by: Joshua J. Conrad
This paper was awarded the Loyola University History Award for Outstanding Semester Research Paper for the 2000-2001 Academic Year.
At the beginning of the nineteenth century, morality and humanitarian
thought became an increasingly important agenda in the lives of Americans.
Every state legislature in the North had abolished slavery by the end of
the first decade, and abolitionist newspapers, detailing the horrors of
slavery, began to be printed and read throughout New England. The
South, in an effort to preserve its economic livelihood, passed laws in
order to maintain a tight grip on the bondage of Africans. Similarly,
theories of racial inferiority were introduced into intellectual thought.
These laws and theories, however, were not limited to Africans as acts
pertaining to American Indians passed through southern legislatures as
well. Georgia, in particular, passed many laws that claimed jurisdiction
over lands that were occupied by the Cherokee Indians.
The reasons for Georgia ultimately passing these laws derived not from
an isolated incident, but from a long history of economical and racial
motives. In an effort to curb this aggression by Georgia, the Cherokees
brought two cases before the United States Supreme Court in a clash that
is today called the Cherokee Cases. Specifically, the Supreme Court
in Cherokee Nation v. Georgia denied an injunction by the Cherokees due
to the Cherokee Nation not being a sovereign and independent nation. A
year later, the Court sided with the Cherokees in Worcester v. Georgia,
claiming the laws against the Cherokees unconstitutional. In deciding
these cases, the justices of the Supreme Court struggled not with only
the mere legal questions of the cases, but also with difficult moral ideologies
surrounding the issue.1
Long before the laws in question were to be tried before the highest
court in America, Georgia, along with the rest of the South, experienced
a huge economical change. Before the Industrial and Transportation
Revolutions, products such as rice, tobacco, and indigo were staple crops
of the South. Many factors, such as the flooding of the tobacco market
and an exhaustion of previously fertile land, led plantation owners of
the South to look for a new yet profitable product. When Eli Whitney
and Phineas Miller perfected the cotton gin and began to sell this revolutionary
product in 1793, cotton soon became the popular money making crop of the
Deep South. Soon, many plantation owners began to plant cotton exclusively
and abandon traditional cash crops. As production increased, many
farmers began to move west to clear new lands.2
To this end, the plantations pushing west to use this new land along with
the invention of the cotton gin brought about “a period of favorable economic
change in the South.”3
While the economy of the area was improving, the population of the
South also began to expand. The populations of Alabama and Mississippi
exploded from 40,000 in 1810 to 200,000 in 1820 as they were admitted into
the union in 1817 and 1819, respectively.4
Older states, such as Tennessee, Ohio, and Georgia, also increased in size
from 750,000 people in 1810 to over two million in 1830. But unlike
Alabama and Mississippi, the previously established Indian Territory borders
prohibited the states of Georgia and Tennessee from expanding westward.
5 Therefore, Georgia coveted the land of the
Cherokees because a growing population was creating a demand for more space.
Furthermore, the land that the Indians occupied was amazingly fertile and
perfect for growing high yields of cotton.
The discovery of gold and the potential for a port on the Tennessee
River added to the economic motives of Georgia. In July 1829, gold
was discovered on land that was inhabited by the Cherokees. Rumors
spread of huge deposits, and men from several states illegally invaded
Cherokee borders to claim their fortune. Georgia, now craving this
wealthy land, chided both Cherokees and whites from other states as they
passed laws that declared mining for gold in these deposits illegal.6
Interestingly, this law was challenged in a Georgia court and the law was
struck down, “but executive ignored the ruling of the court of his own
state.”7 The desire for wealthy land remained
so intense that even the different branches of Georgia’s government quarreled.
Equally important, the Cherokee Indians occupied land that bordered the
Tennessee River, which connected to the Ohio and Mississippi rivers.
Georgia wanted this land to build a port in order to increase its domestic
trade with the other states. Economic theorists of the time “argued
that Georgia’s full potential could never be reached until it could tap
that vast inland market.”8 Politicians of the state
wanted to build railroads that connected the agricultural inland of the
state to a proposed port on the Tennessee, “But nothing could be done as
long as the Cherokees remained in place.”9
Strengthening the institution of slavery, which was critical to the
plantation economy of Georgia, marks another possible motive for laws claiming
jurisdiction over Cherokee lands. As stated earlier, the abolitionist
movement was gaining support as every state in the North abolished slavery
by 1804.10 Trying to keep a majority of votes
in Congress was one of the ways the South reacted to these abolitionist
sentiments. If Georgia could replace the Cherokees with white voters,
southern representation would increase in the House of Representatives.
