*Johnson and Graham’s Lessee v. William McIntosh.

Indian grants.

A title to lands, under grant to private individuals, made by Indian tribes or nations north-west of the river Ohio, in 1773 and 1775, cannot be recognised in the courts of the United States.1

Error to the District Court of Illinois. This was an action of ejectment for lands in the state and district of Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians, and by the defendant, under a grant from the United States. It came up on a case stated, upon which there was a judgment below for the defendant. The case stated set out the following facts:

1st. That on the 23d of May 1609, James I., king of England, by his letters-patent of that date, under the great seal of England, did erect, form and establish Robert, Earl of Salisbury, and others, his associates, in the letters-patent named, and their successors, into a body corporate and politic, by the name and style of “The Treasurer and Company of Adventurers and Planters of the City of London, for the first Colony of Virginia,” with perpetual succession, and power to make, have and use a common seal; and did give, grant and confirm unto this company, and their successors, *under certain reservations and limitations in the letters patent expressed, “All the lands, countries and territories, situate, lying and being in that part of North America called Virginia, from the point of land called Cape or Point Comfort, all along the sea-coast, to the northward, two hundred miles; and from the said Cape or Point Comfort, all along the sea-coast to the southward, two hundred miles; and all that space and circuit of land lying from the sea-cast of the precinct aforesaid, up into the land throughout from the sea, west and north-west; and also all the islands lying within one hundred miles along the coast of both seas of the precinct aforesaid; with all the soil, grounds, rights, privileges and appurtenances to these territories belonging, and in the letters-patent particularly enumerated:" and did grant to this corporation, and their successors, various powers of government, in the letters-patent particularly expressed.

2d. That the place, called in these letters-patent, Cape or Point Comfort, is the place now called and known by the name of Old Point Comfort, on the Chesapeake bay and Hampton roads; and that immediately after the granting of the letters-patent, the corporation proceeded, under and by virtue of them, to take possession of parts of the territory which they describe, and to form settlements, plant a colony, and exercise the powers of government therein; which colony was called and known by the name of the colony of Virginia.

*2413d. That at the time of granting these letters-patent, and of the discovery of the continent of *North America, by the Europeans, and during the whole intermediate time, the whole of the territory in the letters-patent described, except a small district on James river, where a settlement of Europeans had previously been made, was held, occupied and possessed, in full sovereignty, by various independent tribes or nations of Indians, who were the sovereigns of their respective portions of the territory, and the absolute owners and proprietors of the soil; and who neither acknowledged nor owed any allegiance or obedience to any European sovereign or state whatever: and that in making settlements within this territory, and in all the other parts of North America, where settlements were made, under the authority of the English government, or by its subjects, the right of soil was previously obtained, by purchase or conquest, from the particular Indian tribe or nation by which the soil was claimed and held; or the consent of such tribe or nation was secured.

4th. That in the year 1624, this corporation was dissolved by due course of law, and all its powers, together with its rights of soil and jurisdiction, under the letters-patent in question, were re-vested in the crown of England; whereupon, the colony became a royal government, with the same territorial limits and extent which had been established by the letters-patent, and so continued, until it became a free and independent state; except so far as its limits and extent were altered and curtailed by the treaty of February 10th, 1763, between Great Britain and France, and by the letters-patent granted by the king of England, *for establishing the colonies of Carolina, Maryland and Pennsylvania.

5th. That some time previous to the year 1756, the French government, laying a claim to the country west of the Allegheny or Appalachian mountains, on the Ohio and Mississippi rivers, and their branches, took possession of certain parts of it, with the consent of the several tribes or nations of Indians possessing and owning them; and with the like consent, established several military posts and settlements therein, particularly at Kaskaskias, on the river Kaskaskias, and at Vincennes, on the river Wabash, within the limits of the colony of Virginia, as described and established in and by the letters-patent of May 23d, 1609; and that the government of Great Britain, after complaining of these establishments as encroachments, and remonstrating against them, at length, in the year 1756, took up arms to resist and repel them; which produced a war between those two nations, wherein the Indian tribes inhabiting and holding the countries north-west of the Ohio, and on the Mississippi, above the mouth of the Ohio, were the allies of France, and the Indians known by the name of the Six Nations, or the Iroquois, and their tributaries and allies, were the allies of Great Britain; and that on the 10th of February 1763, this war was terminated by a definitive treaty of peace between Great Britain and France, and their allies, by which it was stipulated and agreed, that the river Mississippi, from its source to the Iberville, should for ever after form the boundary between the dominions of *Great Britain and those of France, in that part of North America, and between their respective allies there.

6th. That the government of Virginia, at and before the commencement of this war, and at all times after it became a royal government, claimed and exercised jurisdiction, with the knowledge and assent of the govern*242ment of Great Britain, in and over the country north-west of the river Ohio, and east of the Mississippi, as being included within the bounds and limits described and established for that colony, by the letters-patent of May 23d, 1609; and that in the year 1749, a grant of 600,000 acres of land, within the country north-west of the Ohio, and as part of Virginia, was made by the government of Great Britain to some of its subjects, by the name and style of the Ohio Company.

7th. That at and before the commencement of the war in 1756, and during its whole continuance, and at the time of the treaty of February 10th, 1763, the Indian tribes or nations, inhabiting the country north and northwest of the Ohio, and east of the Mississippi, as far east as the river falling into the Ohio called the Great Miami, were called and known by the name of the Western Confederacy of Indians, and were the allies of France in the war, but not her subjects, never having been in any manner conquered by her, and held the country in absolute sovereignty, as independent nations, both as to the right of jurisdiction and sovereignty, and the right of soil, except a few military posts, and a small territory around each, *which they had ceded to France, and she held under them, and among which were the aforesaid posts of Kaskaskias and Vincennes; and that these Indians, after the treaty, became the allies of Great Britain, living under her protection as they had before lived under that of France, but were free and independent, owing no allegiance to any foreign power whatever, and holding their lands in absolute property; the territories of the respective tribes being separated from each other, and distinguished by certain natural marks and boundaries, to the Indians well known; and each tribe claiming and exercising separate and absolute ownership, in and over its own territory, both as to the right of sovereignty and jurisdiction, and the right of soil.

8th. That among the tribes of Indians, thus holding and inhabiting the territory north and north-west of the Ohio, east of the Mississippi, and west of the Great Miami, within the limits of Virginia, as described in the letters-patent of May 23d, 1609, were certain independent tribes or nations, called the Illinois or Kaskaskias, and the Piankeshaw or Wabash Indians; the first of which consisted of three several tribes united into one, and called the Kaskaskias, the Pewarias and the Cahoquias; that the Illinois owned, held and inhabited, as their absolute and separate property, a large tract of country, within the last-mentioned limits, and situated on the Mississippi, Illinois and Kaskaskias rivers, and on the Ohio, below the mouth of the Wabash; and the Piankeshaws, another large tract of country, within the same *limits, and as their absolute and separate property, on the Wabash and Ohio rivers; and that these Indians remained in the sole and absolute ownership and possession of the country in question, until the sales made by them, in the manner hereinafter set forth.

9th. That on the termination of the war between Great Britain and France, the Illinois Indians, by the name of the Kaskaskias tribes of Indians, as fully representing all the Illinois tribes then remaining, made a treaty of peace with Great Britain, and a treaty of peace, limits and amity, under her mediation, with the Six Nations, or Iroquois, and their allies, then known and distinguished by the name of the Northern Confederacy of Indians; the Illinois being a part of the confederacy then known and distinguished by *243the name of the Southern Confederacy, and sometimes by that of the Western Confederacy.

10th. That on the 7th of October 1763, the king of Great Britain made and published a proclamation, for the better regulation of the countries ceded to Great Britain by that treaty, which proclamation is referred to, and made part of the case.

11th. That from time immemorial, and always up to the present time, all the Indian tribes, or nations of North America, and especially the Illinois and Piankeshaws, and other tribes holding, possessing and inhabiting the said countries north and north-west of the Ohio, east of the Mississippi, and west of the Great Miami, held their respective lands and territories, each in common, the individuals *of each tribe or nation holding the lands and territories of such tribe, in common with each other, and there being among them no separate property in the soil; and that their sole method of selling, granting and conveying their lands, whether to governments or individuals, always has been, from time immemorial, and now is, for certain chiefs of the tribe selling, to represent the whole tribe, in every part of the transaction; to make the contract, and execute the deed, on behalf of the whole tribe; to receive for it the consideration, whether in money or commodities, or both; and finally, to divide such consideration among the individuals of the tribe: and that the authority of the chiefs, so acting for the whole tribe, is attested by the presence and assent of the individuals composing the tribe, or some of them, and by the receipt by the individuals composing the tribe, of their respective shares of the price, and in no other manner.

12th. That on the 5th of July 1773, certain chiefs of the Illinois Indians, then jointly representing, acting for, and being duly authorized by that tribe, in the manner explained above, did, by their deed-poll, duly executed and delivered, and bearing date on that day, at the post of Kaskaskias, then being a British military post, and at a public counsel there held by them, for and on behalf of the said Illinois nation of Indians, with William Murray, of the Illinois country, merchant, acting for himself and for Moses Franks and Jacob Franks, of London, in Great Britain, David Franks, John Inglis, Bernard Gratz, Michael *Gratz, Alexander Ross, David Sproat and James Milligan, all of Philadelphia, in the province of Pennsylvania; Moses Franks, Andrew Hamilton, William Hamilton and Edmund Milne, of the same place; Joseph Simons, otherwise called Joseph Simon, and Levi Andrew Levi, of the town of Lancaster, in Pennsylvania; Thomas Minshall, of York county, in the same province; Robert Callender and William Thompson, of Cumberland county, in the same province; John Campbell, of Pittsburgh, in the same province; and George Castles and James Ramsay, of the Illinois country; and for a good and valuable consideration in the said deed stated, grant, bargain, sell, alien, lease, enfeoff and confirm to the said William Murray, Moses Franks, Jacob Franks, David Franks, John Inglis, Bernard Gratz, Michael Gratz, Alexander Ross, David Sproat, James Milligan, Andrew Hamilton, William Hamilton, Edmund Milne, Joseph Simons, otherwise called Joseph Simon, Levi Andrew Levi, Thomas Minshall, Robert Callender, William Thompson, John Campbell, George Castles and James Ramsay, their heirs and assigns for ever, in severalty, or to George the Third, then King of Great Britain *244and Ireland, his heirs and successors, for the use, benefit and behoof of the grantees, their heirs and assigns, in severalty, by whichever of those tenures they might most legally hold, all those two several tracts or parcels of land, situated, lying and being within the limits of Virginia, on the east of the Mississippi, north-west of the Ohio, and west of the Great Miami, and thus  butted *and bounded:

Beginning, for one of the said tracts, on the east side of the Mississippi, at the mouth of the Heron creek, called by the French the river of Mary, being about a league below the mouth of the Kaskaskias river, and running thence a northward of east course, in a direct line, back to the Hilly plains, about eight leagues more or less; thence the same course, in a direct line to the Crab Tree plains, about seventeen leagues more or less; thence the same course, in a direct line, to a remarkable place known by the name of the Big Buffalo Hoofs, about seventeen leagues more or less; thence the same course, in a direct line to the Salt Lick creek, about seven leagues more or less; then crossing the Salt Lick creek, about one league below the ancient Shawanese town, in an easterly, or a little to the north of east, course, in a direct line, to the river Ohio, about four leagues more or less; then down the Ohio, by its several courses, until it empties into the Mississippi, about thirty-five leagues more or less; and then up the Mississippi, by its several courses, to the place of the beginning, about thirty-three leagues more or less:

And beginning, for the other tract, on the Mississippi, at a point directly opposite to the mouth of Missouri, and running up the Mississippi, by its several courses, to the mouth of the Illinois, about six leagues more or less; and thence up the Illinois, by its several courses, to Chicagou or Garlic creek, about ninety leagues, more or less; thence nearly a northerly course, in a direct line, to a certain remarkable place, being the ground on which a *battle was fought, about forty or fifty years before that time, between the Pewaria and Renard Indians, about fifty leagues more or less; thence by the same course, in a direct line, to two remarkable hills, close together, in the middle of a large prairie or plain, about fourteen leagues more or less; thence a north of east course, in a direct line, to a remarkable spring, known by the Indians by the name of “Foggy Spring,” about fourteen leagues more or less; thence the same course, in a direct line, to a great mountain, to the north-west of the White Buffalo plain, about fifteen leagues more or less; and thence nearly a south-west course to the place of beginning, about forty leagues more or less:

To have and to hold the said two tracts of land, with all and singular their appurtenances, to the grantees, their heirs and assigns, for ever, in severalty, or to the king, his heirs and successors, to and for the use, benefit or behoof of the grantees, their heirs and assigns, for ever, in severalty: as will more fully appear by the said deed-poll, duly executed under the hands and seals of the grantors, and duly recorded at Kaskaskias, on the 2d of September 1773, in the office of Vicerault Lemerance, a notary-public, duly appointed and authorized. This deed, with the several certificates annexed to or indorsed on it, was set out at length in the case.

13th. That the consideration in this deed expressed, was of the value of $24,000, current money of the United States, and upwards, and was paid and delivered, at the time of the execution of the deed, by William Murray, one *245*of the grantees, in behalf of himself and the other grantees, to the Illinois Indians, who freely accepted it, and divided it among themselves; that the conferences in which the sale of these lands was agreed on and made, and in which it was agreed that the deed should be executed, were publicly held, for the space of a month, at the post of Kaskaskias, and were attended by many individuals of all the tribes of Illinois Indians, besides the chiefs named as grantors in the deed; that the whole transaction was open, public and fair, and the deed fully explained to the grantors and other Indians, by the sworn interpreters of the government, and fully understood by the grantors and other Indians, before it was executed; that the several witnesses to the deed, and the grantees named in it, were such persons, and of such quality and stations, respectively, as they are described to be in the deed, the attestation, and the other indorsements on it; that the grantees did duly authorize William Murray to act for and represent them, in the purchase of the lands, and the acceptance of the deed; and that the two tracts or parcels of land which it describes, and purports to grant, were then parts of the lands held, possessed and inhabited by the Illinois Indians, from time immemorial, in the manner already stated.

14th. That all the persons named as grantees in this deed, were, at the time of its execution, and long before, subjects of the crown of Great Britain, and residents of the several places named in the deed as their places of residence; and that *they entered into the land, under and by virtue of the deed, and became seised as the law requires.

15th. That on the 18th of October 1775, Tabac, and certain other Indians, all being chiefs of the Piankeshaws, and jointly representing, acting for, and duly authorized by that nation, in the manner stated above, did, by their deed-poll, duly executed, and bearing date on the day last mentioned, at the post of Vincennes, otherwise called post St. Vincent, then being a British military post, and at a public council there held by them, for and on behalf of the Piankeshaw Indians, with Louis Viviat, of the Illinois country, acting for himself, and for the Right Honorable John, Earl of Dunmore, then governor of Virginia, the Honorable John Murray, son of the said Earl, Moses Franks and Jacob Franks, of London, in Great Britain, Thomas Johnson, jr., and John Davidson, both of Annapolis, in Maryland, William Russel, Matthew Ridley, Robert Christie, sen., and Robert Christie, jr., of Baltimore town, in the same province, Peter Campbell, of Piscataway, in the same province, William Geddes, of Newtown Chester, in the same province, collector of his majesty’s customs, David Franks and Moses Franks, both of Philadelphia, in Pennsylvania, William Murray and Daniel Murray, of the Illinois country, Nicholas St. Martin and Joseph Page, of the same place, Francis Perthuis, late of Quebec, in Canada, but then of post St. Vincent, and for good and valuable considerations, in the deed-poll mentioned and enumerated, grant, bargain, sell, alien, enfeoff, release, ratify and confirm to the said Louis Viviat, and the other persons last mentioned, their heirs and assigns, equally to be divided, or to George III., then King of Great Britain and Ireland, his heirs and successors, for the use, benefit and behoof of all the above-mentioned grantees, their heirs and assigns, in severalty, by which ever of those tenures they might most legally hold, all those two several tracts of land, in the deed particularly described, situate, lying and being north-west of the Ohio, east of the Mis*246sissippi, and west of the Great Miami, within the limits of Virginia, and on both sides of the Ouabache, otherwise called the Wabash; which two tracts of land are contained respectively within the following metes and bounds, courses and distances, that is to say:

Beginning, for one of the said tracts, at the mouth of a rivulet called Riviere du Chat, or Cat river, where it empties itself into the Ouabache or Wabash, by its several courses, to a place called Point Coupee, about twelve leagues above post St. Vincent, being forty leagues, or thereabouts, in length, on the said river Ouabache, from the place of beginning, with forty leagues in width or breadth, on the east side, and thirty leagues in breadth or width, on the west side of that river, to be continued along from the place of beginning to Point Coupee. And beginning, for the other tract, at the mouth of White river, where it empties into the Ouabache, about twelve leagues below post St. Vincent, and running thence down the Ouabache, by its several courses, until it empties into the Ohio; being from White river to the Ohio, about fifty-three leagues in length, more or less, with forty *leagues in width or breadth on the east side, and thirty in width or breadth, on the west side of the Ouabache, to be continued along from the White river to the Ohio; with all the rights, liberties, privileges, hereditaments and appurtenances, to the said tract belonging:

To have and to hold to the grantees, their heirs and assigns, for ever, in severalty, or to the king, his heirs and successors, for the use, benefit and behoof of the grantees, their heirs and assigns; as will more fully appear by the deed itself, duly executed under the hands and seals of the grantors, and duly recorded at Kaskaskias, on the 5th of December 1775, in the office of Louis Bomer, a notary-public, duly appointed and authorized. This deed, with the several certificates annexed to or indorsed on it, was set out at length.

