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in regard to the Indians, than to any other foreigners. It might certainly have been expected, as has in fact happened, that the Indians might have other reasons for preferring to sue in the Federal, rather than the State Courts, beside the danger of a want of uniformity in the judgments of the latter ; and it would have been particularly unjust and unreasonable not to extend to the class of foreigners to whom it was on every account more especially necessary, the appropriate remedy for the defects of these tribunals.

The Court finally remark, that "At the time when the Constitution was framed, the idea of appealing to an American court of justice for an assertion of right or a redress of wrong, had perhaps never entered the mind of an Indian or of his tribe. Their appeal was to the tomahawk or to the Government. This was well understood by the statesmen who framed the Constitution of the United States, and might furnish some reason for omitting to enumerate them among the parties who might sue in the courts of the United States. But although the state of civilization among the Indians at the time when the Constitution was framed, might have furnished a plausible reason for the omission of them in this enumeration, had they in fact been omitted, we cannot think that it furnishes any reason whatever for refusing to allow them the benefit of a clause, which is admitted to include them according to the ordinary and usual acceptation of the terms. It was certainly not the intention of the framers of the Constitution to give the right of suing in the Federal Courts to such foreign nations only as happened at that time to be in existence, or in a condition to use it; but to establish a rule, that should operate in favor of all foreign nations forever after. At the time when the Constitution was framed, the Spanish Colonies on our continent were not in a condition to take the benefit of this clause. It did not at that time enter into the minds of any of them, to think of claiming it; but it is not the less certain, that they now enjoy it as fully as if they were specified by name in the Constitution.

We cannot, therefore, concur with the Court in the general reasoning by which they attempt to show that the Indians are not to be considered as foreign States, for the purpose of suing in the Federal Courts. The argument drawn from the clause of the Constitution which authorizes Congress to regulate commerce, is more plausible, but to our minds not more decisive.

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A distinction is there taken between foreign nations and the Indian tribes; and if there were no particular reason for making such a distinction in this clause, it would be natural to conclude that the phrase, foreign nations, is used throughout the Constitution in such a sense as to exclude the Indians. But the fact is, as the Court themselves admit, that there was a particular reason for making a distinction in this clause between foreign nations and the Indians, which does not hold in regard to other parts of the Constitution. The ninth article of the old Confederation had left it in some degree uncertain, whether the management of the relations with the Indians belonged to the General Government, or to the States; and in order to avoid any future misconstruction, it was important that they should be mentioned by name in the article conferring the authority for this purpose. On reference to the Journals of the Convention, we find that the clause, as originally reported, stood as follows: “Congress shall have power to regulate commerce with foreign nations and among the several States.' The words, and with the Indian tribes, were afterwards added by way of additional security, in an amendment, and the form in which they were introduced shows at once why they were placed at the end rather than the middle of the clause. But the tenor of this clause and of the Constitution in all its parts, entirely precludes the idea, that the Indians were considered in any other light than as foreigners. Had they been regarded as in any sense subject to or dependent upon the United States, the power of governing them to the same extent must have been conferred on the General Government by a special clause. But the Constitution gives to the General Government no authority in regard to them, excepting such as it gives in regard to all foreigners. Under the authority to treat with foreign nations, the President has always treated with the Indians; under the clause which prohibits the States from treating with foreigners, the States have always abstained from treating with the Indians. And the power of regulating commerce with them,—the only one specifically conferred by the Constitution,-is also given in regard to all other foreigners. This consideration alone, if there were no other, affords sufficient evidence to satisfy our minds, that the Indians are throughout the Constitution recognised and treated as foreign States.

We will not, however, enlarge any farther on this point. Convinced as we are, that the opinion of the Court upon it is erroneous, and regretting as we do, that the error into which we suppose them to have fallen, should have operated as a delay, and, to a certain extent, denial of justice in a most important and interesting case, we are yet disposed, as we have already remarked, to acquit the Court entirely of all neglect, sinister intention, or undue bias, and to acquiesce with perfect cheerfulness in their decision. The case will no doubt be presented to them again in a form in which they will be able to take cognizance of it, and in which it may be tried upon its merits. Under such circumstances, we cannot permit ourselves to entertain a doubt of the issue.

The merits of this case have been fully discussed on both sides of the question in previous numbers of this journal, and as they are not touched upon in the opinion of the Court, we shall not, on this occasion, enter upon them in detail. We cannot, however, refrain from a very few cursory observations upon the statement made of them in a Message from the President to the Senate of the United States, of which we have placed the title at the head of this article.

This Message was transmitted by the President on the 22d of February, in reply to a call from the Senate, made on motion of Mr. Frelinghuysen, for information, whether the act of 1802 for regulating trade and intercourse with the Indian tribes, and preserving peace on the frontiers, had been carried into effect by the Government, and if not, for what reason the Government had declined to enforce it. The President states, in reply, that he is not aware of any omission to carry into effect the provisions of the act, so far as their execution depended on the agency confided to the Executive, and then enters upon a defence of his general policy in regard to the Indians." We cannot but consider this argument as one of the least successful attempts to make the worse appear the better reason, that we have ever met with. We can imagine, though with difficulty, that there may be among intelligent and well meaning men two opinions upon this subject; but we can hardly conceive it possible, that any intelligent man can be satisfied by the reasoning of this Message.