By expanding pro-slavery influence in Congress, Georgia and the South could
check the increasingly liberal northerners in the House and maintain a
strong hold on the institution.11
New, increasingly rigid views of race and inferiority also contributed
to Georgia’s passing of laws against the Cherokees. This new ideology
of Indians and blacks being inferior to the white race was closely connected
to the economic expansion of the Cotton Kingdom in the Deep South.
Historian Reginald Horsman contends that hope gave way to despair due to
present social conditions as he writes:
The political rhetoric of 1800 was permeated with optimism for the human race and a belief in racial improbability; that of 1850 with pessimism for inferior races. Part of this change was simply a product of the incredible material success of the “Anglo Saxons,” the failure to assimilate Indians, and the continued enslavement of blacks.12
Indeed, the population of slaves grew as the Cotton Kingdom expanded.
In 1790 there had not even been 700,000 slaves in the United States; by
1830 there were over two million.13 This
increase of the number of blacks in America refined and increased the racial
rhetoric of the South. Plantation owners relied more on slave labor for
their economic livelihood at the first half of the nineteenth century more
than any other time in American history. Moreover, the growing popularity
of the abolitionist movement in the North continually forced southern intellectuals
to polish philosophies of racial inferiority.
While this may be true, racist ideology was not limited to Africans.
Before major assimilation attempts of the Cherokees and other Indian tribes
were made by the United States, Indians were thought to be culturally,
rather than racially inferior.14 But in trying
to justify slavery by claiming that the white race was superior to all
other races, many southerners began to consider that the Cherokees were
also an inferior race. Although historians still debate on whether
or not assimilation of the Cherokees was ultimately successful, the politicians
of Georgia insisted that assimilation attempts had failed. John Forsyth,
a Senator for Georgia argued Indians were “a race not admitted to be equal
to the rest of the community… treated somewhat like human beings, but not
admitted to be freemen…and probably never will be entitled to equal civil
and political rights.”15 Wilson Lumpkin,
a Georgia Representative, contended that mix-blooded Cherokees—those with
both Cherokee and white heritage—were racially superior to full-blooded
Cherokees as he explained:
The principal part of these enjoyments [schools, houses, Christianity] are confined to the blood of the white man, either in whole or in part. But few, very few of the real Indians participate largely in these blessings. A large portion of the full blooded Cherokees still remain a poor and degraded race of human beings…. From what I have seen, I can readily concluded that but a very small portion of the real Indians are in a state of improvement, whilst their lords and rulers are white men, and the descendents of white men…upon which they foster, feed, and clothe the most violent and dangerous enemies of our civil institutions.16
Lumpkin, like other Georgians, concluded that Cherokee assimilation
had failed because Indians were an inferior race incapable of being equal
in intelligence and in culture to the white man.
With these economic and racial ideologies in mind, the state
legislature of Georgia passed a continuous series of laws in 1829 and 1830
that claimed sovereignty over Cherokee lands.17
Some of the laws, which were to go into effect throughout 1831, were aimed
at encouraging migration westward while other laws openly stated that the
Cherokees would be treated as unequal.18 For
example, an Indian could no longer testify against a white man in Georgia
State court, nor could chiefs of tribes meet or attempt to meet in the
addressed territory.19
Although the persisting economical and racial factors were at play,
Georgia justified the actual seizing of Cherokee land merely on an 1802
ordinance with the United States government. In this ordinance, the
federal government would remove all Indians within boundaries claimed by
Georgia “as soon as it could be done under peaceably and reasonable terms,”
while Georgia agreed to cede land to the future states of Alabama and Mississippi.
20 According to the Georgia governor and legislature,
the United States government had not only failed to carry out its end of
the deal, but had also “aided and abetted” permanent settlement by encouraging
Cherokee assimilation.21
The legal pressure that Georgia asserted on the Cherokees was
not only very harsh, but also too late. A principle intention of
assimilation was to “civilize” the Cherokees while at the same time “release
countless thousands of acres of ‘surplus’ land for white occupation.”22
Successful attempts of assimilation backfired, however, as the “civilized”
Indians became involved in the plantation economy of the South and “knew
the true value of their lands and refused to part with them.”23
The Cherokee Constitution, which was molded from basic principals that
appear in the United States Constitution, reaffirmed the Cherokees refusal
to leave the land as it declared current boundaries “shall hereafter remain
unalterably the same” and “lands herein are, and shall remain, the common
property of the [Cherokee] Nation.”24 So
many Cherokees practiced agriculture, it was nearly impossible to find
an Indian that followed the traditional hunter-gatherer lifestyle.