16th. That the consideration in this deed expressed, was of the value of $31,000, current money of the United States, and upwards, and was paid and delivered, at the time of the execution of the deed, by the grantee, Lewis Viviat, in behalf of himself and the other grantees, to the Piankeshaw Indians, who freely accepted it, and divided it among themselves; that the conferences in which the sale of these two tracts of land was agreed on and made, and in which it was agreed, that the deed should be executed, were publicly held for the space of a month, at the post of Vincennes, or post St. Vincent, and were attended by many individuals of the Piankeshaw nation of Indians, besides the chiefs named as grantors in the deed; that the whole transaction was open, public and fair, and the deed fully explained to the grantors and other Indians, by skillful interpreters, and fully understood by them, before it was executed; that it was executed in the presence of the several witnesses by whom it purports to have been attested, and was attested by them; that the grantees were all subjects of the crown of Great Britain, and were of such quality, station and residence, respectively, as they are described in the deed to be; that the grantees did duly authorize Lewis Viviat to act for, and represent them, in the purchase of these two tracts of land, and in the acceptance of the deed; that these tracts of land were then part of the lands held, possessed and inhabited by the Piankeshaw Indians, from time immemorial, as is stated above; and that the several grantees under this deed entered into the land which it purports to grant, and become seised as the law requires.

*24717th. That on the 6th of May 1776, the colony of Virginia threw off its dependence on the crown and government of Great Britain, and declared itself an independent state and government, with the limits prescribed and established by the letters-patent of May 23d, 1609, as curtailed and restricted by the letters-patent establishing the colonies of Pennsylvania, Maryland and Carolina, and by the treaty of February 10th, 1763, between Great Britain and France; which limits, so curtailed and restricted, the state of Virginia, by its constitution and form of government, declared should be and remain the limits of the state, and should bound its western and northwestern extent.

*18th. That on the 5th of October 1778, the general assembly of Virginia, having taken by arms the posts of Kaskaskias and Vincennes, or St. Vincent, from the British forces, by whom they were then held, and driven those forces from the country north-west of the Ohio, east of the Mississippi, and west of the Great Miami, did, by an act of assembly of that date, entitled, “an act for establishing the county of Illinois, and for the more effectual protection and defence thereof,” erect that country, with certain other portions of territory within the limits of the state, and northwest of the Ohio, into a county, by the name of the county of Illinois.

19th. That on the 20th of December 1783, the state of Virginia, by an act of assembly of that date, authorized their delegates in the congress of the United States, or such of them, to the number of three at least, as should be assembled in congress, on behalf of the state, and by proper deeds or instruments in writing, under their hands and seals, to convey, transfer, assign and make over to the United States, in congress assembled, for the benefit of the said states, all right, title and claim, as well of soil as jurisdiction, which Virginia had to the territory of tract of country within her limits, as defined and prescribed by the letters-patent of May 23d, 1609, and lying to the north-west of Ohio; subject to certain limitations and conditions in the act prescribed and specified; and that on the 1st of March 1784, Thomas Jefferson, Samuel Hardy, Arthur Lee and James Monroe, then being four of the delegates *of Virginia to the congress of the United States, did, by their deed-poll, under their hands and seals, in pursuance and execution of the authority to them given by this act of assembly, convey, transfer, assign and make over to the United States, in congress assembled, for the benefit of the said states, all right, title and claim, as well of soil as jurisdiction, which that state had to the territory north-west of the Ohio, with the reservations, limitations and conditions in the act of assembly prescribed; which cession the United States accepted.

20th. That on the 20th day of July, in the year of our Lord 1818, the United States, by their officers duly authorized for that purpose, did sell, grant and convey to the defendant in this action, William McIntosh, all those several tracts or parcels of land, containing 11,560 acres, and butted, bounded and described, as will fully appear in and by the patent for the said lands, duly executed, which was set out at length.

21st. That the lands described and granted in and by this patent, are situated within the state of Illinois, and are contained within the lines of the last, or second, of the two tracts, described and purporting to be granted and conveyed to Louis Viviat and others, by the deed of October 18th, 1775 and that William McIntosh, the defendant, entered upon these lands, *248under and by virtue of his patent, and became possessed thereof, before the institution of this suit.

22d. That Thomas Johnson, one of the grantees, *in and under the deed of October 18th, 1775, departed this life, on or about the 1st day of October 1819, seised of all his undivided part or share of and in the two several tracts of land, described and purporting to be granted and conveyed to him and others by that deed, having first duly made and published his last will and testament in writing, attested by three credible witnesses, which he left in full force, and by which he devised all his undivided share and part of those two tracts of land, to his son, Joshua Johnson, and his heirs, and his grandson, Thomas J. Graham, and his heirs, and the lessors of the plaintiff in this action, as tenants in common.

23d. That Joshua Johnson and Thomas J. Graham, the devisees, entered into the two tracts of land last above mentioned, under and by virtue of the will, and became thereof seised as the law requires. That Thomas Johnson, the grantee and devisor, during his whole life, and at the time of his death, was an inhabitant and citizen of the state of Maryland; that Joshua Johnson and Thomas J. Graham, the lessors of the plaintiff, now are, and always have been citizens of the same state; that the defendant, William McIntosh, now is, and at and before the time of bringing this action was, a citizen of the state of Illinois; and that the matter in dispute in this action is of the the value of $2000, current money of the United States, and upwards.

24th. And that neither William Murray, nor any other of the grantees under the deed of July the 5th, 1773, nor Louis Viviat, nor any other of the *grantees under the deed of October the 8th, 1775, nor any person for them, or any of them, ever obtained, or had the actual possession, under and by virtue of those deeds, or either of them, of any part of the lands in them, or either of them, described and purporting to be granted; but were prevented by the war of the American revolution, which soon after commenced, and by the disputes and troubles which preceded it, from obtaining such possession; and that since the termination of the war, and before it, they have repeatedly, and at various times, from the year 1781, till the year 1816, petitioned the congress of the United States to acknowledge and confirm their title to those lands, under the purchases and deeds in question, but without success.

Judgment being given for the defendant on the case stated, the plaintiffs brought this writ of error.

February 17th-19th.

The cause was argued by Harper and Webster, for the plaintiffs, and by Winder and Murray, for the defendants.

But as the arguments are so fully stated in the opinion of the court, it is deemed unnecessary to give anything more than the following summary.

On the part of the plaintiffs, it was contended: 1. That upon the facts stated in the case, the Piankeshaw Indians were the owners of the lands in dispute, at the time of executing the deed of October 10th, 1775, and had power to sell. But as the United States had purchased the same lands of the same Indians, both parties claim from the same source. It would seem, therefore, to be unnecessary, and merely speculative, to discuss *the question respecting the sort of title or ownership, which may be *249thought to belong to savage tribes, in the lands on which they live. Probably, however, their title by occupancy is to be respected, as much as that of an individual, obtained by the same right, in a civilized state. The circumstance, that the members of the society held in common, did not affect the strength of their title by occupancy. Grotius, de Jure Belli ac Pacis, lib. 2, c. 2, § 4; lib. 2, c. 24, § 9; Puffend. lib. 4, c. 5, § 1, 3. In the memorial or manifesto of the British government, in 1755, a right of soil in the Indians is admitted. It is also admitted in the treaties of Utrecht and Aix-la-Chapelle. The same opinion has been expressed by this court, Fletcher v. Peck, 6 Cranch 87; and by the supreme court of New York, Jackson v. Wood, 7 Johns. 296. In short, all, or nearly all, the lands in the United States, is holden under purchases from the Indian nations; and the only question in this case must be, whether it be competent to individuals to make such purchases, or whether that be the exclusive prerogative of government.

2. That the British king’s proclamation, of October 7th, 1763, could not affect this right of the Indians to sell; because they were not British subjects, nor in any manner bound by the authority of the British government, legislative or executive. And because, even admitting them to be British subjects, absolutely, or sub modo, they were still proprietors of the soil, and could not be divested of their rights of property, or any of its *incidents, by a mere act of the executive government, such as this proclamation.

3. That the proclamation of 1763 could not restrain the purchasers under these deeds from purchasing; because the lands lay within the limits of the colony of Virginia, of which, or of some other British colony, the purchasers, all being British subjects, were inhabitants. And because the king had not, within the limits of that colonial government, or any other, any power of prerogative legislation; which is confined to countries newly conquered, and remaining in the military possession of the monarch, as supreme chief of the military forces of the nation. The present claim has long been known to the government of the United States, and is mentioned in the Collection of Land Laws, published under public authority. The compiler of those laws supposes this title void, by virtue of the proclamation of 1763. But we have the positive authority of a solemn determination of the court of king’s bench, on this very proclamation, in the celebrated Grenada Case, for asserting that it could have no such effect. ( Campbell v. Hall, Cowp. 204.) This country being a new conquest, and a military possession, the crown might exercise legislative powers, until a local legislature was established. But the establishment of a government, establishes a system of laws, and excludes the power of legislating by proclamation. The proclamation could not have the force of law, within the chartered limits of Virginia. A proclamation, *that no person should purchase land in England or Canada, would be clearly void.

4. That the act of assembly of Virginia, passed in May 1779,(a) cannot *250affect the right of the plaintiffs, and others claiming under these deeds; because, on general principles, and by the constitution of Virginia, the legislature was not competent to take away private, vested rights, or appropriate private property to public use, under the circumstances of this case. And because the act is not *contained in the revisal of 1794, and must, therefore, be considered as repealed; and the repeal re-instates all rights that might have been affected by the act, although the territory, in which the lands in question lie, was ceded to the United States, before the repeal. The act of 1779 was passed, after the sales were made, and it cannot affect titles previously obtained. At the time of the purchases, there was no law of Virginia rendering such purchases void. If, therefore, the purchases were not affected by the proclamation of 1763, nor by the act of 1779, the question of their validity comes to the general inquiry, whether individuals, in Virginia, at the time of this purchase, could legally obtain Indian titles. In New England, titles have certainly been obtained in this mode. But whatever may be said on the more general question, and in reference to other colonies or states, the fact being, that in Virginia, there was no statute existing at the time, against such purchases, mere general considerations would not apply. It may be true, that in almost all the colonies, individual purchases from the Indians were illegal; but they were rendered so by express provisions of the local law. In Virginia, also, it may be true, that such purchases have generally been prohibited; but at the time the purchases now in question were made, there was no prohibitory law in existence. The old colonial laws on the subject had all been repealed. The act of 1779 was a private act, so far as respects this case. It is the same as if it had enacted, that these particular deeds were void. Such acts *bind only those who are parties to them, who submit their case to the legislature.

On the part of the defendants, it was insisted, that the uniform understanding and practice of European nations, and the settled law, as laid down by the tribunals of civilized states, denied the right of the Indians to be considered as independent communities, having a permanent property in the soil, capable of alienation to private individuals. They remained in a state of nature, and have never been admitted into the general society of nations. Penn v. Lord Baltimore, 1 Ves. 445; 2 Ruth. Inst. 29; Locke, Govern*251ment, B. 2, c. 7, § 87-9; c. 12, § 143; c. 9, § 123-30; Jefferson’s Notes 126; Colden’s Hist. Five Nations 2-16; Smith’s Hist. New York 35-41; Montesquieu, Esprit des Loix, liv. 18, c. 11, 12, 13; Smith’s Wealth of Nations, B. 5, c. 1. All the treaties and negotiations between the civilized powers of Europe and of this continent, from the treaty of Utrecht, in 1713, to that of Ghent, in 1814, have uniformly disregarded their supposed right to the territory included within the jurisdictional limits of those powers. 5 Annual Reg. 56, 233; 7 Niles’ Reg. 229. Not only has the practice of all civilized nations been in conformity with this doctrine, but the whole theory of their titles to lands in America, rests upon the hypothesis, that the Indians had no right of soil, as sovereign, independent states. Discovery is the foundation of title, in European nations, and this overlooks all proprietary rights in the natives. Marten’s Law of Nations 67, 60; Vattel, Droit des Gens, lib. 2, c. 7, § 83; lib. 1, c. 18, § 204-5. The sovereignty and *eminent domain thus acquired, necessarily precludes the idea of any other sovereignty existing within the same limits. The subjects of the discovering nation must necessarily be bound by the declared sense of their own government, as to the extent of this sovereignty, and the domain acquired with it. Even if it should be admitted, that the Indians were originally an independent people, they have ceased to be so. A nation that has passed under the dominion of another, is no longer a sovereign state. Vattel, lib. 1, c. 1, § 11. The same treaties and negotiations, before referred to, showed their dependent condition. Or, if it be admitted, that they are now independent and foreign states, the title of the plaintiffs would still be invalid: as grantees from the Indians, they must take according to their laws of property, and as Indians subjects. The law of every dominion affects all persons and property situate within it (Cowp. 204); and the Indians never had any idea of individual property in lands. It cannot be said, that the lands conveyed were disjoined from their dominion; because the grantees could not take the sovereignty and eminent domain to themselves.

Such then, being the nature of the Indian title to lands, the extent of their right of alienation must depend upon the laws of the dominion under which they live. They are subject to the sovereignty of the United States. The subjection proceeds from their residence within our territory *and jurisdiction. It is unnecessary to show that they are not citizens, in the ordinary sense of that term, since they are destitute of the most essential rights which belong to that character. They are of that class who are said by jurists not to be citizens, but perpetual inhabitants, with diminutive rights. Vattel, lib. 1, c. 19, § 213. The statutes of Virginia, and of all the other colonies, and of the United States, treat them as an inferior race of people, without the privileges of citizens, and under the perpetual protection and pupilage of the government. The act of Virginia of 1662, forbade purchases from the Indians, and it does not appear that it was ever repealed. The act of 1779 is rather to be regarded as a declaratory act, founded upon what has always been regarded as the settled law. These statutes seem to define sufficiently the nature of the Indian title to lands; a mere right of usufruct and habitation, without power of alienation. By the law of nature, they had not acquired a fixed property, capable of being transferred. The measure of property acquired by occupancy is determined, according to the law of *252nature, by the extent of men’s wants, and their capacity of using it to supply them. Grotius, lib. 2, c. 11; Barbeyr.; Puffend. lib. 4, c. 4, § 2, 4; 2 Bl. Com. 2; Puffend. lib. 4, c. 6, § 3; Locke on Government, B. 2, c. 5, § 26, 34-40. It is a violation of the rights of others, to exclude them from the use of what we do not want, and they have an occasion for. Upon this principle, the North American Indians could have acquired no proprietary interest in the vast tracts *of territory which they wandered over; and their right to the lands on which they hunted, could not be considered as superior to that which is acquired to the sea by fishing in it. The use in the one case, as well as the other, is not exclusive. Locke, c. 5, § 36-48; Grotius, lib. 2, c. 11, § 2; Montesq. tom. 2, p. 63; Chalmers’ Polit. Annals, 5; 6 Cranch 87. According to every theory of property, the Indians had no individual rights to land; nor had they any, collectively, or in their national capacity; for the lands occupied by each tribe were not used by them in such a manner as to prevent their being appropriated by a people of cultivators. All the proprietary rights of civilized nations on this continent are founded on this principle. The right derived from discovery and conquest can rest on other basis; and all existing titles depend on the fundamental title of the crown by discovery. The title of the crown (as representing the nation) passed to the colonists by charters, which were absolute grants of the soil; and it was a first principle in colonial law, that all titles must be derived from the crown. It is true, that, in some cases, purchases were made by the colonies from the Indians; but this was merely a measure of policy to prevent hostilities; and William Penn’s purchase, which was the most remarkable transaction of this kind, was not deemed to add to the strength of his title. Penn v. Lord Baltimore, 1 Ves. 444; Chalmers’ Polit. Annals 644; Sullivan’s Land Tit. c. 2 ; Smith’s Hist. N. Y. 145, 184. In most of the colonies, the *doctrine was received, that all titles to land must be derived exclusively from the crown, upon the principle that the settlers carried with them, not only all the rights, but all the duties of Englishmen; and particularly the laws of property, so far as they are suitable to their new condition. 1 Bl. Com. 107; 2 P. Wms. 75; 1 Salk. 411, 616. In New England alone, some lands have been held under Indian deeds. But this was an anomaly arising from peculiar local and political causes. Sulliv. Land Tit. 45.

As to the effect of the proclamation of 1763: if the Indians are to be regarded as independent sovereign states, then, by the treaty of peace, they became subject to the prerogative legislation of the crown, as a conquered people, in a territory acquired, jure belli, and ceded at the peace. Cowp. 204; 7 Co. 17 b; 2 Meriv. 143. If, on the contrary, this country be regarded as a royal colony, then the crown had a direct power of legislation; or, at least, the power of prescribing the limits within which grants of land and settlements should be made within the colony. The same practice always prevailed, under the proprietary governments, and has been followed by the government of the United States.

March 10th, 1823.

1

s. p. Mitchel v. United States, 9 Pet. 712; Clark v. Smith, 13 Id. 195; Lattimer v. Poteet, 14 Id. 4; United States v. Rillieux’s Heirs, 14 How. 189; Sparkman v. Porter, 1 Paine 457. And see Smith v. Stevens, 10 Wall. 321; United States v. Cook, 19 Id. 591; Beecher v. Wetherby, 95 U. S. 517, 525.

