Without Precedent

by Joel Richard Paul

  The South had begun talking openly of secession. The latest secession crisis was precipitated by the fight over tariffs. Tariffs protected northern manufacturers, but they disadvantaged the southern states that depended on selling cotton and tobacco abroad. They also raised the price that southerners had to pay for imports and manufactured goods from New England. Marshall warned Story: “The crisis of our constitution is now upon us. A strong disposition to prostrate the judiciary has shown itself and has succeeded to a considerable extent. I know not what is in reserve.”11

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  THE CREEK AND THE CHEROKEE once occupied a large arc along Georgia’s western frontier. As white settlers moved farther west in search of larger tracts, the proud tribes defended their ancestral homeland. Georgia forced the Creek to move west, but it could not persuade the Cherokee to leave their homes. After the discovery of gold on Cherokee land in 1828, Georgia enacted a series of laws aimed at pushing the Cherokee off their land. Georgia pushed through legislation that voided Indian law and asserted jurisdiction over the tribal members and their land effective June 1, 1830. Indians would be denied the most basic civil rights. They could not appear in court against a white man. The state seized control over the gold mines and forbade Indians to work there. The state militia was posted to protect mining operations from the native inhabitants.12

  But the Cherokee were not without allies. Incensed by Georgia’s treatment of the Indians, New England Congregationalists protested, raised money, and sent missionaries to help the Cherokee. National Republicans, such as Webster and Clay, also aligned with the Cherokee in opposition to the Jacksonian Democrats. At Webster’s recommendation, the Cherokee Nation hired former Attorney General William Wirt, who in 1831 sought an injunction in the U.S. Supreme Court to prevent Georgia from exercising jurisdiction over the Indians in violation of federal law. He was assisted by his co-counsel, John Sergeant, another prominent Supreme Court advocate. The Supreme Court usually hears only appeals from lower courts, but it can conduct trials where a case is brought by a foreign government against a U.S. state. Wirt asserted that since the Cherokee Nation was a foreign sovereign, it had the right to sue the state before the U.S. Supreme Court without first suing in the state courts.

  Webster and Wirt had another reason for filing this case in the Supreme Court. They hoped that a Court decision would become an issue in the 1832 presidential election. Both Webster and Wirt had ambitions of running against Jackson, and they hoped that a decision in favor of the Indians would embarrass Jackson.13

  The stakes in Cherokee Nation v. Georgia could not have been higher. While secessionist talk hung in the air, Georgia framed the issue as one of states’ rights: States should be free to control their Indians just as they controlled their slaves. Georgia Senator John Forsyth argued on the Senate floor that the State of Georgia controlled both Indian territory and its inhabitants. The rights of Indians could be disposed of either by “trifling presents” and “poisonous potations” or by “the sword,” Forsyth asserted.14

  While the case was pending before the Supreme Court, President Jackson, already committed to the forced removal of the Indians, warned the Indians that his plan to remove them was more “liberal” and humane than the alternative—extermination: “Humanity has often wept over the fate of the aborigines of this country,” Jackson acknowledged, “but its progress has never for a moment been arrested, and one by one have many powerful tribes disappeared from the earth.” The president continued that this was just an unfortunate but unavoidable fact of nature like “the extinction of one generation to make room for another.” After all, “[w]hat good man would prefer a country covered with forests and ranged by a few thousand savages to our extensive Republic, studded with cities, towns, and prosperous farms, embellished with all the improvements which art can devise or industry execute, occupied by more than 12,000,000 happy people, and filled with all the blessings of liberty, civilization, and religion?”15

  Georgia chose not to appear before the Supreme Court. The governor cavalierly insisted that since the Court had no jurisdiction there was no reason for the state to defend against the meritless claims of “savages.” Wirt and Sergeant presented their argument on behalf of the Cherokee Nation over two days. There were members of the Cherokee tribe present in the public section of the crowded courtroom. Some wept openly as Wirt described how the state had set out to crush a once proud and independent nation. The chief justice listened intently while shifting uncomfortably in his chair and grimacing. It was not the argument that troubled him; Marshall was beginning to experience acute abdominal pain that was later diagnosed as bladder stones.16 The Daily National Intelligencer later lauded Wirt’s argument as “one of the most splendid discourses ever pronounced in that court, and as powerful in argument as it was beautiful in diction.” The New York Journal of Commerce called it “sublime.”17

  On March 18, 1831, four days after the argument concluded, Marshall read his opinion from the bench. As in prior cases involving slaves and Indians, Marshall began by acknowledging the need to divorce moral imperatives from legal requirements: “If courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined. A people once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking beneath our superior policy, our arts and our arms, have yielded their lands by successive treaties.”18

  The real issue in the case was whether the Cherokee had the same right as a foreign government would have to file a case in the U.S. Supreme Court, or were the Cherokee forced to seek a remedy in the unsympathetic courts of Georgia. Marshall acknowledged that the Cherokee had some of the characteristics of a sovereign state, but they were not, strictly speaking, a “foreign nation” like any other. Their land formed part of the United States, and the relations between the federal government and the tribes were “marked by peculiar and cardinal distinctions which exist no where else.”19 Accordingly, the Court denied the request for an injunction against Georgia.20 That appeared to leave the state free to impose its will on the Cherokee and left the Indians with no legal remedy in a federal court.