Regarding Indians who hunt for a living, the missionary Samuel Worcester
wrote, “I certainly have not found them, not even heard of them, except
from the floor of Congress, and other distant sources of information.”25
Because assimilation grew so rapidly, many new aspects of Cherokee life
mirrored a white southern lifestyle. Consequently, the
Indians, who were attached to European ways and fertile land, refused to
leave.
The Cherokees, who were certain their rights were being violated,
turned to the federal government for help. It was soon clear however,
that they would receive no help from the new president Andrew Jackson.
A famous Indian fighter, Jackson viewed the issue as a feud between Georgia
and the Cherokees and asserted the federal government “could not prevent
the states from extending their jurisdiction over Indian Territory.”26
Hoping for intervention by the Supreme Court, the Cherokees hired lawyers
William Wirt and John Sergeant. These famous Cherokee lawyers immediately
questioned the legality of Georgia’s legislation when an Indian named Corn
Tassel was accused of murdering a fellow Indian and was arrested by Georgia
authorities. Wirt and Sergeant challenged the validity of Georgia
law by claiming Tassel was illegally arrested because only Cherokee law
could be applied to the accused. Appealing to the United States Supreme
Court, Wirt and Sergeant applied for a writ of error, which was granted.27
Georgia openly condemned the order reporting that “the interference by
the Chief Justice of the Supreme Court of the United States in the administration
of criminal laws of this state was a flagrant violation of her rights”
and Tassel was executed.28
With the criminal case of Tassel moot, Wirt and Sergeant tried another
strategy to get Georgia’s laws to the Supreme Court. Three days after
the death of Tassel, Wirt and Sergeant made motions for a subpoena of the
Governor and attorney general of Georgia, along with an injunction to declare
the laws of Georgia that extended jurisdiction over the Cherokees void.
The Cherokees sued Georgia contending they were a foreign nation and, therefore,
owed no allegiance to the United States or Georgia.29
Afraid that the Court would refuse to hear the case, Wirt sought Chief
Justice John Marshall’s opinion on the matter before bringing the injunction.
Wirt wrote a letter to his best friend, Judge Dabney Carr of the Virginia
Court of Appeals, asking Carr to converse with Justice Marshall on the
issue. Although refusing to give an official opinion, Marshall stated
that he “wished, most sincerely, that both the Executive and Legislative
departments had thought differently on the subject.” “Humanity,” Marshall
noted, “must bewail the course which is pursued, whatever may be the decision
of policy.”30 Wirt, now knowing that Marshall
had sympathies for the Cherokees, proceeded with the case.
Hearings for Cherokee Nation v. Georgia began on March 5, 1831, and
the Cherokee lawyers raised questions of jurisdiction and morality in their
argument. While Georgia refused to send legal counsel, Wirt and Sergeant
exhaustingly argued the Court’s jurisdiction alleging “that from time immemorial
the Cherokee nation have composed a sovereign and independent state,” and
then gave several examples of the United States government treating the
Cherokees as a foreign nation.31 The Cherokee
lawyers also knew that the question of enforcement laid heavily on the
minds of the Justices due to fear that President Jackson would disregard
a ruling that declared Georgia’s laws void. Near the end of the hearing,
Wirt addressed this anxiety and pleaded with the Court not to let this
question interfere with a just decision as he as he concluded:
In pronouncing your decree you will have declared the law; and it is part of the sworn duty of the President of the United States to ‘take care that the laws will be faithfully executed.’… If he refuses to perform his duty, the Constitution has provided a remedy. But is this Court to anticipate that the President will not do his duty, and to decline a given jurisdiction in that anticipation…. I believe that if the injunction shall be awarded, there is a moral force in the public sentiment of the American community, which will, alone sustain it and constrain obedience.32
Even though they had thoroughly illustrated the legal basis for the
case, Wirt and Sergeant hoped that by raising the issue of morality, the
Justices would disregard the threat of President Jackson, feel sympathy
for the Cherokees, and rule in their favor.