(a)

This statute is as follows: “An act for declaring and asserting the rights of this commonwealth, concerning purchasing lands from Indian natives. To remove and prevent all doubt concerning purchases of lands from the Indian natives, be it declared by the general assembly, that this commonwealth hath the exclusive right of *250pre-emption from the Indians, of all the lands within the limits of its own chartered territory, as described by the act and constitution of government, in the year 1776. That no person or persons whatsoever, have, or ever had, a right to purchase any lands within the same, from any Indian nation, except only persons duly authorized to make such purchases on the public account, formerly for the use and benefit of the colony, and lately of the commonwealth, and that such exclusive right or pre-emption will and ought to be maintained by this commonwealth, to the utmost of its power. And be it further declared and enacted, that every purchase of lands heretofore made, by, or on behalf of, the crown of England or Great Britain, from any Indian nation or nations, within the before-mentioned limits, doth and ought to inure for ever, to and for the use and benefit of this commonwealth, and to or for no other use or purpose whatsoever; and that all sales and deeds which have been, or shall be, made by any Indian or Indians, or by any Indian nation or nations, for lands within the said limits, to or for the separate use of any person or persons whatsoever, shall be, and the same are, hereby declared utterly void and of no effect.”

Marshall, Ch. J.,

delivered the opinion of the court. — The plaintiffs in this cause claim the land in their declaration mentioned, under two grants, purporting to be made, the first in 1773, and the last in 1775, by the chiefs of certain *Indian tribes, constituting *253the Illinois and the Piankeshaw nations; and the question is, whether this title can be recognised in the courts of the United States? The facts, as stated in the case agreed, show the authority of the chiefs who executed this conveyance, so far as it could be given by their own people; and likewise show, that the particular tribes for whom these chiefs acted were in rightful possession of the land they sold. The inquiry, therefore, is, in a great measure, confined to the power of Indians to give, and of private individuals to receive, a title, which can be sustained in the courts of this country.

As the right of society to prescribe those rules by which property may be acquired and preserved is not, and cannot, be drawn into question; as the title to lands, especially, is, and must be, admitted, to depend entirely on the law of the nation in which they lie; it will be necessary, in pursuing this inquiry, to examine, not simply those principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations, whose perfect independence is acknowledged; but those principles also which our own government has adopted in the particular case, and given us as the rule for our decision.

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an *ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves, that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated, as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented. Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.

*In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were, necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil, at their own will, to whomsoever they pleased, was denied by the original fundamental principle, *254that discovery gave exclusive title to those who made it. While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.

The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles. Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States, all show that she placed it on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title. France, also, founded her title to the vast territories she claimed in America on discovery. However *conciliatory her conduct to the natives may have been, she still asserted her right of dominion over a great extent of country, not actually settled by Frenchmen, and her exclusive right to acquire and dispose of the soil which remained in the occupation of Indians. Her monarch claimed all Canada and Acadie, as colonies of France, at a time when the French population was very inconsiderable, and the Indians occupied almost the whole country. He also claimed Louisiana, comprehending the immense territories watered by the Mississippi, and the rivers which empty into it, by the title of discovery. The letters-patent granted to the Sieur Demonts, in 1603, constitute him Lieutenant-General, and the representative of the king, in Acadie, which is described as stretching from the 40th to the 46th degree of north latitude; with authority to extend the power of the French over that country, and its inhabitants, to give laws to the people, to treat with the natives, and enforce the observance of treaties, and to parcel out, and give title to lands, according to his own judgment. The States of Holland also made acquisitions in America, and sustained their right on the common principle adopted by all Europe. They allege, as we are told by Smith, in his History of New York, that Henry Hudson, who sailed, as they say, under the orders of their East India Company, discovered the country from the Delaware to the Hudson, up which he sailed to the 43d degree of north latitude; and this country they claimed under the title acquired by this voyage. *Their first object was commercial, as appears by a grant made to a company of merchants in 1614; but in 1621, the States-General made, as we are told by Mr. Smith, a grant of the country to the West India Company, by the name of New Netherlands. The claim of the Dutch was always contested by the English; not because they questioned the title given by discovery, but because they insisted on being themselves the rightful claimants under that title. Their pretensions were finally decided by the sword.

No one of the powers of Europe gave its full assent to this principle, more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England. Two years afterwards, Cabot proceeded on this voyage, and discovered the continent of North America, along which he sailed as far south as Virginia. *255To this discovery, the English trace their title. In this first effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission, is confined to countries “ then unknown to all Christian people;" and of these countries, Cabot was empowered to take possession in the name of the king of England. Thus asserting a right to take possession, *notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery. The same principle continued to be recognised. The charter granted to Sir Humphrey Gilbert, in 1578, authorizes him to discover and take possession of such remote, heathen and barbarous lands, as were not actually possessed by any Christian prince or people. This charter was afterwards renewed to Sir Walter Raleigh, in nearly the same terms.

By the charter of 1606, under which the first permanent English settlement on this continent was made, James I. granted to Sir Thomas Gates and others, those territories in America, lying on the sea-coast, between the 34th and 45th degrees of north latitude, and which either belonged to that monarch, or were not then possessed by any other Christian prince or people. The grantees were divided into two companies, at their own request. The first, or southern colony, was directed to settle between the 34th and 41st degrees of north latitude; and the second, or northern colony, between the 38th and 45th degrees. In 1609, after some expensive and not very successful attempts at settlement had been made, a new and more enlarged charter was given by the crown to the first colony, in which the king granted to the “Treasurer and Company of Adventurers of the city of London for the first colony in Virginia,” in absolute property, the lands extending along the sea-coast four hundred miles, and *into the land throughout from sea to sea. This charter, which is a part of the special verdict in this cause, was annulled, so far as respected the rights of the company, by the judgment of the court of king’s bench, on a writ of quo warranto; but the whole effect allowed to this judgment was, to revest in the crown the powers of government, and the title to the lands within its limits.

At the solicitation of those who held under the grant to the second or northern colony, a new and more enlarged charter was granted to the Duke of Lenox and others, in 1620, who were denominated the Plymouth Company, conveying to them in absolute property all the lands between the 40th and 48th degrees of north latitude. Under this patent, New England has been in a great measure settled. The company conveyed to Henry Rosewell and others, in 1627, that territory which is now Massachusetts; and in 1628, a charter of incorporation, comprehending the powers of government, was granted to the purchasers. Great part of New England was granted by this company, which, at length, divided their remaining lands among themselves; and in 1635, surrendered their charter to the crown. A patent was granted to Gorges, for Maine, which was allotted to him in the division of property. All the grants made by the Plymouth Company, so far as we can learn, have been respected.

In pursuance of the same principle, the king, in 1664, granted to the Duke of York the country of New England, as far south as the Delaware *bay. His royal highness transferred New Jersey to Lord *256Berkeley and Sir George Carteret. In 1663, the crown granted to Lord Clarendon and others, the country lying between the 36th degree of north latitude and the river St. Mathes; and in 1666, the proprietors obtained from the crown a new charter, granting to them that province in the king’s dominions in North America, which lies from 36 degrees 30 minutes north latitude to the 29th degree, and from the Atlantic ocean to the south sea.

Thus has our whole country been granted by the crown, while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees. In those governments which were denominated royal, where the right to the soil was not vested in individuals, but remained in the crown, or was vested in the colonial government, the king claimed and exercised the light of granting lands, and of dismembering the government, at his will. The grants made out of the two original colonies, after the resumption of their charters by the crown, are examples of this. The governments of New England, New York, New Jersey, Pennsylvania, Maryland, and a part of Carolina, were thus created. In all of them, the soil, at the time the grants were made, was occupied by the Indians. Yet almost every title within those governments is dependent on these grants. In some instances, the soil was conveyed by the crown, unaccompanied by the powers of government, as in the case of the northern neck of Virginia. It has never *been objected to this, nor to any other similar grant, that the title as well as possession was in the Indians when it was made, and that it passed nothing on that account.

These various patents cannot be considered as nullities; nor can they be limited to a mere grant of the powers of government. A charter intended to convey political power only, would never contain words expressly granting the land, the soil and the waters. Some of them purport to convey the soil alone; and in those cases in which the powers of government, as well as the soil, are conveyed to individuals, the crown has always acknowledged itself to be bound by the grant. Though the power to dismember regal governments was asserted and exercised, the power to dismember proprietary governments was not claimed; and in some instances, even after the powers of government were revested in the crown, the title of the proprietors to the soil was respected. Charles II. was extremely anxious to acquire the property of Maine, but the grantees sold it to Massachusetts, and he did not venture to contest the right of that colony to the soil. The Carolinas were originally proprietary governments. In 1721, a revolution was effected by the people, who shook off their obedience to the proprietors, and declared their dependence immediately on the crown. The king, however, purchased the title of those who were disposed to sell. One of them, Lord Carteret, surrendered his interest in the government, but retained his title to the soil. That *title was respected until the revolution, when it was forfeited by the laws of war.

Further proofs of the extent to which this principle has been recognised, will be found in the history of the wars, negotiations and treaties, which the different nations, claiming territory in America, have carried on, and held with each other. The contests between the cabinets of Versailles and Madrid, respecting the territory on the northern coast of the gulf of Mexico, were fierce and bloody; and continued, until the establishment of a Bourbon on the throne of Spain, produced such amicable dispositions in the two *257crowns, as to suspend or terminate them. Between France and Great Britain, whose discoveries as well as settlements were nearly contemporaneous, contests for the country, actually covered by the Indians, began, as soon as their settlements approached each other, and were continued until finally settled in the year 1763, by the treaty of Paris. Each nation had granted, and partially settled the country, denominated by the French, Acadie, and by the English, Nova Scotia. By the 12th article of the treaty of Utrecht, made in 1703, his most Christian Majesty ceded to the Queen of Great Britain, “all Nova Scotia or Acadie, with its ancient boundaries.” A great part of the ceded territory was in the possession of the Indians, and the extent of the cession could not be adjusted by the commissioners to whom it was to be referred. The treaty of Aix-la-Chapelle, which was made *on the principle of the status ante bellum, did not remove this subject of controversy. Commissioners for its adjustment were appointed, whose very able and elaborate, though unsuccessful, arguments, in favor of the title of their respective sovereigns, show how entirely each relied on the title given by discovery to lands remaining in the possession of Indians.

After the termination of this fruitless discussion, the subject was transferred to Europe, and taken up by the cabinets of Versailles and London. This controversy embraced not only the boundaries of New England, Nova Scotia, and that part of Canada which adjoined those colonies, but embraced our whole western country also. France contended not only that the St. Lawrence was to be considered as the centre of Canada, but that the Ohio was within that colony. She founded this claim on discovery, and on having used that river for the transportation of troops, in a war with some southern Indians. This river was comprehended in the chartered limits of Virginia; but though the right of England to a reasonable extent of country, in virtue of her discovery of the sea-coast, and of the settlements she made on it, was not to be questioned, her claim of all the lands to the Pacific ocean, because she had discovered the country washed by the Atlantic, might, without derogating from the principle recognised by all, be deemed extravagant. It interfered, too, with the claims of France, founded on the same principle. She, therefore, sought to strengthen her original title to *the lands in controversy, by insisting that it had been acknowledged by France, in the 15th article of the treaty of Utrecht. The dispute respecting the construction of that article has no tendency to impair the principle, that discovery gave a title to lands still remaining in the possession of the Indians. Whichever title prevailed, it was still a title to lands occupied by the Indians, whose right of occupancy neither controverted, and neither had then extinguished.

These conflicting claims produced a long and bloody war, which was terminated by the conquest of the whole country east of the Mississippi. In the treaty of 1763, France ceded and guarantied to Great Britain, all Nova Scotia or Acadie, and Canada, with their dependencies; and it was agreed, that the boundaries between the territories of the two nations, in America, should be irrevocably fixed by a line drawn from the source of the Mississippi, through the middle of that river and the lakes Maurepas and Ponchartrain, to the sea. This treaty expressly cedes, and has always been understood to cede, the whole country, on the English side of the dividing line, between the two nations, although a great and valuable part of it was *258occupied by the Indians. Great Britain, on her part, surrendered to France all her pretensions to the country west of the Mississippi. It has never been supposed, that she surrendered nothing, although she was not in actual possession of a foot of land. She surrendered all right to acquire the country; and any after-attempt to purchase it from the Indians, would have been considered *and treated as an invasion of the territories of France. By the 20th article of the same treaty, Spain ceded Florida, with its dependencies, and all the country she claimed east or south-east of the Mississippi, to Great Britain. Great part of this territory also was in possession of the Indians. By a secret treaty, which was executed about the same time, France ceded Louisiana to Spain; and Spain has since retroceded the same country to France. At the time both of its cession and retrocession, it was occupied, chiefly, by the Indians. Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognised in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians. Have the American states rejected or adopted this principle?

By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the “propriety and territorial rights of the United States,” whose boundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to these states. We had before taken possession of them, by declaring independence; but neither the declaration of independence, nor the treaty confirming it, could give us more than that which we before possessed, or to which Great Britain was before entitled. It *has never been doubted, that either the United States, or the several states, had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right, was vested in that government which might constitutionally exercise it.

Virginia, particularly, within whose chartered limits the land in controversy lay, passed an act, in the year 1779, declaring her “exclusive right of pre-emption from the Indians, of all the lands within the limits of her own chartered territory, and that no person or persons whatsoever, have, or ever had, a right to purchase any lands within the same, from any Indian nation, except only persons duly authorized to make such purchase; formerly for the use and benefit of the colony, and lately for the commonwealth.” The act then proceeds to annul all deeds made by Indians to individuals, for the private use of the purchasers. Without ascribing to this act the power of annulling vested rights, or admitting it to countervail the testimony furnished by the marginal note opposite to the title of the law, forbidding purchases from the Indians, in the revisals of the Virginia statutes, stating that law to be repealed, it may safely be considered as an unequivocal affirmance, on the part of Virginia, of the broad principle which had always been maintained, that the exclusive right to purchase from the Indians resided in the government. In pursuance of the same idea, Virginia proceeded, at the same session, to open her *land-office, for the sale of that country which now constitutes Kentucky, a country, every acre of which was then claimed and possessed by Indians, who maintained their title with as much persevering courage as was ever manifested by any people.

*259The states, having within their chartered limits different portions of territory covered by Indians, ceded that territory, generally, to the United States, on conditions expressed in their deeds of cession, which demonstrate the opinion, that they ceded the soil as well as jurisdiction, and that in doing so, they granted a productive fund to the government of the Union. The lands in controversy lay within the chartered limits of Virginia, and were ceded with the whole country north-west of the river Ohio. This grant contained reservations and stipulations, which could only be made by the owners of the soil; and concluded with a stipulation, that “all the lands in the ceded territory, not reserved, should be considered as a common fund, for the use and benefit of such of the United States as have become, or shall become, members of the confederation,” &e., “ according to their usual respective proportions in the general charge and expenditure, and shall be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever.” The ceded territory was occupied by numerous and warlike tribes of Indians; but the exclusive right of the United States to extinguish their title, and to grant the soil, has never, we believe, been doubted.

*After these states became independent, a controversy subsisted between them and Spain respecting boundary. By the treaty of 1795, this controversy was adjusted, and Spain ceded to the United States the territory in question. This territory, though claimed by both nations, was chiefly in the actual occupation of Indians. The magnificent purchase of Louisiana, was the purchase from France of a country almost entirely occupied by numerous tribes of Indians, who are in fact independent. Yet, any attempt of others to intrude into that country, would be considered as an aggression which would justify war. Our late acquisitions from Spain are of the same character; and the negotiations which preceded those acquisitions, recognise and elucidate the principle which has been received as the foundation of all European title in America.

The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise. The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in the crown or its grantees. The validity of the titles given by either has never *been questioned in our courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence to any right which may conflict with and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.

We will not enter into the controversy, whether agriculturists, merchants *260and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. The British government, which was then our government, and whose rights have passed to the United States, asserted a title to all the lands occupied by Indians, within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the titles which occupancy gave to them. These claims have been maintained and established as far west as the river Mississippi, by the sword. The title *to a vast portion of the lands we now hold, orignates in them. It is not for the courts of this country to question the validity of this title, or to sustain one which is incompatible with it.

Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them. The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people. Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connections, and united by force to strangers. When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, *or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him ; and he cannot neglect them, without injury to his fame, and hazard to his power.

But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high-spirited as they were fierce, and were ready to repel by arms every attempt on their independence. What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country, and relinquishing their pompous claims to it, or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct society, or of remaining in their neighborhood, and exposing themselves and their families to the perpetual hazard of being massacred. Frequent and bloody wars, in which the whites were not always the aggressors, unavoida*261bly ensued. European policy, numbers and skill prevailed; as the white population advanced, that of the Indians necessarily receded; the country in the immediate neighborhood of agriculturists became unfit for them; the game fled *into thicker and more unbroken forests, and the Indians followed. The soil, to which the crown originally claimed title, being no longer occupied by its ancient inhabitants, was parcelled out according to the will of the sovereign power, and taken possession of by persons who claimed immediately from the crown, or mediately, through its grantees or deputies.

That law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application to a people under such circumstances. The resort to some new and different rule, better adapted to the actual state of things, was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty. However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be *adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by courts of justice.

This question is not entirely new in this court. The case of Fletcher v. Peck, grew out of a sale made by the state of Georgia, of a large tract of country within the limits of that state, the grant of which was afterwards resumed. The action was brought by a sub-purchaser, on the contract of sale, and one of the covenants in the deed was, that the state of Georgia was, at the time of sale, seised in fee of the premises. The real question presented by the issue was, whether the seisin in fee was in the state of Georgia, or in the United States. After stating, that this controversy between the several states and the United States had been compromised, the court thought it necessary to notice the Indian title, which, although entitled to the respect of all courts, until it should be legitimately extinguished, was declared not to be such as to be absolutely repugnant to a seisin in fee on the part of the state. This opinion conforms precisely to the principle which has been supposed to be recognised by all European governments, from the first settlement of America. The absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring. Such a right is no more incompatible with a seisin in fee, than a lease for years, and might as effectually bar an ejectment.

