provide for the punishment of
intruders. From
the commencement of our government, congress has passed acts to regulate trade
and intercourse with the Indians; which treat them as nations, respect their rights,
and manifest *557 a firm purpose to afford that protection which treaties
stipulate. All these acts, and especially that of 1802, which is still in force,
manifestly consider the several Indian nations as distinct political communities,
having territorial boundaries, within which their authority is exclusive, and
having a right to all the lands within those boundaries, which is not only acknowledged,
but guarantied by the United States. In
1819, congress passed an act for promoting those humane designs of civilizing
the neighbouring Indians, which had long been cherished by the executive. It enacts,
'that, for the purpose of providing against the further decline and final extinction
of the Indian tribes adjoining to the frontier settlements of the United States,
and for introducing among them the habits and arts of civilization, the president
of the United States shall be, and he is hereby authorized, in every case where
he shall judge improvement in the habits and condition of such Indians practicable,
and that the means of instruction can be introduced with their own consent,
to employ capable persons, of good moral character, to instruct them in the mode
of agriculture suited to their situation; and for teaching their children in reading,
writing and arithmetic; and for performing such other duties as may be enjoined,
according to such instructions and rules as the president may give and prescribe
for the regulation of their conduct in the discharge of their duties.' This
act avowedly contemplates the preservation of the Indian nations as an object
sought by the United States, and proposes to effect this object by civilizing
and converting them from hunters into agriculturists. Though the Cherokees had
already made considerable progress in this improvement, it cannot be doubted that
the general words of the act comprehend them. Their advance in the 'habits and
arts of civilization,' rather encouraged perseverance in the laudable exertions
still farther to meliorate their condition. This act furnishes strong additional
evidence of a settled purpose to fix the Indians in their country by giving them
security at home. The
treaties and laws of the United States contemplate the Indian territory as completely
separated from that of the states; and provide that all intercourse with them
shall be carried on exclusively by the government of the union. *558
Is this the rightful exercise of power, or is it usurpation? While
these states were colonies, this power, in its utmost extent, was admitted to
reside in the crown. When our revolutionary struggle commenced, congress was composed
of an assemblage of deputies acting under specific powers granted by the legislatures,
or conventions of the several colonies. It was a great popular movement, not perfectly
organized; nor were the respective powers of those who were entrusted with the
management of affairs accurately defined. The necessities of our situation produced
a general conviction that those measures which concerned all, must be transacted
by a body in which the representatives of all were assembled, and which could
command the confidence of all: congress, therefore, was considered as invested
with all the powers of war and peace, and congress dissolved our connexion with
the mother country, and declared these United Colonies to be independent states.
Without any written definition of powers, they employed diplomatic agents to represent
the United States at the several courts of Europe; offered to negotiate treaties
with them, and did actually negotiate treaties with France. From the same necessity,
and on the same principles, congress assumed the management of Indian affairs;
first in the name of these United Colonies; and, afterwards, in the name of the
United States. Early attempts were made at negotiation, and to regulate trade
with them. These not proving successful, war was carried on under the direction,
and with the forces of the United States, and the efforts to make peace, by treaty,
were earnest and incessant. The confederation found congress in the exercise of
the same powers of peace and war, in our relations with Indian nations, as will
those of Europe. Such
was the state of things when the confederation was adopted. That instrument surrendered
the powers of peace and war to congress, and prohibited them to the states, respectively,
unless a state be actually invaded, 'or shall have received certain advice of
a resolution being formed by some nation of Indians to invade such state, and
the danger is so imminent as not to admit of delay till the United States in congress
assembled can be consulted.' This instrument also gave the United States in congress
assembled the sole and exclusive right of 'regulating the trade and managing all
the affairs with the Indians, not *559 members of any of the states: provided,
that the legislative power of any state within its own limits be not infringed
or violated.' The
ambiguous phrases which follow the grant of power to the United States, were so
construed by the states of North Carolina and Georgia as to annul the power itself.
The discontents and confusion resulting from these conflicting claims, produced
representations to congress, which were referred to a committee, who made their
report in 1787. The report does not assent to the construction of the two states,
but recommends an accommodation, by liberal cessions of territory, or by an admission,
on their part, of the powers claimed by congress. The correct exposition of this
article is rendered unnecessary by the adoption of our existing constitution.
That instrument confers on congress the powers of war and peace; of making treaties,
and of regulating commerce with foreign nations, and among the several states,
and with the Indian tribes. These powers comprehend all that is required
for the regulation of our intercourse with the Indiana. They are not limited by
any restrictions on their free actions. The shackles imposed on this power, in
the confederation, are discarded. The
Indian nations had always been considered as distinct, independent political communities,
retaining their original natural rights, as the undisputed possessors of the soil,
from time immemorial, with the single exception of that imposed by irresistible
power, which excluded them from intercourse with any other European potentate
than the first discoverer of the coast of the particular region claimed: and this
was a restriction which those European potentates imposed on themselves, as well
as on the Indians. The very term 'nation,' so generally applied to them, means
'a people distinct from others.' The constitution, by declaring treaties already
made, as well as those to be made, to be the supreme law of the land, has adopted
and sanctioned the previous treaties with the Indian nations, and consequently
admits their rank among those powers wh |