  But what then were the Indian nations if they were not “foreign sovereigns”? Indians were not considered U.S. citizens, so Marshall invented a new legal status to describe the indigenous tribes: “domestic dependent nations.” In essence, this meant that the tribes were “wards” of the federal government in a perpetual “state of pupilage.” In words dripping with paternalism, Marshall explained that the tribes “look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father.” He pointed out that foreign governments regarded the Indians as “completely under the sovereignty and dominion of the United States” and that any attempt by a foreign state to form a relationship with a tribe would be “an invasion of our territory, and an act of hostility.”21

  Just as he had done in Marbury, Marshall ducked a direct confrontation with the president by denying the Court’s jurisdiction. There was reason to doubt that the opinion represented Marshall’s genuine beliefs. The Court was divided in this case, with only two justices, Thompson and Story, voting in favor of the Cherokee. If Marshall had joined them, they would still be the minority. From a pragmatic perspective, if Marshall had not voted with the majority, the majority’s decision would have been written by Justice Johnson because of his seniority. As it was, Johnson wrote a racially inflammatory concurrence that dismissed the idea that any “people so low in the grade of organized society” could ever be thought of as a “state.”22 Johnson asserted that under the law of nations, Indian tribes were “nothing more than wandering hordes, held together only by ties of blood and habit, and having neither laws or government, beyond what is required in a savage state.”23

  By voting with the majority, Marshal
l blocked Johnson from writing the Court’s opinion. Marshall could be criticized for being unprincipled, but here he was choosing what he saw as the lesser evil. Since Marshall did not usually circulate his draft opinions to the other justices, he did not have to take into consideration Johnson’s views. And he was able to craft an opinion that left the door open to challenge Georgia’s treatment of the Indians in a future case. Marshall hinted that the “mere question of right might perhaps be decided by this court in a proper case with proper parties.”24 He was signaling a willingness to try again to forge a court majority in support of Indian sovereignty.

  Privately, Marshall asked Justices Thompson and Story to respond to Justice Johnson’s racist concurrence by issuing a strong dissent.25 Justice Thompson’s dissent demonstrated that the federal government had consistently accorded to tribal nations the same dignity it accorded independent foreign sovereigns and that the tribes were “not within the jurisdiction nor under the government of the states within which they were located.” Therefore the Indians should be entitled to remain on their territory unimpeded by the states.26 If there was any doubt that Thompson’s views more closely reflected Marshall’s, the chief justice secretly arranged with the Supreme Court’s reporter to republish Thompson’s dissent in a special volume to educate the public about the rights of the tribal nations.

  After the Court’s decision, Marshall claimed that he “had not time to consider the case in its various bearings,” and that if he had thought about it longer he would have been more explicit that states have no authority over tribal nations.27 Marshall would soon have one last opportunity to right this historical wrong.

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  MARSHALL’S ABDOMINAL PAIN worsened over the next several months. Marshall decided it was time to draft a last will and testament. To his beloved Polly and each of his sons, he left the property they were then residing on. Then he added an unconventional provision: “I have for some time thought that the provision intended by a parent for a daughter ought in common prudence to be secured to herself and children so as to protect her under any casualties which may happen, from distress.” Rather than leaving property to his son-in-law as was customary, Marshall provided that his son-in-law would hold the property in trust for his daughter and her children: “The property thus given in trust for my daughter and her family is for her and their separate use, not to be subject to the control of her husband or for his debts.”28 As in so many other ways, Marshall’s view of women was ahead of his time.

  In September 1831, at age seventy-six, Marshall left Richmond by steamboat down the James River for Philadelphia, where he hoped that the famous American surgeon Dr. Philip Syng Physick could relieve the agonizing pain from his bladder stones. The operation was painful and risky, especially given Marshall’s age, but the chief justice preferred death to this torturous suffering.29 Given his infirmity and the bad weather, he had hoped to slip quietly into Philadelphia, but news of his arrival preceded him, and his appearance was greeted by a public spectacle. Marshall was paraded through a series of events in his honor—a reception by the bar association, an address to the Young Men of Philadelphia, an appearance at Masonic Hall, and a speech to the Free Trade Convention. A portrait of him was commissioned, and he had to sit for hours in exquisite pain while the artist, Henry Inman, applied paint to canvas. He had aged greatly in the past few years. His strong jaw and chin were surrounded by puffy pink skin, and his pain was visible in his tight, crooked mouth. His dark eyes were buried behind thick lines and protruding bags, but his hypnotic stare retained its intensity.30