Another view has been taken of this question, *which deserves to be considered. The title of the crown, whatever it might be, could be acquired only by a conveyance from the crown. If an individual might *262extinguish the Indian title, for his own benefit, or, in other words, might purchase it, still he could acquire only that title. Admitting their power to change their laws or usages, so far as to allow an individual to separate a portion of their lands from the common stock, and hold it in severalty, still it is a part of their territory, and is held under them, by a title dependent on their laws. The grant derives its efficacy from their will; and, if they choose to resume it, and make a different disposition of the land, the court of the United States cannot interpose for the protection of the title. The person who purchases lands from the Indians, within their territory, incorporates himself with them, so far as respects the property purchased; holds their title under their protection, and subject to their laws. If they annul the grant, we know of no tribunal which can revise and set aside the proceeding. We know of no principle which can distinguish this case from a grant made to a native Indian, authorizing him to hold a particular tract of land in severalty. As such a grant could not separate the Indian from his nation, nor give a title which our courts could distinguish from the title of his tribe, as it might still be conquered from, or ceded by his tribe, we can perceive no legal principle which will authorize a court to say, that different consequences are attached to this purchase, because it was made by a stranger. By the treaties concluded *between the United States and the Indian nations, whose title the plaintiffs claim, the country comprehending the lands in controversy has been ceded to the United States, without any reservation of their title. These nations had been at war with the United States, and had an unquestionable right to annul any grant they had made to American citizens. Their cession of the country, without a reservation of this land, affords a fair presumption, that they considered it as of no validity. They ceded to the United States this very property, after having used it in common with other lands, as their own, from the date of their deeds to the time of cession; and the attempt now made, is to set up their title against that of the United States.

The proclamation issued by the king of Great Britain, in 1763, has been considered, and we think, with reason, as constituting an additional objection to the title of the plaintiffs. By that proclamation, the crown reserved under its own dominion and protection, for the use of the Indians, “all the land and territories lying to the westward of the sources of the rivers which fall into the sea from the west and north-west,” and strictly forbade all British subjects from making any purchases or settlements whatever, or taking possession of the reserved lands. It has been contended, that, in this proclamation, the king transcended his constitutional powers; and the case of Campbell v. Hall (reported by Cowper), is relied on to support this position. *It is supposed to be a principle of universal law, that, if an uninhabited country be discovered by a number of individuals, who acknowledge no connection with, and owe no allegiance to, any government whatever, the country becomes the property of the discoverers, so far at least as they can use it. They acquire a title in common. The title of the whole land is in the whole society. It is to be divided and parcelled out according to the will of the society, expressed by the whole body, or by that organ which is authorized by the whole to express it. If the discovery be made, and possession of the country be taken, under the authority of an existing government, which is acknowledged by the emigrants, it is sup*263posed to be equally well settled, that the discovery is made for the whole nation, that the country becomes a part of the nation, and that the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains, by that organ in which all vacant territory is vested by law.

According to the theory of the British constitution, all vacant lands are vested in the crown, as representing the nation; and the exclusive power to grant them is admitted to reside in the crown, as a branch of the royal prerogative. It has been already shown, that this principle was as fully recognised in America as in the islands of Great Britain. All the lands we hold were originally granted by the crown; and the establishment of a regal government has never been considered as *impairing its right to grant lands within the chartered limits of such colony. In addition to the proof of this principle, furnished by the immense grants, already mentioned, of lands lying within the chartered limits of Virginia, the continuing right of the crown to grant lands lying within that colony was always admitted. A title might be obtained, either by making an entry with the surveyor of a county, in pursuance of law, or by an order of the governor in council, who was the deputy of the king, or by an immediate grant from the crown. In Virginia, therefore, as well as elsewhere in the British dominions, the complete title of the crown to vacant lands was acknowledged. So far as respected the authority of the crown, no distinction was taken between vacant lands and lands occupied by the Indians. The title, subject only to the right of occupancy by the Indians, was admitted to be in the king, as was his right to grant that title. The lands, then, to which this proclamation referred, were lands which the king had a right to grant, or to reserve for the Indians.

According to the theory of the British constitution, the royal prerogative is very extensive, so far as respects the political relations between Great Britain and foreign nations. The peculiar situation of the Indians, necessarily considered, in some respects, as a dependent, and in some respects, as a distinct people, occupying a country claimed by Great Britain, and yet too powerful and brave not to be dreaded as formidable enemies, required, that means should be adopted for *the preservation of peace; and that their friendship should be secured by quieting their alarms for their property. This was to be effected by restraining the encroachments of the whites; and the power to do this was never, we believe, denied by the colonies to the crown.

In the case of Campbell v. Hall, that part of the proclamation was determined to be illegal, which imposed a tax on a conquered province, after a government had been bestowed upon it. The correctness of this decision cannot be questioned, but its application to the case at bar cannot be admitted. Since the expulsion of the Stuart family, the power of imposing taxes, by proclamation, has never been claimed as a branch of regal prerogative; but the powers of granting, or refusing to grant, vacant lands, and of restraining encroachments on the Indians, have always been asserted and admitted. The authority of this proclamation, so far as it respected this continent, has never been denied, and the titles it gave to lands have always been sustained in our courts.

In the argument of this cause, the counsel for the plaintiffs have relied *264very much on the opinions expressed by men holding offices of trust, and on various proceedings in America, to sustain titles to land derived from the Indians. The collection of claims to lands lying in the western country, made in the 1st volume of the Laws of the United States, has been referred to; but we find nothing in that collection to support the argument. Most of the titles were derived *from persons professing to act under the authority of the government existing at the time; and the two grants under which the plaintiffs claim, are supposed, by the person under whose inspection the collection was made, to be void, because forbidden by the royal proclamation of 1763. It is not unworthy of remark, that the usual mode adopted by the Indians for granting lands to individuals, has been to reserve them in a treaty, or to grant them under the sanction of the commissioners with whom the treaty was negotiated. The practice, in such case, to grant to the crown, for the use of the individual, is some evidence of a general understanding, that the validity even of such a grant depended on its receiving the royal sanction.

The controversy between the colony of Connecticut and the Mohegan Indians, depended on the nature and extent of a grant made by those Indians to the colony; on the nature and extent of the reservations made by the Indians, in their several deeds and treaties, which were alleged to be recognised by the legitimate authority; and on the violation by the colony of rights thus reserved and secured. We do not perceive, in that case, any assertion of the principle, that individuals might obtain a complete and valid title from the Indians.

It has been stated, that in the memorial transmitted from the Cabinet of London to that of Versailles, during the controversy between the two nations, respecting boundary, which took place in 1755, the Indian right to the soil is recognised. *But this recognition was made with reference to their character as Indians, and for the purpose of showing that they were fixed to a particular territory. It was made for the purpose of sustaining the claim of his Britannic majesty to dominion over them.

The opinion of the attorney and solicitor-general, Pratt and Yorke, have been adduced to prove, that, in the opinion of those great law-officers, the Indian grant could convey a title to the soil, without a patent emanating from the crown. The opinion of those persons would certainly be of great authority on such a question, and we were not a little surprised, when it was read, at the doctrine it seemed to advance. An opinion so contrary to the whole practice of the crown, and to the uniform opinions given on all other occasions by its great law-officers, ought to be very explicit, and accompanied by the circumstances under which it was given, and to which it was applied, before we can be assured that it is properly understood. In a pamphlet, written for the purpose of asserting the Indian title, styled “Plain Facts,” the same opinion is quoted, and is said to relate to purchases made in the East Indies. It is, of course, entirely inapplicable to purchases made in America. Chalmers, in whose collection this opinion is found, does not say to whom it applies; but there is reason to believe, that the author of “Plain Facts” is, in this respect, correct. The opinion commences thus: “In respect to such places as have been, or shall be acquired, by treaty or grant, from any of the Indian princes or governments, *your majesty's letters-patent are not necessary." The words *265“princes or governments,” are usually applied to the East Indians, but not to those of North America. We speak of their sachems, their warriors, their chiefmen, their nations or tribes, not of their “princes or governments.” The question on which the opinion was given, too, and to which it relates, was, whether the king’s subjects carry with them the common law, wherever they may form settlements. The opinion is given with a view to this point, and its object must be kept in mind while construing its expressions.

Much reliance is also placed on the fact, that many tracts are now held in the United States, under the Indian title, the validity of which is not questioned. Before the importance attached to this fact is conceded, the circumstances under which such grants were obtained, and such titles are supported, ought to be considered. These lands lie chiefly in the eastern states. It is known that the Plymouth Company made many extensive grants, which, from their ignorance of the country, interfered with each other. It is also known, that Mason, to whom New Hampshire, and Gorges, to whom Maine was granted, found great difficulty in managing such unwieldy property. The country was settled by emigrants, some from Europe, but chiefly from Massachusetts, who took possession of lands they found unoccupied, and secured themselves in that possession by the best means in their power. The disturbances in *England, and the civil war and revolution which followed those disturbances, prevented any interference on the part of the mother country, and the proprietors were unable to maintain their title. In the meantime, Massachusetts claimed the country and governed it. As her claim was adversary to that of the proprietors, she encouraged the settlement of persons made under her authority, and encouraged, likewise, their securing themselves in possession, by purchasing the acquiescence and forbearance of the Indians.

After the restoration of Charles II., Gorges and Mason, when they attempted to establish their title, found themselves opposed by men, who held under Massachusetts, and under the Indians. The title of the proprietors was resisted; and though, in some cases compromises were made, and in some, the opinion of a court was given ultimately in their favor, the juries found uniformly against them. They became wearied with the struggle, and sold their property. The titles held under the Indians, were sanctioned by length of possession; but there is no case, so far as we are informed, of a judicial decision in their favor.

Much reliance has also been placed on a recital contained in the charter of Rhode Island, and on a letter addressed to the governors of the neigh boring colonies, by the king’s command, in which some expressions are inserted, indicating the royal approbation of titles acquired from the Indians.

The charter to Rhode Island recites, “that the said John Clark, and others, had transplanted *themselves into the midst of the Indian nations, and were seised and possessed, by purchase and consent of the said natives, to their full content, of such lands,” &c. And the letter recites, that “Thomas Chifflinch and others, having, in the right of Major Asperton, a just propriety in the Narraghanset country, in New England, by grants from the native princes of that country, and being desirous to improve it into an English colony,” &c., “are yet daily disturbed.” The impression this language might make, if viewed apart from the circum*266stances under which it was employed, will be effaced, when considered in connection with those circumstances.

In the year 1635, the Plymouth Company surrendered their charter to the crown. About the same time, the religious dissensions of Massachusetts expelled from that colony several societies of individuals, one of which settled in Rhode Island, on lands purchased from the Indians. They were not within the chartered limits of Massachusetts, and the English government was too much occupied at home, to bestow its attention on this subject. There existed no authority to arrest their settlement of the country. If they obtained the Indian title, there were none to assert the title of the crown. Under these circumstances, the settlement became considerable. Individuals acquired separate property in lands which they cultivated and improved; a government was established among themselves; and no power existed in America which could rightfully interfere with it.

On the restoration of Charles II., this small society *hastened to acknowledge his authority, and, to solicit his confirmation of their title to the soil, and to jurisdiction over the country. Their solicitations were successful, and a charter was granted to them, containing the recital which has been mentioned. It is obvious, that this transaction can amount to no acknowledgment, that the Indian grant could convey a title paramount to that of the crown, or could, in itself, constitute a complete title. On the contrary, the charter of the crown was considered as indispensable to its completion.

It has never been contended, that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right. The object of the crown was, to settle the sea-coast of America; and when a portion of it was settled, without violating the rights of others, by persons professing their loyalty, and soliciting the royal sanction of an act, the consequences of which were ascertained to be beneficial, it would have been as unwise as ungracious, to expel them from their habitations, because they had obtained the Indian title, otherwise than through the agency of government. The very grant of a charter is an assertion of the title of the crown, and its words convey the same idea. The country granted, is said to be “ our island called Rhode Island;" and the charter contains an actual grant of the soil, as well as of the powers of government.

*The letter was written a few months before the charter was issued, apparently at the request of the agents of the intended colony, for the sole purpose of preventing the trespasses of neighbors, who where disposed to claim some authority over them. The king, being willing himself to ratify and confirm their title, was, of course, inclined to quiet them in their possession. This charter, and this letter, certainly sanction a previous unauthorized purchase from Indians, under the circumstances attending that particular purchase, but are far from supporting the general proposition, that a title acquired from the Indians would be valid against a title acquired from the crown, or without the confirmation of the crown.

The acts of the several colonial assemblies, prohibiting purchases from the Indians, have also been relied on, as proving, that, independent of such prohibitions, Indian deeds would be valid. But, we think, this fact, at most, *267equivocal. While the existence of such purchases would justify their prohibition, even by colonies which considered Indian deeds as previously invalid, the fact that such acts have been generally passed, is strong evidence of the general opinion, that such purchases are opposed by the soundest principles of wisdom and national policy.

After bestowing on this subject a degree of attention which was more required by the magnitude of the interest in litigation, and the able and elaborate arguments of the bar, than by its intrinsic difficulty, the court is decidedly of opinion, that the plaintiffs do not exhibit a title which can *be sustained in the courts of the United States; and that there is no error in the judgment which was rendered against them in the district court of Illinois.

Judgment affirmed, with costs.

Samuel A. Worcester, Plaintiff in Error v. The State of Georgia.

A writ of error was issued to “ the judges of the superior court for the county of Gwinnett in the 6tale of Georgia,” commanding them to send to the supreme court of the United States, the íecord and proceedings in the said superior-court of the county of Gwinnett, between the state of Georgia, plaintiff, and Samuel A. Worcester, defendant, on an indjctment in that court.. The record of the court of Gwinnett was returned, certified by the clerk of the court, and was also authenticated by the seal of the court. It was returned with, and annexed to, a writ of error issued in regalar 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.

By the court: The judicial .act, so far as it prescribes the mode of proceeding, appears' to have been literally, pursued. In February 1797, a rule was made on this subject, in the following words: it is-ordered by the court, that the clerk of the court to which any writ of error shall be directed, may make return of the same by.transmitting a true copy of the record, and of ail proceedings in.' the same, under bis 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.

The plaintiff in error was indicted in the supreme court for the county of Gwinnett in the state of Georgia, “for residing, on the 35th July 1831, in that part of the Cherokee nation attached by the laws of the state of Georgia to that county, without a license or permit from the governor of the state, or from any one authorised to grant it, and without having- taken the oath to support and defend the constitution and laws Of the state of Georgia, and uprightly to demean, himself, as a citizen thereof, contrary to the laws of the said state.” To this indictment he pleaded that he was, on the 15th July 1831, in the Cherokee nation, out of the jurisdiction of the court of Gwinnett county; that he was a citizen of Vermont, and entered the Cherokee nation as a missionary under the authority of the president of the United States, and has not been required' by him to leave it, and that with the permission and approval of the Cherokee nation he was engaged in preaching the gospel: that the state of Georgia ought not to maintain the prosecution, as several treaties had been entered into by the United States with the Cherokee nation, by which that nation was acknowledged to be a sovereign nation, and by which the territory occupied by them was guarantied to them by the United States; and that the laws of Georgia, under which the plaintiff in error was indicted, are repugnant to the treaties, and unconstitutional and void, and also that they are repugnant to the act of congress of March 1802, entitled “ an act to regulate trade and intercourse with, the Indian tribes. T,he superior c'ourt of Gwinnett overruled the plea, and the plaintiff in error was tried and convicted, and sentenced “ to hard labour in the penitentiary for four years.” Held, that this was a case in which the supreme court of the United States had jurisdiction by writ of error, under *516the twenty-fifth section of the “ act to establish the judicial courts of the United States” passed in 1789.

The indictment and plea in this case draw in question the validity of the treaties rnade by the United Stales 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 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. The record,- according to the judiciary act and the rule and practice of the court, is regularly before the court.

The act of the legislature of Georgia, passed 22d December 1830, entitled “ an act to prevent the exercise of assumed and arbitrary power by all persons, under pretext ,of authority from the Cherokee Indians,” &e. enacts that “all white persons, residing within the limits of the Cherokee nation on the 1st day of March next, or at anytime 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 tire enforcement of the laws in force within the Cherokee nation, to raise and organise 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 tp 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 attested, before a justice of the peace, judge of the superior, justice of intetior court of this state, to'be dealt with according to law.” The extraterritorial power of every legislature being limited in its action to its own citizens or subjects, the vety passage of this act is an assertion'of jurisdiction over the Cherokee nation, and of tire rights and powers consequent thereto-

The principle, “ that discovery of pails of the continent of America gave title to the government by whose subjects, or by whose authority it was made, against . all other European governments, which title might be consummated by possession,” 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 tight on a denial of the right of the possessor to sell.

Therelation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this pre*517emptive 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 origihal 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 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.

Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt, ort 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 lands 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 third article of the treaty of Hopewell 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 tréáties, 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 genera! law of European sovereigns, respecting their claims in America, limited the intercourse of Indians, in a 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 irom 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 pe/ceived 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. *518it merely bound (he 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 favour and protection. The Cherokees acknowledge themselves to be imder 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.

So with respect to the words “ hunting grounds.” Hunting was at that time the principal occupation of the Indians, arid-their land was more used for fhat 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. 7 hey had never been supposed to imply a right in the British government to take their lands, or to interfere with their internal government.

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 Jo, be drawn from them is, that the United States considered the Cherokees as' a nation.

The ninth article is in these vvords: “ 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,” into a surrender of self government would be 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 oppressians.” 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, is the cession of their lands, and securlty against intruders on them. . Is it credible, that they could have considered themselves as 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 more interesting subject, to have divested themselves of the right of self'government on subjects not connected with trade. Such a measure could not be *519« for their benefit and- comfort,” or for “ the prevention of injuries and oppression.” Such a construction would be inconsistent with the spirit 6f 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 á 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, apd 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 Holston, negotiated with the Cherokees in July 1791; explicitly recognising the national character of the Cherokees, and their right of self-government; thus guarantying their lands; assuming the duty of protection; and of course pledging 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 Drovide for the punishment of intruders.