When the opinions were read, the Supreme Court had ruled against the
Cherokee nation, and although the official verdict was four to two, three
separate pairs of opinions had emerged.33 Chief
Justice Marshall wrote an ingenious decision that was reminiscent of the
famous Marbury v. Madison opinion.34 Like
Marbury, Marshall denied jurisdiction while criticizing a popular president.35
Writing for the
majority of the Court, Marshall commented on the moral complications
of the case as he wrote, “If courts were permitted to indulge their sympathies,
a case better calculated to excite them can scarcely be imagined.”36
Truly, the Chief Justice felt compassion for the Cherokees explaining “this
is not the tribunal which can redress the past.”37
Nevertheless, Marshall refused to abandon his construction of the Constitution
as he tagged the Cherokees “domestic dependent nations” and denied
authority in the matter.38 At the same time,
the Chief Justice asserted that the wrong legal precedent had been brought
to the Court by the Cherokee lawyers and suggested that the Court could
hear another case, brought on different legal principles.39
Justices William Johnson and Henry Baldwin both wrote concurring
opinions but disagreed sharply with Marshall’s majority opinion. Due to
the stress on state rights and moral consideration, Johnson “found the
case wholly political” and, therefore, “inappropriate for judicial consideration.”40
Johnson also speculated that if the Cherokees were a foreign nation, “the
acts of the Georgia legislature were acts of war not to be settled by courts.”41
Justice Baldwin complained that Marshall’s “reasons for the judgement…seem
to me more important than the judgement itself.”42
Worried that the Chief Justice’s opinion relied on ethics rather than legal
reasoning, Baldwin warned, “The opinion of this court is of high authority
in itself; and the judge who delivers it has a support as strong in moral
influence over public opinion, as any human tribunal can impart.”43
Baldwin disagreed with Marshall’s sympathetic view to the point that he
titles himself as a dissenting judge.44
The final pair of Justices, Smith Thompson and Joseph Story,
dissent on the legal basis that the Cherokees did in fact represent a foreign
nation, but humanitarian factors may have played a role in the writing
of the Thompson’s dissent.45 When the Court
rose on the eighteenth of March, Thompson’s opinion had not been read,
nor had it even been written. Marshall, who was angered that the
Jacksonian Press had praised Cherokee Nation, “encouraged the dissenters,
Thompson and Story, to write an opinion.”46
Thompson explored many topics that Marshall had not addressed in the majority
opinion, and the rhetoric answered arguments that were pointed out in both
Johnson’s and Baldwin’s opinions.47 Feeling
pity for the Cherokees’ complex problem, Thompson stated, “Relief to the
full extent prayed by the bill may be beyond the reach of this court.”48
Although no opinion was written by Justice Story, he later commented on
the ethical difficulties of the case as he observed, “The subject touches
the moral sense of all New England. It comes home to the religious
feelings of our people; it moves their sensibilities, and strikes to the
very bottom of their sense of justice.”49
Georgia, with support from President Jackson and the Supreme
Court’s denial of jurisdiction, continued to hold the Cherokees under tight
legal pressure. Throughout 1831, several missionaries that resided
in Cherokee lands were arrested. Georgia justified these arrests by pointing
to section seven of an 1830 legislature act that stated:
That all white persons residing within the limits of the Cherokee
nation, on the first day of March next [1831], or anytime thereafter,
without a license or permit, from his Excellency the Governor…and who shall
not have taken the oath [of allegiance to Georgia] hereinafter required,
shall be guilty of an high misdemeanor, and upon conviction thereof, shall
be punished by confinement in the Penitentiary at hard labor, for a term
not less than four years.50
Samuel Worcester, among others, was indicted under this law and went
to trial at the Gwinnett County Superior Court in Lawrenceville, Georgia
on September 15, 1831.51 In his defense,
Worcester pleaded that the Georgia Court had no jurisdiction in the matter.
Summarily, the missionaries were found guilty, jailed, and all but Worcester
and Elizur Butler took an oath of allegiance to Georgia in return for a
pardon.52
The conditions surrounding the issue remained hostile as Worcester
turned to William Wirt, who was preparing an appeal to the United States
Supreme Court in an effort to bring the question of Indian sovereignty
before the Court once again. The Supreme Court issued a writ of error
to the County Superior Court in Georgia, and when the Governor of Georgia,
Wilson Lumpkin, received the writ he proclaimed, “Any attempt to reverse
the decision of the Superior Court…will be held by this State as an unconstitutional…interference
in the administration of her criminal laws.”53
Meanwhile, Americans who supported the Cherokees called the imprisonment
of Worcester and Butler a “inhuman and unconstitutional outrage.”54
Under this high level of public consciousness, the Supreme Court began
to hear arguments Worcester v. Georgia, and Wirt professed the merits of
the case while an element of moral concern permeated throughout the courtroom.
