CHAPTER XII.

THE FIRST CASE OF THE CHEROKEES IN THE SUPREME COURT; ITS FAILURE; AND FAILURE

OF A MOTION IN CONGRESS IN THEir behalf, 1831.

As I have stated, the Cherokees had a case depending in the Supreme Court, and were urging an application for relief in Congress, during the winter of my sojourn at Washington.

I do not remember the exact form of the question in Court. But the case was brought, as I believe, under the following clause of the 2d section of the 3d article of the Constitution: "That the judicial power (of the United States) shall extend to all cases, in law or equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; between a State and the citizens

thereof, and foreign States, citizens, or subjects." The Cherokees appeared in Court, as a nation, to plead the obligation and protection of treaties between themselves and the United States. The constitution, as above, says: "The judicial power shall extend to all cases, in law or equity, arising, &c. between a State and foreign States." The case failed, not for want of equity, or of a warrantable construction of the constitution, but for want of a literal expression of constitutional law, sufficient to cover and embrace it. The Court, benevolent and desirous of relieving the Indians, and fully believing, that they ought to be relieved from the usurpations of Georgia, did not like to adjudicate the case and hazard a decision, based on the ground, that the Cherokes were a foreign nation. A hearing, however, was granted to the counsel of the Cherokees, Messrs. Wirt and Sargeant, which occupied several days. And it is not improbable, that the Court would have sustained the argument, from the equity of the case, as well as from the obvious design of the constitution, except that they saw the door was open for the Cherokees to appear in another form, and enforce a decision upon the general merits of the Indian question, and one that should cover the whole ground of controversy; subjecting the

injured, however, to the delay of a year, during which time great strides were expected to be made, and were actually made, by the powers opposed to them. But since the Cherokees were not in fact, a foreign, but a domestic nation, sustaining peculiar relations to the Government; and since it was evident, from the nature and extent of their grievances, that they might be heard on other grounds, and obtain a decision from that tribunal, placed beyond the reach of controversy, both in law and equity, it was deemed prudent to dismiss the present case with advice. The argument of counsel was published, making a heavy octavo, along with the decision of the Court-throwing and concentrating a flood of light upon the subject; and preparing the way for a future triumph. The expectations of the Cherokees, so far as the law of the case was concerned, were rather revived, than depressed, by this decision. In the Court, their confidence was fully established. They anticipated with certainty what would be their decision in 1832. That decision may be found in the Appendix of this volume, and has previously been the subject of our notice.

But what would the decrees of courts avail them, so long as there was no power to enforce them? The law of the case was bright; the fact

of the case was dark and gloomy. Georgia had already broken them down, and the President had declared, that he could not interpose his power. Georgia and the President together had anticipated the Court, had accumulated and brought to bear upon the Cherokees the most energetic influences, and were fast driving them before their irresistible hand. While the law of the nation delayed on one side, the penitentiary of Georgia was open on the other. The former, when its decisions should at last come out, might prove to the world, that there was virtue in the Court-that there was yet independence and a sense of right in that high and sacred branch of the Government; at the same time, that ruin would be rolling its tide over the heads of the Indians, and sweeping them away. However grateful, therefore, the Indians might be for the Court's scrupulous regard of right, and for the pledges, involved in their decision of March, 1831, that a hearing might be had and a favourable decision, on other grounds-there was little consolation. From Georgia they had turned to the President. But the President could not listen to them. From both these, they appealed to the Court; neither could the Court hear them in season to answer their purpose. They had appealed to Congress; but in vain.

We have before recognized the fact, that the question of removing the Indians was virtually tried in Congress, in the spring of 1830, by the passage of a bill of appropriation for this object. The President called for money to sustain and execute his policy in this particular. Of course it brought the entire merits of removal under discussion. A long protracted debate, and one of the most animated that ever characterised the deliberations of that body, ensued. Public sympathy was very much roused. Petitions poured in from all parts of the country, to protest against the measure, and to pray Congress to rescue the Indians from such violent treatment. The measure, however, had been matured; the question had unfortunately become a party one; the strength of parties was measured; and the virtue of the petitioners, weighed in the balances of party strife on other and great questions, went for nothing with their opponents, who kept silence, and permitted their leaders to go on. The contest, however, on the floor of both houses of Congress, with the advocates of Indian rights, was a contest of principle; and was maintained with an ability and determination, which will for ever reflect an equal lustre from their hearts, as from their understandings.

With the advocates of the bill, it was pre