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. •

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 powér, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particplar 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 who are capable of making treaties. The words “ treaty” and “ nation” are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians,' as we have applied them to the other natións of the earth. They are applied, to all in the same sense.

Georgia, herself, has furnished conclusive evidence .that her former opinions on this subject concurred with those entertained by her sister states, and by the government of the United States. Vaiious acts of her legislature have been cited in the argument, including the contract of cession made in the year 1802, . all tending to prove her acquiescence in the universal conviction that the Indian nations possessed a.full right to the lands they occupied, until that right should be extinguished by the United States with their consent; that their territory was separated from that of any state within whose chartered limits they might reside, by a boundary line, established by treaties: that, witlrin their boundary, they possessed rights with which no state could interfere: and that the whole power of regulating the intercourse with them was vested in the United States.

*520Ia opposition to the original right, possessed by the undisputed occupants of every country, to this recognition of that right, which is evidenced by our history in every change through which we have passed, are placed the charters granted by the monarch of a distant and distinct region, parcelling out a territory in possession of others, whom he could not remove, and did not attempt to remove, and the cession made of his claims, by the treaty of peace. The actual state of. things at the time, and all history since, explain these charters; and the king of Great Britain, at the treaty of peace, could cede only what belonged to his crown. These newly asserted titles can derive no aid from the articles so often repeated in Indian treaties, extending to them, first, the protection of Great Britain, and afterwards that of the United States. These articles are associated with others,,recognising their title to self-government. The very fact of repeated treaties with them recognises it; and the settled doctrine of the law of nations is, that a weaker power does not surrender its independence — rits light to .self-government, by associating with a stronger, and taking its protection. A weak state, in order to providé for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state. Examples of this kind are not wanting in Europe. “ Tributary and feudatory states,” says Vattel, “ do not thereby cease to be sovereign and independent states, so long as self-government and sovereign and independent authority are leit in the administiation of the state.” At the present day, more than one state may be considered as holding its right of self-government under the guarantee and protection of one or more allies.

The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws ,of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States.

The act of the state of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity.

The acts of the legislatuie of Georgia interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, is committed exclusively to the government of the union.

They are in direct hostility with treaties, repeated in a succession of years, which mark out the boundary that separates the Cherokee country from Georgia; guaranty to them all the land within their boundary; solemnly pledge the faith of the United States to restrain their citizens from trespassing on it; and recognise the pre-existing power of the nation to govern itself.

They are in equal hostility with the acts of congress for regulating this intercourse and giving effect to the treaties.

The forcible seizure and abduction of the plaintiff in error, who was residing in the nation, with its permission, and by authority of the president of the United States, is also a violation of the acts which authorise the chief magistrate to exercise this authority.

Will these powerful considerations avail the plaintiff in error? We think they will. He was seized and forcibly carried away, while under guardianship of treaties guarantying the country in which he resided and taking it under the protection of the United States. He was seized while performing, under the *521sanction of the chief magistrate of the union, those duties which the humane policy adopted" by congress had recommended. He was apprehended, tried, and condemned, under colour of a law which has been shown to be repugnant to .the constitution, laws, and treaties of the United States. Had a judgment, liable to the same objections, been rendered for property, none would question the jurisdiction of this court. Xt cannot be less clear when the judgment affects personal liberty,and inflicts disgraceful punishment; if punishment could disgrace when inflicted on innocence. The plaintiff in error is not less interested'in the operation of this unconstitutional law than if it affected his property. He is not less entitled to the protection of tile constitution, laws, and treaties of hi3. country.

THIS was a writ of error to the superior court for the county of Gwinnett, in the staté of Georgia.

On the 22d December 1S30, the legislature of the state of Georgia passed the following act:

“An-act to prevent the exercise of assumed and arbitrary-power, by all persons, under pretext ol authority from the Cherokee Indians and their laws, and to prevent white persons from residing within that part of the chartered limits óf 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 lavvful 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 be 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, *522convention, or in any other capacity, for the purpose of making laws, orders or regulations for said tribe. And all persons offending against the provisions offfhis 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-eourt 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 noné 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 residiilg'within the limits of the Cherokee nation, on'the 1st day of Ma!rch next, or at a v 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 láws 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, aqd 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 afore*524said, 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 pro - tection of the mines, or for the enforcement of the laws of fofce 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, whie! 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 enaeted by the authority aforesaid,' that each person who may belong to said guard, shall receive for his compensation at the rate of fifteen dollars per mbnth 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 of1 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 merriber 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. *525with 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. Beit 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 fr.om 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 High-tower river; thence to Thomas Pelet’s, on the old federal road; thence with said road to the Alabarda 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 *526of 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 watérs 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 mentionfed 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.

“ S.ec. 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 ride, ordinance, law or custom of said Cherokee natipn, 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, *527ordinance, 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, fop 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 hody 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 convictio'n 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 také 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 *528murder, 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 bylaw; 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. Wor*529cester, 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 excelléncy the governor of said state, or from any agent authorised by hi's 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 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, arid 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 Stales, 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 *530into 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 aré 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 ter*531ritory, 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 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 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, dn the 27th of October 1831, whi.ch, 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, ih 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 Márshall, chief justice of the said supreme court, the first Monday of August in the year of o.ur 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 iustice 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, set — 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 *534copies 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 is 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 fiand 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.

The case was argued for the plaintiffs in error by Mr Sergeant and Mr Wirt, with who,m 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, arid 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 if.

3. * That the statute of Georgia under which the plaintiffs in error were indicted and convicted, was unconstitutional and void. Because:

*5351. By the constitution of the United States, the establishment and regulation of intercourse wi.th the Indians belonged, exclusively, to the government of the United States.

2. The power thus given, exclusively, to the government of the United States ha'd 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 méritorious; 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. 548; 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.

*536Mr 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 thegovr ernor 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 *537copy 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 doés 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 cpuld 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 takén 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 fur*538ther 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, atid 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 haye or maintain, because, he saith, that several treaties have, from time tó 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, dn 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 trealiés have been duly ratified by the senate of the United States of America; and, by which treaties, the United Stales of .America'.asknowlédge the 3aid Cherokee nation to be a sovereign nation, authorised io govern themselves, and all persons- who have- settled within their territory, free from any right of legislative interference by the several states composing *539the United States of America, in reference to acts done within their own territory; and, by which treaties, the whole .of the territory -now occcupied 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 frond 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'territor.y/ 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 vaiious. contracts formed by and between the aforesaid Cherokee nation and the said United States of America, *540as 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 st'atute'of the United States, passed on the A— 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 re-, pugpant to the statute of the United States, entitled “ an act to *541regulate trade arid 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 tixe United States. These'are, ei 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; dr 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 ma'de 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 ihe plaintiff in error has been prosecuted and condemned, be consistent with, or repugnant to, the constitution, laws and treaties of the -United States.

*542It 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, ánd 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 governpr 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 Chérokee nation, to raise and organise 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 fight-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, háv'íng ihstitutions of their own, and governing themselves by their *543own 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 nre-ekisting 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, arid fishing.

Did these adventurers, by sailing along the coast; and occasionally landing on it, acquire for the several governments tó 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 mightterminate disastrously to all; it was necessary for the nations of Europe to establish somej>.rinciple 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 *544governments, 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 Europeap 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 th.emselves. 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 b£ 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 *545sea to sea,-did not enter the mind of any msfh. 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 weré 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.

*546The 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.tbe.like calamities, inasmuch as' their whole southern frontier contiuueth 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 pápér 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 unavoidabty-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,'théy 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 *547words, nor supposing it to be material whether they were called the subjects, or the children of the':r father in Europe; lavish in professions of duty and affection, in return for the rich presents they received; so long as their, aotugj 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 lands when they wére 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 conclusionhe says, “lastly, I inform yóuthatit 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 wiil 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 futhre, 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. *548with your people'will be faithfully kept, so it is expected that you, also, will be careful strictly to observé them.” ,

The proclamation issued by the king of Great Britain, in 1763, soon after the rátification 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, hot having been ceded to,, or purchased by, us (the king), as aforesaid, aré 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 sa:d 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 *549made 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 ánxious 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 succéeding 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 *550passage 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 pun-' ishments 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 hád 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 Sta .es, 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 án 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 Unitéd 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 sháll 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 amd civil rights of the Indians.-

*551During 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 tó 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 *552great degree, to the particular potentate whose ultimate right pf 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 info 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, ho 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 óf a powerful friend and neighbour, and receiving the advantages of that protection, without involving a sunsnder 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 favour 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 ahd the citizens of the United States. But, in describing this boundary, the term “ allotted” and the term " hunting ground1’ 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; *553and 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 misderstood 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 mere 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 ágainst 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,” *554into a surrender of self-government, would be, we think, a perversion of their necessary meaning, and a departure frofn 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, aré the cession of their lands, and security against intruders on them. I's it credible, that they should have considered themselves as surrendering to the United States the right to dictate their future eessions, 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 subseqúenMreaties; 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 hav¿ established a solid-peace. To accommodate the differences still existing between the state of Georgia and the Cherokee nation, the treaty of *555Holston 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 óf 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 theit 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 óf 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, ¿nd 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 óf each; the abjility of each to establish this boundary, is acknowledged by the other. To preclude for ever all disputés, it is agreed *556thatitshall .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 theif 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 capa-, ble 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 pledging 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 thh punishment of intruders.

From the commencement of our government, congress has passed acts to regulate trade and intercourse with the InN'c vvhieh treat them as nations, respect théir rights, and m: ..ifest *557a 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 Jong been cherished by the executive. It. enacts, “ that, for the purpose of providing against the further decline and final ex-tinctionof the Indian tribes adjoining to the frontier settlements of the United States, and' for introducing among them th'e 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 introducéd with their own Consent, to émploy 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 uniofl.

*558Is 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 revolutionaiy 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; por 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 powei ^ of war and p'eace, and congress dissolved our connexion with the mother .county, 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 with those of Europe.

Such was the state of things when- the confederation was adopted. That instrument surrendéred the powers of peace and war to congress, and prohibited them to the states, respectively, unless a'staie be actually invaded, “ or shall have received certain advice of a resolution being fonfied 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.77 This instrument also gave the United States ■in congress assémbled the sole and exclusive right of “ regulating the trade and managing all the affairs with the Indians, not *559members of any of the states: provided, that the legislative power of any state within its own limits be hot infringed or violated. ”

The ambiguous phrases which follow thé 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 matde 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 Indians. 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 who are capable of making treaties. The words “ treaty” and “ nation” are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning- We *560have applied them to Indians, as we have applied them to .the other nations of the earth. They are applied to all in the same sense.

Georgia, herself, has furnished conclusive evidence that her former opinions on tips subject concurred with those enter-. tained by hter sister states, and by the government of the United States. Various acts of her legislature have been cited in the argument, including the contract of cession made in the year 1802, all tending to prove her acquiescence in the' universal conviction that the Indian nations possessed a full right to the lands they occupied, until that right should be-extinguished by the United States, with their consent: that their- territory Was separated from that of any state within whose chartered limits they might reside, by a boundary line, established by treaties: that, within their boundary, they possessed rights with which no state could interfere: and that the whole power of regulating the intercourse with them, was vested in the United States. A review of these acts, on the part of Georgia, Would occupy too much time, and is the less necessary, because they have been accurately detailed in the argument at the bar. Her newseriesmf laws, manifesting her abandonment of these opinions, appears to have commenced in December 1828.

In opposition to this original right, possessed by the-undisputed occupants of every country; to this recognition of that right, which is evidenced by our history, in every change through which-we have passed; is placed the charters granted by the monarch of a distant and distinct.region, parcelling out a territory in possession of others whom he could not remove and did not attempt to remove, and the cession made of his claims by the treaty of peace.

The actual state of things at the time, and all history since, explain these charters; and the king of Great Britain, at the treaty of peace; could cede only what belonged to his crown: These newly assexted titles can derive no aid from the articles so often repeated in Indian treaties; extending to them, first,, the protection of Gréat Britain, and afterwards that of the United States. Thesé articles are associated with others, recognizing their title to self government. The very fact of repeated treaties with them recognizes it; and the settled doc*561trine of the law of nations is, that a weaker power does not 'surrender its independence — its right to self government, by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state. Exam-, pies of this kind are not wanting in Europe, “ Tributary and feudatory states,” says Vittel,.“ do not thereby cease to be .sovereign and independent states, so long as self government and sovereign and independent authority are left.in the administration, of the state.” At the present day, more than one state may be considered as holding its right of self government under the guarantee and protection of one or more allies.

The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and-with the acts of congress. Thé' whole intercourse between the United States and this nation, is, by oúr constitution' and laws, vested in the-government of the United States.

The act of the state of Georgia, under which the plaintiff in .error was prosecuted, is consequently void, and the. judgment a nullity. Can this court, revise, and reverse it?

If the objection to the system of legislation, lately adopted by the legislature of Georgia, in relation to the Cherokee nation, was confined to its extra-territorial operation, the objection, though complete,-so far as respected mere right, would give'this court no power over the subject. But it.goes much further. If the review which has been taken be correct, and we think it is, the acts of Georgia are repugnant to the constitution, laws, and treaties of the United States.

They interfere forcibly with-the relations, established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, are committed exclusively to the government of the union.

They are in direct hostility with .treaties, repeated in a. succession of years, which mark out the boundary that separates *562the Cherokee country from Georgia; guaranty to them all the land within their boundary; solemnly pledge the faith of the United States to restrain their citizens from trespassing on it; and recognize the pre-existing power of the nation to govern itself.'

They are in equal hostility with the acts of congress for regulating this intercourse, and giving effect to the treaties.

The forcible seizure and abduction of the plaintiff in error, who was residing in the nation wi.th its permission, and by authority of the president of the United States, is also a violation of the acts which authorise the chief magistrate to exercise ■this authority.

Will, these powerful considerations avail the plaintiff in error? We think they will. He was seized, and forcibly carried away, while under guardianship of treaties guarantying the country in which he resided, and taking it under the protection of the United States. He was seized while performing, under the sanction of the chief magistrate of the union, those duties which the humane policy adopted by congress had recommended. He was apprehended, tried, and condemned, under colour of a law which has been shown to be repugnant to the constitution, laws, and treaties of the United States. Had a judgment, liable to the same objections, been rendered for property, none would question the jurisdiction of this court-It cannot be less clear when the judgment affects personal liberty, .and inflicts disgraceful punishment, if punishment could disgrace when inflicted' on innocence. The plaintiff in error is not'less interested in the operation of this unconstitutional law than if it affected his property. He is not less entitled to the protection of the constitution, laws, and treaties of his country.

This point has been elaborately argued and, after deliberate consideration, decided, in the case of Cohens v. The Commonwealth of Virginia, 6 Wheat. 264.

. It is the opinion of this court that the judgment of the superior court for the county of Gwinnett, in the state of Geor-r gia, condemning Samuel A. Worcester to hard labour, in the ■penitentiary of the state of Georgia, for four years, was pronounced by that court ünder colour of a law which is void, as being repugnant to the constitution, treaties, and laws of the *563United States, and ought, therefore, to be reversed and annulled.'

Mr Justice' M’Lean.

As this case involves principles of the highest importance, and may lead to consequenpes which shall have ap enduring influence on the institutions of this country; and as there are some points in the case on which I wish to state, distinctly, my opinion, I embrace the privilege of doing so.

With the decision, just given, I concur.

The plaintiff in error was indicted under a law of Georgia, <£ for residing in that part of the Cherokee nation attached, by the laws of said state, to the county of Gwinnett, without a license or permit from his excellency the governor of the state, or from any agent authorised by his excellency the governor 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 himself as a citizen thereof.”

On this indictment the defendant was arrested, and, on being arraigned before the superior court for Gwinnett county, he filed, in substance, the following,plea:

He admits that, on the 15th of July 1831, he was, and still continued to be, a resident in the Cherokee nation, and that the crime, if any were committed, was committed at the town of New Echota, in said nation, out of the jurisdiction of the court. That he is a citizen of Vermont, and that he entered the Indian country 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 Cherokee nation, and in accordance with the humane policy of the government of the United States, for the improvement of the Indians.

He then states, as a bar to .the prosecution, certain treaties made between the United States and the Cherokee Indians, by *564which the possession of the territory, they now inhabit was solemnly guarantied to them; and also a certain act of congress, passed in March 1802, entitled “ aa act to regulate trade and intercourse with the Indian tribes.” He also alleges, that this, subject, by the constitution .of the United States, is.exclusively vested in congress;- arid that the law of Georgia, being repugnant to the constitution of the United States, to the treaties referred to, and to the act of congress specified-, is void, and cannot-be enforced against him.-

This plea was overruled by the court, and the defendant pleaded not guilty.

The jury returned a verdict of guilty; and the defendant was sentenced, by the court, to be kept in close custody, by the-sheriff of the county, until he could be transported to the penitentiary of the. state, and the keeper thereof was directed to receive, him into'custody, and keep him at hard labour in the penitentiary, during the term of four years.

Another individual was included in the same indictment, and joined in the plea to the jurisdiction of the court, and was also included in the sentence; but his name is not adverted to, because the principles of the case are fully presented in the above statement.

To reverse this judgment, a writ, of error Was obtained, which, having been returned, with the record of the proceedings, is now before this court.

The first question which it becomes necessary to examine, is, whether the record- has been duly certified, so as to bring the proceedings regularly before this tribunal.