Again, Georgia refused to send counsel. An observer of Wirt’s argument
wrote, “Several Cherokees…were present; and the deep solicitude depicted
in their countenances must have moved the sympathy of every one present
whose heart was not as hard as adamant.”55
Justice Story, who was impressed with Wirt’s plea, wrote, “I confess that
I blush for my country when I perceive that such legislation, destructive
of all faith and honor towards the Indians, is suffered to pass with…the
present Government of the United States.”56
Chief Justice Marshall again wrote the majority
opinion and this time the Court sided with the Cherokees as he said jurisdiction
was “too clear for controversy.”57 In an
effort to establish Indian sovereignty, Marshall presented several instances
in which the government had made treaties with the Cherokee and other Indians
and then concluded:
The very term “nation,” so generally applied to them, means “a people
distinct from others.” The constitution [sic], 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 nations of the earth. They are applied to
all in the same sense.58
The Chief Justice then declared the Cherokee Nation as “a distinct community
occupying its own territory,” and, consequently, ruled “the act of the
state of Georgia, under which the plaintiff in error was prosecuted, is
consequently void, and the judgment a nullity.”59
Although Marshall offered a different outcome than in 1831, much of
the ethical reasoning of Worcester did not differ greatly from that of
Cherokee Nation. No longer feeling reserved due to a lack of jurisdiction,
the Chief Justice could extensively discuss the merits of the case.
Many aspects of Worcester, in fact, are “borrowed freely from Thompson’s
dissenting opinion in Cherokee Nation.”60 One
could suggest that Wirt’s argument was more convincing to Marshall in 1832
than it was in 1831. In fact, Judge Story reported that “Judge Marshall
was affected to tears by the eloquent peroration of Wirt.”61
Perhaps Marshall felt a greater urgency to “indulge his sympathies” in
Worcester due to the change in the composition of the Court. Judge
Gabriel Duvall, who sided with the Cherokees, had returned while Justice
Johnson, an opponent of the Indian sovereignty, was now absent.62
In any event, the majority of the court agreed with the Cherokee counsel
partially from moral, rather than legal, reasoning.
Narrowly defining Indian sovereignty, Justice McLean wrote a
concurring opinion explaining “the exercise of the power of self-government
by the Indians, within a State, is undoubtedly contemplated to be temporary.”63
Justice Baldwin, although officially dissenting on a technicality, wrote
the merits of the case were the same as in his opinion in Cherokee Nation.64
Tragically, the Supreme Court could only declare Georgia’s laws
void; they could not, however, enforce the decision. Knowing that
the Court had made the right decision, Justice Story wrote, “The Court
has done its duty, now let the nation do theirs. If we have a government,
let its command be obeyed; if we have not, it is as well to know it at
once, and to look at the consequences.”65
These fears were not unfounded as Georgia refused to change its policy
toward the Cherokee and President Andrew Jackson would not interfere in
the matter. In 1935, Jackson exploited factions within in the tribe
and signed a treaty, which agreed to westward migration, with an unpopular
minority of the Cherokees.66
With the signing of this treaty, the Cherokee Nation began the infamous
“Trail of Tears” death march into Indian Territory west of the Mississippi
River. Although Jackson deserves blame for the execution of the treaty,
the Trail of Tears has its roots in the economic structure and increased
racial tension in Georgia and the rest of the South. As cotton became
the dominating cash crop, the South adopted increasingly rigid views of
race. The laws of Georgia that claimed jurisdiction over the Cherokees,
a product of these economical and racial factors, were challenge by the
Wirt and Sergeant in the United States Supreme Court. After denying
jurisdiction in Cherokee Nation, the Marshall Court ruled in Worcester
that the Georgia laws that curbed the freedom of the Cherokees, who were
a distinct and sovereign tribe, were unconstitutional. Although they
based their opinions on legal precedent, the justices were clearly affected
by their own moral virtues and the ethic ideology surrounding the Cherokee
Cases.
Notes
1Cherokee Nation v. The State of Georgia 30 U.S.
(5 Peters) 1 (1831); Worcester v. The State of Georgia 31 U.S. (6 Peters)
515 (1832)
2John Hope Franklin and Alfred A. Moss Jr., From Slavery
to Freedom: A History of African Americans, 8th ed., vol. 1 (New York:
McGraw-Hill, 2000), 100.
3Ibid.
4Ibid., 126.