Our readers are aware, that the treaties between the United States and Cherokee Indians (whose case led to the inquiry of the Senate) recognise these Indians as a nation, guaranty to them the exclusive possession of, and jurisdiction over the territory marked out in the treaties, declare that they are

erroneous, and regretting as we do, that the error into which we suppose them to have fallen, should have operated as a delay, and, to a certain extent, denial of justice in a most important and interesting case, we are yet disposed, as we have already remarked, to acquit the Court entirely of all neglect, sinister intention, or undue bias, and to acquiesce with perfect cheerfulness in their decision. The case will no doubt be presented to them again in a form in which they will be able to take cognizance of it, and in which it may be tried upon merits. Under such circumstances, we cannot permit ourselves to entertain a doubt of the issue.

its

The merits of this case have been fully discussed on both
sides of the question in previous numbers of this journal, and
as they are not touched upon in the opinion of the Court, we
shall not, on this occasion, enter upon them in detail. We
few cursory
observations
cannot, however, refrain from a very
upon the statement made of them in a Message from the
President to the Senate of the United States, of which we have
placed the title at the head of this article.

This Message was transmitted by the President on the 22d of February, in reply to a call from the Senate, made on motion of Mr. Frelinghuysen, for information, whether the act of 1802 for regulating trade and intercourse with the Indian tribes, and preserving peace on the frontiers, had been carried into effect by the Government, and if not, for what reason the Government had declined to enforce it. The President states, in reply, that he is not aware of any omission to carry into effect the provisions of the act, so far as their execution depended on the agency confided to the Executive, and then of enters upon a defence of his general policy in regard to the Indians. We cannot but consider this argument as one the least successful attempts to make the worse appear the better reason, that we have ever met with. We can imagine, though with difficulty, that there may be among intelligent and well meaning men two opinions upon this subject; but we can hardly conceive it possible, that any intelligent man can be satisfied by the reasoning of this Message.

Our readers are aware, that the treaties between the United States and Cherokee Indians (whose case led to the inquiry of the Senate) recognise these Indians as a nation, guaranty to them the exclusive possession of, and jurisdiction over the territory marked out in the treaties, declare that they are

not under the jurisdiction of any State, stipulate that citizens of the United States shall not settle on their territory or enter it without a passport, and finally state, as one of the objects of these arrangements, the establishment by the Cherokees of fixed laws and a regular government, and the preservation of their national existence. These treaties are sixteen in number, beginning with that of Hopewell, concluded under the old Confederation in 1785, and ending with that of Washington, concluded in 1819. The act of 1802 was passed for the purpose of carrying into effect the provisions of these and the other Indian treaties. It states, among other things, that it shall be lawful for the President to take such measures and to employ such military force as he may judge necessary to remove from lands belonging to, or secured by treaty to any Indian tribe, any citizen who shall make a settlement thercon.' Instead of carrying into effect the provisions of the existing laws and treaties,-instead of employing the military force to remove the citizens who had intruded upon the territory of the Cherokees under a pretended authority from the State of Georgia, the President, as is well known, and as he admits himself in this Message, actually removed the troops that had previously been stationed in the Indian territory, and bas used, and is still using all the means in his power to remove the Indians themselves. The reasons given in the present Message for this extraordinary course, are as follows.

1. The clause in the Constitution, respecting the employment of the military force, is not imperative.

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The act provides, that nothing therein contained shall be so construed as to prevent any trade or intercourse with the Indians living on lands surrounded by settlements of citizens of the United States, and being within the ordinary jurisdiction of any of the individual States.' This provision the President interprets as 'prospective in its operation, and as applicable, not only to Indian tribes, which at the time of the passage of the act were subject to the jurisdiction of a State, but to such also as should thereafter become so. As soon, therefore, as Georgia had extended her jurisdiction over the Indians within her limits, orders were given to withdraw from the States the troops which had been detailed to prevent intrusion upon the Indian lands within it, and these orders have been executed.'

As to the first of these reasons, which is not much insisted

on, we shall merely remark, that the President is bound, by the Constitution and his oath of office, to take care that the laws are faithfully executed. The act of 1802 gives him the authority,—which he would, doubtless, have possessed without,to employ the military force for this purpose in the case in question ; and having this authority, he is bound by the Constitution and his oath of office to exercise it, if necessary. For a neglect of this, as of any other duty, he is liable to impeachment.

The second, which is the principal reason, supposes, of course, that the extension by Georgia of her jurisdiction over the territory and persons of the Cherokee Indians was a rightful act, and if this were the case, the reason would undoubtedly be valid. The President accordingly proceeds, in the rest of the Message, to a formal justification of the act of Georgia, and rests his defence upon his success in this attempt. But this act, as we have already remarked, is in open contravention of all the treaties with the Cherokees.The President himself, in the course of his argument, admits that such is the fact, and endeavors to remove the objection by proving, that the treaties are not valid. Without examining the reasons adduced in support of this position, which it would be easy to refute in detail, it is sufficient for our present purpose to remark, that the President, in taking upon himself to consider and decide upon the validity of treaties, quits his appropriate functions as an Executive officer, and assumes those which belong to another department of the Government. The Constitution declares, that all treaties are the supreme law of the land, any thing in the Constitution and laws of any State to the contrary notwithstanding. As a member of the Legislative department of the Government, having a negative upon the proceedings of the other branches, it is the duty of the President to form and express an opinion upon all bills, that are submitted to bim during his administration. As the head of the Executive department, his functions are purely ministerial, and he has no more right to question the validity of the laws or treaties which he executes, than the marshal who acts under him. As an individual, he was, of course, at liberty to speculate at discretion upon this or any other subject. As President of the United States, he was bound by the Constitution and his oath of office to see that the treaties were faithfully executed. In neglecting to do this, from the avowed motive

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