A writ of error was allowed, in this case, by one of the justices of this court, and the requisite security'taken. A citation was also issued, in the form prescribed, to the state of Georgia, a true, copy of which, as appears by the oath of William Patten, was delivered to the governor, on the 24th day of November last; and another true copy was delivered, on the 22d day of the same month, to the attorney-general of the state.

The recofd was returned by the clerk, under the seal of the court, who certifies that it is a full and complete exemplifica.tion of the proceedings and judgment had' in the case; and he’ *565further certifies, that the original bond, and a copy of the writ of error, were duly deposited and filed in the clerk’s office erf said court, qn the 10th day of November last.

Is it necessary, in such a case, that the record should be certified by the'judge who held the court?

In the case of Martin v. Hunter’s Lessee, which was' a writ .of error to the .court of appeals of Virginia, it was objected that the return to the writ of error was defective, because the record was not so certified; but the 'court, in that case, said, «the forms of process, and the modes of proceeding in the exercise of jurisdiction, are, with few exceptions, left -by the legislature to be regulated and changed as this court may, in its discretion, deem, expedient.” By a rule of this court,the return óf a copy of a record of the proper court, annexed to the writ of error, is declared to be a sufficient compliance with the mandate of the writ. The record, in this case, is duly certified by the clerk of the court of appeals, and annexed to the writ of error. The objection, therefore, which has been urged to the sufficiency of the return, cannot prevail.” — 1 Wheat. 304.

In 9 Wheat. 526, in the case of Stewart v. Ingle and others, which was a writ of error to the circuit court for the district of Columbia, a certiorari was issued, upon a suggestion of diminution in the record, which, was'returned by the clerk with another record; whereupon, a motion was made for a new certiorari,:on the ground that the return ought to Iiave been made, by the judge of the court below, and not by the clerk; The writ of certiorari, it is known, like the writ of error, is, directed to the court.

Mr Justice Washington, after consultation with the judges, stated that, according to the rules and practice of the court, a return made by the clerk was-a sufficient return.

To ascertain what has been the general course of practice on this subject, an examination has been made into the manner in which recqrds have been certified from state courts' to this' court; and it appears that, -in the year 1817, six' causes w.ere certified, in obedience to writs óf error, by the clerk, under the seal of the court. In the year 1819, two were¡ so certiffied, one of them being the case of M’Cullough v. The State of Maryland.

*566In the year 1821, three eases werq so certified; and in the year 1823, there was one. In 1827, there were five, and in the ensuing year, seven.

In the year 1830, there were eight causes so certified, in five of which,, a state was a party on the record. There were three causes thus certified in the year 1831, and five in the present year.

Uuring the above periods, there were only fifteen causes from state courts, where the records were certified by the court or the presiding judge, and one of these was the case of Cohens v. The State of Virginia.

This court adopted the following rule on this subject in 1797:

“ It is ordered by the court, that the clerk of the court to which any writ of error shall be directed, may make, the return of the same, by transmitting a true copy of the record, and of all proceedings in t ie cause, under his hand, and the seal, of the court.”

The [lower of the court to adopt this rule, cannot be questioned: and it seems to have regulated the practice ever since its adoption. In some cases, the certificate of the court, or the presiding judge, has been affixed to the record; but this court has decided, where the question has been raised, that such certificate is unnecessary.

So far as the authentication of the record is concerned, it is impossible to make a distinction between á civil and a criminal case. What may be sufficient to authenticate the proceedings in a civil case, must be equally so in a. criminal one. The verity of the record is of as much importance in the one case as the other..

.This is a question of practice; and it would seem that, if any one point in the practice of this court can be considered as settled, this one must be so considered.

In the progress of the investigation, the next inquiry which seems naturally to arise, is, whether this is a case in which a writ of error may be issued.

By the twenty-fifth section of the judiciary act. of 1789, it is provided, “that a final judgment or decree in any suit in the. highest court, of law or equity of a state, in which a decision in thé suit could be had, where is drawn in question the valid*567ity 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, may be re-examined, and reversed or affirmed, in the supreme court of the United States.”

Doubts have been expressed whether a writ of error to a state court is not limited to civil cases. These doubts could not have arisen from reading the above section. Is not a cri. minal case, as much a suit as a civil case. What is a suit, but a prosecution; and can any one suppose that it was the intention of congress, in using the word suit, to make a distinction between a civil prosecution and a criminal one.

It is more important that jurisdiction should be given to this court in criminal than in civil cases, under the twenty-fifth section of the judiciary act. Would it nót be inconsistent,, both with the spirit and letter of this law, to revise the judgment of a state court, in a matter of controversy respecting, damages, where the decision is against a right asserted under the constitution or a law of the United States; but to deny the jurisdiction, in a case where the property, the character, the liberty and.life of a citizen may be destroyed, though protected by the solemn guarantees of the constitution?

But this is not an open question; it has long since been settled by the solemn adjudications of this court. The above' cónstruction, therefore, is sustained both on principle and. authority; The. provisions of the section apply as well to criminal as to civil cases, where the constitution, treaties, or laws of-the United States come in conflict with the laws of a state; and the latter is sustained by the decision of the court.

It has been said, that this court ean have no power to arrest *568the proceedings of a state tribunal in the enforcement of the criminal laws of the state. This is undoubtedly, true, so long as a state court, in the execution of its penal laws, shall not infringe upon the constiiution of the United States, or some treaty or law of the union.

Suppose a state should make it penal' for an officer of the United States to discharge his duties within it's jurisdiction! as, for instance, a land officer,- an officer of the customs, or a postmaster, and punish the offender by confinement in the penitentiary: could not the supreme court "of the United States .interpose their power, and arrest or reverse the state proceedings ? Cases of this kind are so' palpable, that they need only to be stated to gain the assent of every judicious mind. And would not this be an interference with the administration of the criminal laws of a státe ?

This court have repeatedly decided, that they havé no appellate jurisdiction in criminal cases from the circuit courts of the United States: writs of error and appeals are given, from those courts only in civil cases. But, even in those -courts, where the judges áre divided on any point, in a criminal case, the .point may be brought before thitf court, under a general provision in cases o.f division of opinion.

Jurisdiction is taken in the cáse' under consideration exclusively by the provisions of the twenty-fifth section of the law which has been quoted. These provisions, as .has been remarked, apply, indiscriminately, to criminal and civil cases, wherever,a right is claimed under the constitution, treaties, or laws of the United States, and the decision, by the state court, is against such right. In the present case, the decision- was against thé -right expressly set up by the defendant, and it was' made by the highest judicial tribunal of Georgia.

To give jurisdiction .in such a case, this court need look no further than to ascertain whether the right; thus asserted, was decided against by the state court. The case is clear of difficulty on this point.

The name of the state of Georgia is used in this .case, because such was the designation given to the cause jn the state court. No one ever supposed, that the state, in its sovereign capacity, in such a case, is a party to the cause. The form of *569the prosecution here must.be the same as it was in the state court; but so far as the name of the state is used, it is matter of form. Under a rule of this court, notice was given to the governor and attorney-general of the state, because it is a part of their duty to see that the laws -of the state are executed.

In prosecutions for violations of the penal laws of the union, the name of the United States is used in .the same manner. Whether the prosecution be under a federal or state law, the defendant has a right to question the constitutionality of the’ law.

Can any doubt exist as to the power of congress to pass the law, under which jurisdiction is taken in this case? Since its passage, in 17S9, it has been the law of the land; and has been sanctioned by an uninterrupted course of decisions in this court, and acquiesced in by the state tribunals, with perhaps a solitary exception: and whenever the attention of the national legislature has been called to the subject, their sanction has been given to the law by so large a majority as to approach almost to unanimity.

Of the policy of this act there can be as little doubt as of the right of congress to pass it.

The constitution of the United States was formed, not, in my opinion, as some have contended, by the people of the United States, .nor, as others, by the states; but by a combined power, exereised by the people, through their delegates, limited in their sanctions, to the respective states.

Had the constitution emanated from the people, and the states had been referred to,, merely as convenient districts, by which the public expression could be ascertained, the popular vote throughout the union would have been the only rule for the adoption of the constitution. This course was not pursued; and in this fact, it clearly appears that our fundamental law was not formed, exclusively, by the popular suffrage of. the people.

The vote of the people was limited to the respective states in which they resided. So that it appears there was an expression of popular suffrage and state sanction, most happily united, in the adoption of the constitution of the union.

Whatever differences of opinion may exist, as to the means *570by which the constitution was adopted, there would seem to be no ground for any difference as to certain powers conferred by it.

Three co-ordinate branches of the government were established; the executive, legislative, and judicial. These branches are essential to the existence of any free'.government, and that they should possess powers, in their respective spheres, coextensive with each other.

If the executive have not'powers which will enable him to execute the functions of his office, the system is essentially defective; as those .duties must, in such case, be discharged by One of the other branches. This would destroy that balance which is admitted to be essential to the existence of free government, by thé wisest and most enlightened statesmen of the present day.

It is not less important that the legislative power should be •exercised by the appropriate branch of the government, than that the executive duties should devolve upon the proper fuñe-. tionary. And if the judicial power fall Short of giving effect to' the laws of the union, the existence of. the federal government is at an end,

It is in vain,- and worse than in vain, that the national legislature enact laws, if thdse laws are to remain upon the statute book as monuments of the imbecility of the national power. It is in vain that the executive is' called to superintend the execution of the laws, if he have no power to aid in their enforcement.

• Such weakness and folly are, in no degree; chargeable to the distinguished men through whose instrumentality-th,e coRestitution was formed. The power^ given, it is true, an-limited;' and no powers,, which are not expressly given, can bp exercised by the- federal government: but, where given, they are supreme. Within the sphere allotted to them, the co-ordinate branches of the general government revolve, un-. obstructed by any legitimate-exercise of power by the state governments. , The powers exclusively- given to' the federal government are limitations" upon the state authorities. But, with, the exception pf these limitations, the states are supreme; átíd their sovereignty can be no more invaded by the action of -the general government, than the action of the state ;governmentp m arrest or .obstruct the course of the national power.

*571It has been asserted that the federal government is foreign to the state governments; and that it must consequently be hostile -to them. Such an opinion could not have resulted from a thorough investigation of the great principles which lie at the foundation of our system. The federal government is neither foreign to the state governments, nor is it hostile tp them. It proceeds from the same people, and is as much under their control as the state governments.

Where, by the constitution, the power of legislation is exclusively vested in congress, they legislate for the people of the union, and their acts are as binding as are the constitutional enactments of a state legislature on the people of the state. If this were not so, the federal government would existonly in name. Instead of being the proudest monument of human wisdom and patriotism, it would be the frail memorial of the ignorance and mental imbecility of its framers.

In the discharge of his constitutional duties, the federal executive acts upon the people of the union, the same as a governor of a state, in the performance of his duties, acts upon the people of the state. And the judicial power of the United States acts in the same mánner on the people. It rests qpon the same basis as the other departments of the government. The powers of each are derived from the same source, and are.conferred by the same instrument. They have the same limitations and extent.

The supreme court of a state, when required to give effect to a statute of the state, will examine its constitution, which they are sworn to maintain, to see if the. legislative act be repugnant to it; and if a repugnancy exist, the statute must yield to the paramount law.

The same principle-, governs the supreme tribunal of the union. No one can deny, that the constitution of the United States is the supreme law of the land; and consequently, no act of any state legislature, or of congress, which is repugnant to it, can be of any validity.

Now if an act of a state legislature be repugnant to the constitution of the state, the state court will declare it void; and if such act be repugnant to the constitution of the union, or a law made under that constitution, which is declared to be the supreme law of the land, is it not equally void? And, under *572such circumstances, if this court should shrink from a discharge of their duty, in giving effect-to the supreme lasv of the land, would they not violate their oaths, prove traitors to the constitution, and forfeit all just claim, to the public conñdencé?

It is sometimes objected, if the federal judiciary may declare an act of a state legislature void, because it is repugnant to the constitution of the United States, it places the legislation of a state within the power of this court. And might not the same argument be urged with equal force against the exercise of a similar power, by the supreme court of a state. Such an argument must end in the destruction of all constitutions, and the will of the legislature, like the acts of the parliament of Greát Britain, must be the supreme, and only law of the land.

It is impossible to guard an investiture of power so that it may not, in some form, be abused: an argument, therefore, against, the exercise of power', because it is liable to abuse, would go to the destruction of all governments.

The powers of this court are expressly, not constructively, given by the constitution; and within this delegation of power, this court are the supreme court of the people of the United States, and they are bound to discharge their duties, under the same responsibilities as the supreme court of a state; and are equally, within.their powers, the supreme court of the people of each state.

When this court are required to enforce the laws of any state, they are governed by those laws. So closely do they adhere to this rule, that during the present term, a judgment of a circuit court of the United States, made in pursuance of decisions of this court, has been reversed and annulled, because .it did not conform to the decisions of the state court, in giving a construction to a local law. But while this court conforms its decisions to those of the state courts, on all questions arising •under the statutes and constitutions of the' respective states, they are bound to revise and correct those decisions, if they annul, either the constitution of the United States, or the laws made under it.

It appears,-then, that on all questions arising under the laws of a state, the decisions of the courts of such state form a rule for the decisions of this court, and that on all questions arising under the laws of the United States, the decisions of this court *573form a rule for the decisions of the state courts. Is there any thing unreasonable in this? Have not the federal, as well as the state courts, been constituted by the people? Why then should one tribunal more than the other, be deemed hostile to the interests of the people.

In the second section of the third article of the constitution, it is- declared, that “ the judicial power shall extend to all cases, in law and equity, arising under the constitution, the laws of the United States, and treaties made, or which shall be made, tinder their authority.

Having shown that a writ' of error will l¡e in this case, and that the record has been duly certified, the next inquiry that arises is, what are the acts of the United States which relate to the Cherokee Indians and the acts óf Georgia.; • and were these acts of the United States sanctioned by the federal constitution?

Among the enumerated powers of congress, contained in the eighth section of the first article of the constitution, it is dedared u that congress shall have power to regulate commerce with foreign nations, and among the Indian tribes.” By the articles of confederation, which were adopted on the 9th day of July 1778, it was provided “ that the United States, in congress assembled, shall also have the sole and exclusive riglff and power of regulating the alloy and value of coih struck, by their own authority, or by that of the respective states; fixing-the. standard of weights and measures throughout the United States; regulating the trade and management of all affairs with the Indians, not members of any of the states: Provided, that the legislative right of any state, within its own limits, be not infringed or violated.”

As early as June 1775, and before the adoption of the articles of confederation, congress took into their consideration the subject of Indian affairs. The Indian country was divided into three dépaijtmerrts, and the .superintendence of each was committed to commissioners, who were authorised to hold treaties with the Indians, make disbursements of money for their use, and to discharge various.duties, designed to preserve peace and cultivate a friendly feeling with them towards the colo.nies. No person was permitted to trade with them with*574out alicense from one or more of' the commissioners of the respective departments.

In April 1776, it was “ resolved, that the commissioners of Indian affairs in the middlé department, or any one of them, be desired to employ, for reasonable salaries, a minister of the gospel, to reside among the Delaware Indians, and'instruct them in the Christian religion; a school master, to teach their youth reading, writing, and arithmetic; also, a blacksmith, to do the work of the Indians..” • The general intercourse with the Indians continued to be managed under the superintendence of the continental congress.

Qn the 28th of November 1785, the treaty of Hopewell was formed, which was the first treaty made with the Cherokee Indians. The commissioners! of the United States were required to give notice to the executives of Virginia, North Carolina,.South Carolina and Georgia, in order that each might appoint one or more persons to attend the treaty, but they seem to have had no power to act ort the occasion.

In this treaty it is stipulated, that “• the commissioners plenipotentiary of the United States in congress assembled, give peace to all the Cherokees, and receive them into the favour and protection of the United States of America, on the following conditions:”

1. The Cherokees to restore all prisoner's- and property taken during the war.

2. The United States to restore to the Cherokees all prisoners.

3. The 'Cherokees acknowledge themselyes to be under the protection of the United States, and of no other sovereign whatsoever.

4. The boundary line between the Cherokees and the citizens of the United States was-agreed .to as designated.

5. If any person, riot being an Indian, intrude upon the land “ allotted” to the Indians, or, being settled on it, shall refuse to remove within six months after the ratification of the treaty, he forfeits the protection of the United States, and the Indians were at liberty to punish him as they might think proper.

6. The Indians are bound to deliver up to the United States any Indian who shall commit robbery, or other capital crime, on a white person living within their protection.

*575. 7. If the same offence be committed on an Indian by a citizen of the United States, he is to be punished.

8. .It is understood that the punishment of the innocent, under the idea of retaliation, is unjust, and shall not be practised on either side, except where there is a manifest violation of this treaty; and then it shall be preceded, first, by a demand of justice; and, if refused, then by a declaration of hostilities.

“That the Indians may have full confidence in the justice of the United States respecting their interests, they shall have a right to send a deputy of their choice, whenever they think fit, to. congress.”■

The treaty of Holston-was entered into with the same people, on the 2d day of July 1791.

This was a treaty of peace, in which the -Cherpkees again placed themselves under-the protection of the United States, and engaged to hold no treaty with any foreign power, individual state, or with individuals of any state. Prisoners were agreed to be delivered up on both sides; a new Indian boundary was fixed; and -a cession- of land made to the United States on the payment of a stipulated consideration.

A free, unmolested road, wás agreed to be given through the Indian lands, and the free navigation of the Tennessee river. It was agreed that the United States should have the exclusive right of regulating their trade, and a solemn guarantee of their land, not ceded, was made. A similar provision, was made, as to the punishment of offenders, and as to all-persons who might enter the Indian territory, as was contained in thé treaty of Hopew.ell. Also, that reprisal or retaliation shall not be committed, until satisfaction shall have been demanded of the aggressor.