5Theda Purdue and Michael Green, The Cherokee Removal:
A Brief History with Documents (Boston: Bedford Books of St. Martin’s Press,
1995), 15.
6Ulrich Bonnell Phillips, “The Expulsion of the Cherokees”
in Louis Filler and Allen Guttman, eds., The Removal of the Cherokee Nation:
Manifest Destiny of National Dishonor? (Boston: D.C. Heath and Company,
1962), 5-6. The State of Georgia created these laws that prohibited mining
under the premise that the land was part of Georgia and not owned, but
inhabited by the Cherokee Indians.
7Thomas V. Parker, The Cherokee Indians, With a Special
Reference to Their Relations with the United States Government (New York:
Grafton Press, 1907), 21.
8Purdue, The Cherokee Removal, 59.
9Ibid., 59-60.
10William Lee Miller, Arguing about Slavery: The Great
Battle in the United States Congress (New York: A.A. Knopf, 1996), 17.
“Vermont in 1777, on becoming a state, was by its own constitutional prohibition
the first state without slavery; Massachusetts, by constitutional interpretation,
was next, in 1781. In most other states, emancipation was gradual.
New Jersey, in 1804, enacted the last emancipation act of a northern state.”
11Ibid., 60. Purdue argues that the South’s
fear of an anti-slavery dominated Congress came from the Missouri Compromise
of 1821. This anxiety, however had origins long before the Missouri
Compromise and, for example, can be seen in the debates of the Constitutional
Convention and in the debates of Congress. For discussions of this
see Miller, Arguing about Slavery.
12Reginald Horsman, “Scientific Racism and the American
Indian in the Mid-Nineteenth Century,” American Quarterly 27, no. 2 (1975):
153.
13Franklin, From Slavery to Freedom, 139.
14The United States Congress granted funds to stimulate
Cherokee assimilation. For example, “In 1792 Congress appropriated funds
for the agricultural portion of the thrust, and for teaching Indian women
the domestic arts.” Also, “In 1798…the federal government gave Cherokees
three hundred plows, thirty pairs of cotton cards, and any number of spinning
looms.” John Ehle, Trail of Tears: The Rise and Fall of the Cherokee
Nation (New York: Anchor Books, 1988), 55, 58.
15Purdue, The Cherokee Removal, 15.
16Wilson Lumpkin, “Speech Before Congress (May 17,
1930)” in Filler ed., The Removal of the Cherokee Nation, 37.
3730 U.S. 20.
3830 U.S. 17.
3930 U.S. 20; Burke, “A Study in Law, Politics, and
Morality,” 515; Purdue, The Cherokee Removal, 68.
40Donald B. Morgan, Justice William Johnson, the First
Dissenter: The Career and Constitutional Philosophy of a Jeffersonian Judge
(Columbia: University of South Carolina Press, 1954), 89.
41 Donald Malcolm Roper, Mr. Justice Thompson and
the Constitution (New York: Garland Pub., 1987), 240.
4230 U.S. 32.
43Ibid.
4430 U.S. 32, 48; Burke, “A Study in Law, Politics,
and Morality,” 515.
45 Roper, Mr. Justice Thompson, 245.
46Burke, “a Study in Law, Politics, and Morality,”
516.
47Ibid.
4830 U.S. 51.
49Warren, The Supreme Court, 750. Story did
not offer an opinion, but Thompson wrote “I am authorised [sic] by my brother
Story to say, that he concurs with me in this opinion.” 30 U.S. 80.
50Worcester v. The State of Georgia, 31 U.S.
(6 Peters) 515 (1832), 523.
51John Hutchins, “The Trial of Reverend Samuel A.
Worcester,” Journal of Cherokee Studies 2, no. 4 (1977): 370.
52Ibid., 371.
53Warren, The Supreme Court, 754.
54Burke, “A Study in Law, Politics, and Morality,”520.
Speech given by James Barbour at the National Republican Convention and
published in the Niles Register Weekly, 24 December, 1831, p. 307,
col. I.
55Warren, The Supreme Court, 755.
56Ibid.
57Norgren, “Limits of Legal Action,” 19.
5831 U.S. 559-560.
5931 U.S. 561.
60Burke, “A Study in Law, Politics, and Morality,”
522.
61Warren, The Supreme Court, 756.
62Roper, Mr. Justice Thompson, 245.
6331 U.S. 593.
6431 U.S. 597.
65Warren, The Supreme Court, 757.
66Daniel Feller, The Jacksonian Promise: America,
1815-1840 (Baltimore: John Hopkins University Press, 1995), 181.