On the 7th day of August 1786, an ordinance, for the regulation of Indian affairs was adopted, which repealed the former system.

In 1794 another treaty was made with the Cherokees, the object of which Was to carry into effect the treaty of Holston.And on the plains of Tellico, on the 2d of October 1798, the CheroKees, in another treaty, agreed to give a right of way, in a certain direction, over their lands. Other engagements were also entered into, which need not be referred to.

Yarious other treaties were made by the United States with *576the Cherokee Indians, by which, among other arrangements, cessions of territory were procured and boundaries agreed on.

. In a'treaty made in 1817, a distinct wish is expressed by the Cherokees, to assume a more regular form of government, in which they are encouraged by the United States. By a treaty held at Washington, on the 27th day of February 1819, a reservation of land is made by the Cherokees for a school fund, which was to be surveyed and sold by the United States for that purpose. And it was agreed, that all white persons, who had intruded on the Indian lands, should be removed.

To give effect to various'treaties with this people, the power of the executive has frequently been exercised; and atone time General Washington expressed a firm determination to resort to. military force to remove intruders from the Indian territories.

On the 30th of March 1802, congress passed an act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers.

In this act it is provided, that any citizen or resident in the United States, who shall enter into the Indian lands to hunt, or for 'any other purpose, .without a license, shall be subject to a fine and imprisonment. And if any person shall attempt to survey, or actually survey, the Indian lands, he shall be liable to. forfeit a sum not exceeding one thousand .dollars, and be imprisoned not exceeding twelve months. No person is permitted to reside as a trader within the Indian boundaries, without a license or permit. All persons are prohibited, under a heavy penalty, from purchasing the Indian lands; and all such purchases are declared to be void. And it is made lawful for the military force of the United States to arrest offenders against the provisions of the act.

By the seventeenth section, it is provided, that the act shall not be so. construed as to “prevent any trade or intercourse with Indians living on lands surrounded by settlements of the citizens of the'United States; and being within the ordinary jurisdiction of any of the individual states; or the unmolested use of a road, from Washington district to Mero district, or to prevent the citizens of Tennessee from keeping in repair said road.” Nor was the act to be so construed as to prevent per.sons from travelling from Knoxville to Price’s settlement, *577provided they shall .travel in the tract or path which is usually travelled, and the Indians do not object; but if they object, then all travel on this road to be prohibited, after proclamation by the president, under the penalties provided in the act'.

Several acts, having the same object in view, were passed prior to this one; but as they were repealed either before, or by the act of. 1802, their provisions need not be specially noticed.

The acts of the state of Georgia, which the plaintiff in error complains of, as being repugnant to the constitution, treaties, and laws of the United States, are found in two statutes.

The first act was passed the 12th of December 1829; and is entitled “ 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, Dekalb, Gyvinnett and Habersham; and to extend the laws"of the state over ithe same, and to annul all laws 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 on this subject.”

This act annexes the territory of the Indians, within the' limits of Georgia, to the counties named in the title; and extends the jurisdiction of the state over it. It annuls the laws, ordinances, orders and regulations, of any kind, made by the Cherokees, either in council or in any other way, and they are not permitted to be given in evidence in the courts of the state. By this law, no Indian, or the descendant of an Indian, residing within the Creek or Cherokee nation of Indians, shall be deemed a competent witness in any court of the state, to which a white person may be a party, except such white person reside within the nation. Offences under the act a, be punished by confinement in the penitentiary, in some cases not less than four nor more than six years, and in others not exceeding four years.

The second act was passed on the 22d day of December 1830, and is entitled “an act to prevent the exercise of assumed and arbitrary power,- by all persons, on pretext of authority from the Cherokee Indians arid their laws; and to prevent white persons from residing within that part of the *578chartered 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.”

By the first section of this act, it is made a penitentiary offence, after the 1st day of February 1831, for any person or persons, under colour or pretence of authority from the 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; for the purpose of legislating, &c.

They are prohibited from making laws, holding courts of justice, or executing process. And all white persons, after the 1st of March 1831, who shall reside within the limits of the Cherokee nation, without a license or permit from his excellency the governor, or from such agent as his excellency the governor shall authorize to grant such' permit or license, or 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. From this punishment, agents of the United States are excepted, white females, and male children under twenty-one years of age.

Persons who have obtained license, are required to take the following oath: “ 1, A. B., do solemnly swear, 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.”

The governor is authorized to organize a guard, which shall not consist of more than sixty persons, to protect the mines in the Indian territory, and the guard is authorized to arrest all offenders, under the act.

It is apparent that these laws are repugnant to the treaties with the Cherokee Indians which have been referred to, and to the law of 1802. This repugnance is made so clear by an exhibition of the respective acts, that no force of demonstration can make it more palpable.

By the treaties and laws of the' United States, rights are guarantied to the Cherokees, both as it respects their territory and internal polity. By the laws of Georgia these rights are *579abolished; and not only abolished, but an ignominious punishment is inflicted on the Indians and others; for the exercise of them. The important question then arises, which shall stand, the laws of the United States, or the laws of Georgia? No rule of construction, or subtlety of argument, can evade an answer to this question. The response must be, so far as the punishment of the plaintiff in error is concerned, in favour of the one or the other.

Not to .feel the full weight of this momentous subject, would evidence an ignorance of that high responsibility.which is devolved upon this tribunal, and upon its humblest member, in giving a decision in this case.

Are the treaties and law which have been cited, in force? and what, if any, obligations, do they impose on the federal government within the limits of Georgia?

A reference has been made to the policy of the United States on the subject of Indian affairs, before the adoption of the constitution, with the view of ascertainiiig in what light the Indians have been considered by the first official acts, in relation to them, by the United States. For this object, it might not be improper to notice how they were considered by the European inhabitants, who first formed settlements in this part of the continent of America.

The abstract right of every section of the human race to a reasonable portion of the soil, by which to acquire the means of subsistence, cannot be controverted. And it is equally clear, that the range of nations or tribes, who exist in the hunter state, may be restricted within reasonable limits. They shall not be permitted to roam, in the pursuit of game, over an extensive and rich country, whilst in' other parts, human beings are crowded so closely together, as to render the means of subsistence precarious. The law of nature, which is paramount to all other laws, gives the right to every nation, to the enjoyment of a reasonable extent of country, so as to derive the means of subsistence from the soil.

In this view perhaps, our ancestors, when they first migrated to this country, might have taken possession of a limited extent of the domain, had they been' sufficiently powerful, without negotiation or purchase from the native Indians. But this course is believed to have been nowhere taken. A more *580conciliatory mode was preferred, and one which was better calculated to impress the Indians, who were then powerful, •with a sense of the justice of their white neighbours. The occupancy of their lands was never assumed,.except upon the basis of contract, and on the payment of a valuable consideration.

. This policy nas obtained from the earliest white settlements .in this country, down to the present time. Some cessions of territory may have been made by the Indians, in compliance with the terms on which peace was offered by the whites; but the soil, thus taken, wras taken by the laws of conquest,, and always as an indemnity for the expenses of the war, commenced by the Indians.

At no time has the sovereignty of the country been recognized as existing in the Indians, but they have been always admitted t<? possess many of the attributes of sovereignty. All the rights which belong to, self government have been recognized as vested in them. Their right of occupancy has never been questioned, but the fee in the soil has been considered in the government. This may be called the right to the ultimate domain, but the Indians have a present right of possession.

In some' of the old states, Massachusetts, Connecticut, Rhode Island and others, where small remnants of tribes remain, surrounded by ' white’ population, and who, by their reduced numbers, had lost the power of self government, the laws of the state have been. extended over them,.for the protection of their persons and property.

Before the adoption of the constitution, the mode of treating with the Indians was various. After the formation of the confederacy, this subject was placed under the special superintendence of the United Colonies; though, subsequent to that time, treaties may have been occasionally entered into between a state and the Indians in its neighbourhood. It is not considered to be at all important to go into a minute inquiry on this subject.

By the constitution, the regulation of commerce among the Indian tribes is given to congress. This power must be considéred as exclusively vested ih congress, as the power to' regulate commerce ’ with foreign nations, to coin money, to *581establish post offices, and to declare war. It is enumerated in the .'same section, apd belongs to the same class of powers.

This investiture o°f power has been exercised in the regulation .of commerce with the Indians, sometimes by treaty, and, at. other times, by enactments of congress. In this respect they have been placed by; the federal authority, with but few exceptions, on the same footing as foreign nations.

It is said that these treaties are nothing more than compacts, which cannot be considered as obligatory on the United States, from a.want of power in the Indians to enter into them.

What is a treaty? The answer is, it is a compact formed between two nations or communities, having the right_of self government.

Is it essential that each party shall possess the same attri-' butes of sovereignty, .to give force to the treaty? This will not be pretended: for, on this ground, very few valid treaties could be formed. The only requisite is, that each of the contracting parties shall possess the right of self government, and the power to perform the stipulations of the treaty.

Under the constitution, no state can enter into any treaty; and it is believed that, since its adoption, no state, under its own authority, has held a treaty with the Indians. •

It must be admitted, that the Indians sustain a peculiar relation to the United States. They do not constitute, as was decided at the last term, a foreign state, so as to claim the right to sue in the supreme court of the United States: and yet, having the right of self government, they, in some sense, form a state. In the management of their internal concerns, they are dependent on.no power. They punish offences under their own laws, and, in doing so, they are responsible to no earthly tribunal. They.make war, and form treaties of peace. The exercise of these and other powers, gives to them a distinct character as a people, and constitutes them, in some respects, a state, although they may not be admitted to possess the right of soil.

By various treaties, the Cherokees have placed themselves under the protection of the United States: they have agreed to trade with no other people, nor to invoke the protection of any other sovereignty. B.ut such engagements do not divest *582them of the right of self government, nor destroy their capacity to enter into treaties or compacts.

Every state is more or less dependent on those which sur-, round.it; but, unless this dependence shall extend so far as to merge the political existence of the protected people into that of their protectors, they may still constitute a state. They may exercise the powers not relinquished, and bind themselves as a distinct and separate community.

The language used in treaties with tire Indians should never' he construed to their prejudice. If words be made use of which are susceptible of a more extended meaning .than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense. To contend that the word ee allotted,” in reference to the lane, guarantied to the Indians in certain treaties, indicates a favour conferred, rather than a right acknowledged, would, it would seem to me, do injustice to the understanding of the parties. How the w.ords of the treaty wére ■ understood by this unlettered people, rather than their critical meaning, should form the rule of construction.

The question may be asked, is no distinction to be made between a civilized and savage people? Are our Indians to be placed upon a footing with the nhtions of Europe, with whom we have made treaties?

The inquiry is not, what station shall • now be given' to the Indian tribes in our country?, but, what relation have they sustained to us, since the commencement of our government?

We have made treaties with them; and are those treaties to be disregarded on our part, because they were .entered into with an uncivilized people? Does this .lessen the obligation of such treaties? By entering into them, have we not admitted the power of this people to -bind themselves, and to impose obligations on us?

The president ai\d senate, except under the treaty-making power, cannot enter into compacts with the Indians, or with foreign nations. This power has been uniformly exercised in forming treaties with the Indians.

Nations differ from each- other in condition, and that of the. same nation may change by the revolutions of time, but the *583principles of justice are the same. They rest upon a base which will remain beyond the endurance of time.

After a lapse of more than forty years since treaties with the Indians have been solemnly ratified by the general government, it is too late to deny their binding force. Have the numerous treaties which have been formed with them, and the ratifications by the president and senate, been nothing more than an idle pageantry?

By numerous treaties with the Indian tribes, w.e have acquired accessions of territory, of incalculable value to the union. Except by compact, we have not even claimed a right of way through the Indian lands. We have recognised .in them the right to make war. No one has ever supposed that the Indians could commit treason against the United States. We have punished them for their violation of treaties; but we have inflicted the punishment bn them as a nation, and not on individual offenders among them as traitors.

In the executive, legislative, and judicial branches of our government, we have admitted, by the most solemn sanctions, the existence of the Indians as a separate and distinct people, and as being vested with rights which constitute them a state, .or separate community — not a foreign, but a domestic community — not as belonging to the confederacy, but as existing .within it, and, of necessity, beáring to it a peculiar relation.

But, can the treaties which have been referred to, and the law of 1802, be considered in force within the limits of the state of Georgia? ■

•In the act of cession, made by Georgia, to the United States, in 1802, of all lands claimed by her west of the line designated,.one of the conditions was, “that the United States shoald, at their own expense, extinguish, for the úse of Georgia, as early as. the same cán be peaceably obtained, on reasonable terms, the Indian title' to lands within the state of Georgia.”

One of the counsel, in the argument,, endeavoured to show, that no part of the country now inhabited by the Cherokee Indians, is within what is called the chartered limits of Georgia.

It appears that the charter of Georgia was surrendered *584by the trustees, and that, like the state of South Carolina, she became a regal colony. The effect of this change was, to authorise the crown to alter the boundaries, in the exercise of its discretion. Certain alterations, it seems, were subsequently made: but I do not. conceive it can be of any importance to enter into a minute consideration -of them. . Under its charter, it may be observed, that Georgia derived a right' to the soil, subject to the Indian title, by occupancy. By the act of cession, Georgia designated a certain line as the limit of that cession, and this line, unless subsequently altered, with the assent of the parties interested, must be considered as the boundary of the state of Georgiá. This line having been thus recognized, cannot be contested on any question which may incidentally arise for judicial decision.

It is important, on this part of the.case, to ascertain inwh'at light Georgia has considered the Indian title to lands, generally, and particularly, wi.hinher own boundaries; and also, as to the right of the Indians to self-government.

In the first place, she was a party to all the treaties entered into between the United States and the Indians, sipce the adoption of the constitution. And prior to that period, she was represented in making them, and was bound by their provisions, although it is alleged that she remonstrated against the treaty of Hopewell... In the passage of the intercourse law of 1802, as one of the constituent .parts of the union, she was also a party.

The stipulation made in her act of cession, that the United States should extinguish the Indian title to lands within the state, was a distinct recognition of the right in the federal government, to make the extinguishment; and also, that, until it should be made, the right of occupancy would remain in the Indians.

In a law of the state of Georgia, a for opening the land office and for other purposes,” passed in 1783, it is declared that surveys made on Indian lands were null and void; a fine was inflicted on the person making the survey, which, if not paid by the,offender, he was'punished by imprisonment. By a subsequent act, a line'was fixed for the Indians, which was a boundary between them and the whites. A similar provision is found in other laws of Georgia, passed before the adoption *585of the constitution. By an act of 1787, severe corporeal punishment was inflicted on those who made or attempted to make surveys, “ beyond the temporary line designating the Indian hunting ground.”

On the 19th of November 1814, the following resolutions were adopted by the Georgia legislature.

“ Whereas, many of the citizens of this state, without regard to existing treaties between the friendly Indians and the United States, and contrary to the interest and good policy of this' - state, have gone,' and -are. frequently going over, and settling and cultivating the lands allotted to the friendly Indians for their hunting ground, by which means the state is not only deprived of their services in the army, but considerable feuds are engendered between us and oür- friendly neighbouring Indians:

“ Resolved, therefore, by the senate and house of representatives of the state of Georgia in general assembly met, that his excellency, the governor, be, and is hereby requested to take the necessary means to have all intruders remóyed off the Indian lands, and that proper steps be taken to prevent future aggressions.”

In 1817, the legislature refused to take any steps to dispose of lands acquired by treaty with the Indians, until the treaty had been ratified by the senate; and, by a resolution, the governor was directed to have the line run between the' state of Georgia and the Indians, according to the late treaty. The same thing was again done in the-year 1819, under a recent treaty.

In a memorial to the president of the United States, by the legislature of Georgia, in 1819, they say, “ it has long been the desire of Georgia, that her settlements should be extended to her ultimate limits.” “That the soil within her boundaries should be subjected to her control; and, that her police organization and government should be fixed and permanent.” “ That the state of Georgia claims a right to the jurisdiction and soil of the territory within her limits;” “ She admits, however, that the right is inchoate — remaining to be perfected by the United States, in the extinction of the Indian title; the United States juro hac vice as their agents.”

The Indian title was also distinctly acknowledged by the act *586of 1796, repealing the Yazoo act. It is there declared, in reference to certain lands, that “ they are the sole property of the state, subject only to the right of the treaty of the United States, to enable the state to purchase, under its pre-emption right, the Indian title to the same;” and also, that the land is vested in the “ stale, to whom the right of pre-emption to the same belongs, subject only to the controlling power of the United Stat'e , to authorise any treaties for, arid to superintend the same.” This language, it will be Observed, .was used long before the act of cession.

On the 25th of March 1835, the governor of Georgia issued the following proclamation:

«Whereas it is provided in said treaty, that the United States shall protect the Indians against the incroachments, hostilities, and impositions of the whites, so that they suffer no imposition, molestation, or injury in their persons, goods, effects, their dwellings,' or the lands they occupy, until their removal shall have been acomplished, according to the terms of the treaty,” which had been recently made with the Indians.

“I,have'therefore thought proper to issue this my proclamation, warning all persons, citizens of Georgia or others, against trespassing or intruding upon lands occupied by the Indians, within the limits of Georgia, either for the purpose of settlement or otherwise, as ever}' such act will be in* direct violation of the provisions of the treaty aforesaid, and will expose the aggressors to the most certain and summary punishment, by the authorities of the state, and the United States.” «All good citizens, therefore, pursuing the dictates'of good faith, will unite in enforcing the obligations of the treaty, as the supreme law” &c.

Many other references might he made to the public acts of the state of Georgia, to show that she admitted the obligation of Indian treaties, but the above are believed to be sufficient. These acts, do honour to the character of that highly respect able state.

Under, the act of cession, the United State? were bound,, in good faith, to extinguish the Indian title to lands within the limits of Georgia, so soon as it could be done péaeeably and on reasonable terms.

*587The state of Georgia has repeatedly remonstrated to the president .on this subject, and called upon t.he government to lake the necessary steps to fulfil its engagement. She complained that, whilst the Indian title to immense tracts of country had been extinguished elsewhere, within, the limits of Georgia but little progress had been made; and this was attributed, either to a want of effort on the part of the federal government, or to the effect of its policy towards the Indiaqs. In one or more of the treaties, titles in fee.simple were given to the Indians, to certain reservations of land; and this was complained of, by Georgia, as a direct infraction of the condition of the cession. It has also been asserted, that the policy of the government, in advancing the cause of civilization among the Cherokees, and inducing them to assume the forms of a regular government and of civilized life, was calculated to increase their attachment to the soil they inhabit, and to render the purchase of their title more difficult, if not impracticable.

A full investigation of this subject may not be considered as strictly within the scope of the judicial inquiry which belongs to the present case. But, to some extent, it has a direct bearing on the question before the court; as it tends to show how the rights and powers of Georgia were construed by her public functionaries.

By the first president of the United States, and by every succeeding one,. a strong solicitude has been expressed for the civilization of the Indians. Through the agency of the government, they have been partially induced, in some parts of the union, to change the. huntér state for that of the agriculturist and herdsman.

In a letter addressed by Mr Jefferson to the Cherokees, dated the 9th of January 1809, he recommends them to adopt a regular government, that crimes might be punished and property, protected. He points out the mode by which a council should be chosen, who should have power to enact laws; and he also recommended the appointment of judicial and executive agents, through whom the law might be enforced. The agent of the government, who resided among them, was recommended to be associated with their council, that he might give the necessary advice on all subjects relating to their government.

*588In the treaty of 1817, the Cherokees are encouraged to adopt a regular form of government.

Since that time, a law has been passed making an annual appropriation of the sum of ten thousand dollars, as a school •fund, for the education of Indian youths, which has been distributed among the different tribes where s.chools had been established. Missionáry labours among the Indians have also been sanctioned by the government, by granting permits, to those who were disposed to engage in such a work, to reside ■in the Indian country.

That the means adopted by the general government to reclaim the savage from his erratic life, and induce him to assume the forms of civilization, have had a tendency to increase the attachment of the Cherokees to the country they now inhabit, is extremely probable; and that it increased the difficulty of purchasing their lands, as by act of cession the general government agreed to do, is equally probable.

Neither Georgia, nor the United States, when the cession was made, contemplated that force should be used in the ex-tinguishment of. the Indian title; nor that it should be procured on terms that are not reasonable. But, may it not be said, with equal truth, that it was not contemplated by either party that any obstructions to the fulfilment of the compact should be allowed, much less sanctioned, by the United States?

The humane policy of the government towards these children of the wilderness must afford pleasure to every benevolent feeling; and if the efforts made have not proved as successful as was anticipated, still much has been done. Whether the advantages of this policy should not have been held out by the government to the Cherokees within the limits of Georgia, as an inducement for them to change their residence and fix it elsewhere, rather than by such means to increase their attachment to their present home, as has been insisted on, is a question which may be considered by another branch of the government. Such a course might, perhaps, have secured to the Cherokee Indians all the advantages they have realized from the paternal superintendence of the .government; and have enabled it, on peaceable and reasonable terms, to comply with the act of cession

Does the intercourse law of 1802 apply to the Indians who *589live within the limits of Georgia ? The nineteenth section of that act provides, “that it shall not be construed to prevent any trade or intercourse with Indians living on landp surrounded by settlements'of the citizens of the United States, and being within the ordinary jurisdiction of any of the individual states ? This provision, it has been supposed, excepts from the operation of the law the Indian lands which lie within any state. A moment’s reflection will show that this construction is most clearly erroneous.

To constitute an exception to the provisions of this act, the Indian settlement, at the time of its passage, must have been surrounded by settlements of the citizens of the United States, and within the ordinary jurisdiction of a state; not only within the limits of a state, but within the common exercise of its jurisdiction.

No one will pretend that, this was the situation of the Cherokees who lived within the state of Georgia in 1802; or, indeed, that such is their present situation. If, then, they are.not embraced by the exception, all the provisions of the act of 1802 apply to them.

In the very section which contains the exception, it is provided, that the use of the road from Washington district to Mero district should be enjoyed, and that the citizens of Tennessee, under the orders of the governor, might keep the road in repair. And in the same section, the navigation of the Tennessee river is reserved, and a right to travel frotfi Knoxville to Price’s settlement; provided the Indians should not object.

Now, all these provisions relate to the Cherokee country; and can it be supposed, by any one, that such provisions would have been made in the act, if congress had not considered it as applying to the Cherokee country,, whether in the state of Georgia, or in the state of Tennessee ?

The exception applied, exclusively, to those fragments of tribes which are found in several of the states, and which came literally within the description used.

Much has been said against the existence of an independent power within a sovereign state; and the conclusion has been drawn, that the Indians, as a matter of right, cannot enforce their own laws within the territorial limits of a state. The refutation of this argument is found in our past history.

*590That fragments of tribes, having lost the power of self-government, and'who lived within the ordinary jurisdiction of a state, have been taken under the protection of the laws, has already been admitted. But there has been no instance, where the state laws have, been generally extended over a numerous tribe of Indians, living within the state* and exercising the right of self-government, until recently.

Has Georgia ever, before her late laws, attempted to regulate the Indian communities within her limits ? It is true, New York.extended her criminal laws over the remains of the tribes within that state, more for their protection than for any other purpose. These tribes were few in n.umber, and were surrounded by a white population. But, even the state of New York has never asserted the power, it is believed, to regulate their concerns beyond the suppression of crime.

Might not the same objection to this interior independent power, by Georgia, have been urged, with as much force as at present, ever since the adoption of the constitution? Her chartered limits, to the extent claimed, embraced a great number of different nations of Indians, all of whom were governed by their own laws, and were amenable only'to them. Has not this been the condition of the Indiahs within Tennessee, Ohio, and other states?

The exercise of thiis independent power surely does not become more objectionable, as it assumes the basis of justice and the forms of civilization. Would it not be a singular argument to admit, that, so long as the Indians govern by the rifle and the tomahayvk, their government may be tolerated; but, that it must be*suppressed, so soon as it shall be administered upon the enlightened principles of reason and justice?

Are not those nations of Indians who have made some advances. in civilization, better, neighbours than those who are still in a savage state? And is not the principle, as to théir self government, within the. jurisdiction -of a state, the same?

When Georgia sanctioned the constitution, and conferred on the national legislature the exclusive right to regulate commerce or intercourse with the Indians, did she reserve the right to regulate intercourse with the Indians within her limits? This will not be pretended. If shch had been the construction of her own powers,, would they riot have-been exercised? *591Did her senators object to the numerous treaties which have been formed with the different tribes, who lived within her acknowledged boundaries? Why did she apply to the executive of the union, repeatedly, to have the Indian title extinguished; to establish.a.line between the Indians and the state, and to procure a right of way through the Indian lands?

The residence of Indians, governed by their own laws, within the limits of a state, has never been deemed incompatible with state sovereignty, until recently. And yet, this has been the condition of many distinct tribes of Indians, since the foundation of the federal government.,

How is the question varied by the residence of the Indians in a territory of the United States? Áre mot the United States sovereign within their territories? And has it evet been conceived, by any one, that the Indian governments, which exist in the territories, are incompatible with the sovereignty of the union?

A state claims the right of sovereignty, commensurate with her territory;, as the United States claim it, in their proper sphere, to the extent of the federal limits. This right or power, in some cases, may be exercised, but not in others. Should a hostile force invade the country, at its most remote boundary, it would become the duty of the general government to expel the invaders. But it would violate the solemn compact's with the Indians, without cause, to dispossess them of rights which they possess by nature, and have been uniformly acknowledged by the federal government.

Is it incompatible, with state sovereignty to grant, exclusive jurisdiction to the federal government over a number of acres of land, for military purposes ? Our forts and arsenals, though situated in the different states, are not within their jurisdiction.

Does not the constitution give to the United States as exclusive jurisdiction in regulating intercourse with the Indians, as has been given to them over any other subjects ? Is there any doubt as to this investiture of power ? Has it not been exercised by the federal government, ever since its formation, not only without objection, but under the express sanction of all the states ?

The power to dispose of the public domain is an attribute *592of sovereignty. Can the new states dispose of the lands within their limits, which are owned by the federal government? The power to tax is also an attribute of sovereignty; but, can. the new states tax the lands of the United States ? Have they not bound themselves, by compact, not to tax the public lands, nor until five years after they shall have been sold ? May they violate this compact, at discretion ?

Why may not these powers be exercised by the respective states ? The answer is, because they have parted .with them, expressly for the general good. Why may not a state coin money, issue bills of- credit, enter into a treaty of alliance or confederation, or regulate commerce with foreign nations? Because these powers have been expressly and exclusively given to the federal government.

Has not the power been as expressly conferred on the federal government, to regulate intercourse with the Indians; and is it not as exclusively given, as any of the powers above enumerated? There being no exception to the exercise of this power, it must operate on all communities of Indians, exercising the right of self-government; and consequently, include those who reside within the limits of a state, as well as others. Such has been the uniform construction of this power by the federal government, and of. every state government, until the question was raised by the state of Georgia.

Under this clause of the constitution, no political jurisdiction over the Indians, has been claimed or exercised. The restrictions imposed by the law of 1802, come strictly within the power to regulate trade; not as an incident, but as a part of the principal, power. It is the same power, and is conferred in the same words, that has often been exercised in regulating trade with foreign countries. Embargoes have been imposed, laws of non-intercourse have been passed, and numerous acts, restrictive of trade, under the power to regulate commerce with foreign nations.

In the regulation of commerce with, the Indians, congress have exercised a more limited power than has been exercised in reference to foreign countries. The law acts upon ohr own cit zens, and not upon the Indians, the same as the laws referred to act upon our own citizens in their foreign commercial intercourse.

*593It will scarcely be doubted by any one, that, so far as the Indians, as distinct communities, have formed a connexion with the,federal government, by treaties; that such connexion is political, and is equally binding on both parties. This cannot be questioned, except, upon the ground, that in making ■these treaties, the federal government has transcended the treaty-making power. Such an objection, it is true, has been stated, but it is one of modern', invention, which arises out of focal circumstances; and is not only opposed to the uniform practice of .the government, but also to the letter and spirit of the constitution.

But the inquiry may be made, is there no end to the exercise of this power over Indians within the limits of a state, by the general government? The answer is, that, in its nature, it must be limited by .circumstances.

If a tribe of Indians shall become so degraded or reduced in numbers, as to lose the power of self-government, the protection of the local law, of necessity, must-be extended over them. The point at which this exercise of power by a state would be proper, need not now be considered: if indeed it be a judicial question. Such a question does not seem to arise in this case. So long as treaties and laws remain in full force, and apply to Indian nations, exercising the riglit of self-government, within the limits of a state, the judicial power can exercise no discretion in refusing to give effect to those laws, when questions arise under them, unless they shall be deemed unconstitutional.

The exercise of the power of self-government by the Indians, within.a state, is undoubtedly contemplated to be temporary. This is shown by the settled policy of the government, in the extinguishment of their title, and especially by the compact with the state of Georgia. It is a question, not of abstract right, but of public policy. I do not.mean to say, that the same moral rule which should regulate the affairs of private life, should not be regarded by communities or nations. But, a sound national policy does require that the Indian tribes within our states should exchange their territories, upon equitable principles, or, eventually, consent to become amalgamated in our political-communities.

At best they can enjoy a very limited independence within *594the boundaries, of a state, and such a . residence must always subject them to encroachments from the settlements around them; and their existence within a state, as a separate-and independent community, may seriously embarrass or obstruct the operation of the state laws. If, therefore, it would be inconsistent-with the political welfare of the states, and the social advance of their citizens, that an independent and permanent power should exist within their limits, this power must give way to the greater power which surrounds it, or seek its exercise beyond the sphere of state authority.

This state of things can only be produced by a co-operation of the state and federal governments. The latter has the exclusive regulation of intercourse with the Indians; and, so long as this power shall be exercised, it cannot be obstructed by the state. It is a power given by the constitution, and sanctioned by the most solemn acts of both the federal and state governments: consequently, it cannot be abrogated at the will of a state. lit is one of the powers parted with by the states, and vested in the federal government. But, if a contingency shall qccur, which shall render the Indians who reside in a state, incapable of self-government, either by moral degradation or a reduction of their numbers, it would undoubtedly be in the power of a state government to extend to them the aegis of its laws. Undér such circumstances, the agency of the general government, of necessity, must cease.

But, if it shall be the policy of the government to withdraw its protection from the Indians who reside within the limits of the respective states, ánd who not only claim the right of self government, but have uniformly exercised it; the laws and treaties which impose duties and obligations on the general government should be abrogated by the powers competent to do so. So long as those laws and treaties exist, having been formed within, the sphere of the federal powers, they must be respected and enforced by the appropriate organs of the federal government.

The plaintiff who prosecutes this writ of error, entered the Cherokee country, as it appears, with the express permission of the president, and under the protection of the treaties of the United States, and the law of 1802. He entered, not to corrupt the morals of this people, nor to profit by their substance; but to *595teach them, by precept and example, the Christian religion. If he be unworthy of this sacred office; if he had any other object than the one professed; if besought, by his influence, to counteract the humane policy of the federal government towards the Indians, and to embarrass its efforts to comply with its solemn engagement with Georgia; though his sufferings be illegal, he is not a proper object of public sympathy.

It has been shown, that the treaties and laws referred to come within the due exercise of the constitutional powers of the federal government; that they remain in full force, and consequently must be considered as the supreme laws of the land. These laws throw a shield over the Cherokee Indians. They guarantied to them their rights of occupancy, of self-government, and the full enjoyment of those blessings which might be attained in their humble condition. But, by the enactments of the state of Georgia, this shield is broken in pieces — the infant institutions of the Cherokees are abolished, and their laws annulled. Infamous punishmént is denounced against them, for the exercise Of those rights which have been most solemnly guarantied to them by the national faith.

Of these enactments, however, the plaintiff in error has no right to complain, nor can he question their validity, except in so far as they affect his interests. In this view and in' this view only, has it become necessary, in the present case, to consider the repugnancy of the laws of Georgia to those of the union.

Of the justice or policy of these laws, it is not my province to speak: such considerations belonging to the legislature by whom they were passed. They have, no doubt, been enacted under a conviction of right, by a sovereign and independent state, and their policy may have been recommended, by a sense of wrong under the compact. Thirty years have elapsed since the federal government engaged to extinguish the Indian title, within the limits of Georgia. That she has strong ground of complaint arising from this delay, must be admitted; but such considerations are not involved in the present case; they belong to another branch of the government. We can look only to the law, which defines our power, and marks out the path of our duty.

Under the administration of the laws of Georgia, a citizen of *596the United States has been deprived of his liberty; and, claiming protection under the treaties and laws of the United States, he makes the question, as he has a right to make it, whether the laws of Georgia, under which he is now suffering an ignominious punishment, are not repugnant to the constitution of the United States, and the treaties and laws made under it. This repugnancy has been shown; and it remains only to say, what has before been often said by this tribunal of the local laws of many of the states in this union, that, being repugnant to the constitution of the United States, and to the laws made under it, they can have no force to divest the plaintiff in error of his property or liberty.

Mr Justice Baldwin

dissented: stating that-in his opinion, the record was. not properly returned upon the writ of error; and ought to have been returned by the state court, and not by the clerk of. that court. As to the merits, he said his opinion remained the same as was expressed by him in the case of the Cherokee Nation v. The State of Georgia, at the last term.

The opinion of Mr'Justice Baldwin wasnotdelivéred to the reporter.

This cause came on to be heard on the transcript of the. record from the superior court for the county of Gwinnett, in the state of Georgia, and was argued by counsel; on consideration whereof, it is the opinion of this .Court, that the act of the legislature of the state of Georgia, upon which the indictment in this case is founded, is contrary to the constitution, treaties, and laws of the United States; and that the special plea in bar pleaded by the said Samuel A. Worcester, in manner aforesaid, and relying upon the constitution, treaties, and laws of the United States aforesaid, is a good bar and defence to the said indictment, by the said Samuel A. Worcester; and as such ought to have been allowed and admitted bjr the said superior court for the county of Gwinnett, in the state of Georgia, before which the said indictment Was pending and tried;’ and that there was error in the said superior court of the state of Georgia, in overruling the plea so pleaded as aforesaid. ■ It is therefore ordered and adjudged, that the judgment rendered in *597the premises, by the said superior court of Georgia, upon the verdict upon the plea of Not guilty afterwards pleaded by the said Samuel A. Worcester, wherebythe said Samuel A. Worcester is sentenced to hard labour in the penitentiary of the state of Georgia, ought to be reversed and annulled. And this court proceeding to render such judgment as the said superior Court, of the state of Georgia should have rendered, it is'further ordered and adjudged, that the said judgment of the said.superior court be, and hereby is reversed and annulled; and that judgment be, and hereby is awarded, that the special plea in bar, so as aforesaid pleaded, is a good and sufficient plea in bar in law to the indictme.nt aforesaid; and that all proceedings on the said indictment do for ever surcease; and that the said Samuel A. Worcester be, and hereby is henceforth dismissed therefrom, and that he go thereof quit without day. And that a special mandate-do go from this court, to the said superior court, to carry this judgment into execution.

In the case of Butler, Plaintiff in Error v. The State of Georgia, the same judgment was given by the court, and a special mandate was ordered from the court to the superior court of Gwinnett county, to carry the judgment into execution.