  The following day, Dr. Physick, sixty-three and also in failing health, performed a lithotomy on the chief justice. Without the benefit of anesthesia, Marshall was tied to a table and pinned down by assistants as the elderly doctor slowly and skillfully removed thousands of tiny stones. The operation was a complete success, and after nearly a month spent recovering in the doctor’s care, Marshall sailed back to Richmond at the end of November for the beginning of the circuit court’s new term.31

  Marshall was still weak when he reached home in early December. During the two months he was away, Polly had taken a turn for the worse. She lay “dangerously ill” and confined to her bedroom with an unspecified illness. Though Polly had been ill for most of their married life, this was different. Marshall’s “fears were stronger than [his] hopes.” For weeks he sat by her bedside stroking her tiny hand and laying a cool wrist on her fevered brow. There seemed little left of her. As he had so often in the past, he read books to her as she faded in and out of consciousness. There was nothing that could be done for her except pray.

  On Christmas Eve, Polly sat up and with trembling hands removed the gold locket she had worn around her neck since their engagement. It contained the lock of hair she had given to Marshall as a sign of her devotion, entwined with a lock of his own hair. She asked him now to wear the locket for safekeeping. The following day, Polly’s long suffering finally ended. She was sixty-four, and it was just nine days shy of their forty-ninth wedding anniversary. Marshall buried “Dearest Polly” nearby at Shockoe Hill Cemetery.32

  The cheery light of Christmas was now overshadowed with grief. “Never can I cease to feel the loss and to deplore it,” he wrote. He had relied on her counsel for five decades, and he had never “regretted the adoption of her opinion.” To others, she appeared frail and dour, but in private Polly “possessed a good deal of chaste delicate and playful wit.” She was a talented mime, a good storyteller, and a sophisticated reader. “I have lost the solace of my life!” Marshall exclaimed. He was inconsolable.33

  Marshall had been looking forward to retirement for a long time, imagining quiet days with Polly on the porch of their house in Oak Hill gazing out over his grassy pastures. He had already outlived most of his contemporaries and five of his children. He felt that he should retire before age dulled his judgment. He was too proud to allow himself to “hazard the disgrace of continuing in office, a meer [sic] inefficient pageant.” If he stepped down now, he could take pride in all that the Court had accomplished. And yet he hesitated to quit. Marshall feared that their progress in securing the judiciary’s independence and galvanizing the Union could be undone: “I cannot be insensible to the gloom which lours [sic] over us,” he confided to Story, and he worried that he would be “abandoning” his colleague at a critical moment. Since his surgery, he was feeling more vigorous. Perhaps he would postpone a decision to retire at least for a little while longer.34 After Polly’s death, the emerald dream of retirement no longer beckoned.

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  IN MARCH 1831, a group of white missionaries living in Cherokee territory was arrested in Georgia. An 1830 Georgia statute prohibited any white person from residing on Indian land unless they held a state license and swore an oath of allegiance to Georgia. Georgia’s legislature had no patience for northern troublemakers stirring up the passions of “savages.” One of the missionaries arrested was the redoubtable Samuel Worcester, a Congregationalist minister sent from Vermont to preach the Gospel. Worcester persuaded the others to file a petition in a state court challenging their arrest as an unconstitutional intrusion in Indian territory. After the Cherokee Nation opinion, Worcester hoped to use their arrest as a way of dragging Georgia into court.35

  Worcester’s case was filed with the State Superior Court of Gwinnett County where Judge Augustin Clayton upheld the Georgia law but released Worcester and the others on a technicality. Clayton held that since Worcester served as postmaster for New Echota, the Cherokee capital, he and his fellow ministers were federal agents immune from state prosecution. Worcester returned to minister to the Cherokee.36 That might have ended the matter, except that Georgia Governor George Gilmer wanted to punish these “insolent” northerners. Gilmer asked the president to remove Worcester as local postmaster, and Jackson obliged. In July, the Georgia Guard rearrested Worcester and nine others. A jury took only fi
fteen minutes to convict all ten missionaries, and Judge Clayton imposed the maximum penalty of four years hard labor for the crime of spreading the word of God.37

  At this point Governor Gilmer offered pardons to all the missionaries if they agreed not to return to the Cherokee territory without a license as required by law. Only Worcester and one other missionary, Elizur Butler, refused pardons and were sent to prison. The ubiquitous William Wirt offered to represent them pro bono and appealed their convictions to the Supreme Court. The Georgia legislature responded by authorizing newly elected Governor Wilson Lumpkin to “resist and repel” any order from the Supreme Court.38

  Meanwhile, Wirt was nominated as the presidential candidate of the Anti-Masonic Party. He would challenge President Jackson and the National Republican candidate, Henry Clay, in the 1832 election. Georgia’s persecution of the Cherokee emerged as a central issue in the campaign. Northern newspapers featured stories portraying the missionaries as Christian martyrs; southern Democratic papers urged Jackson to oppose any Supreme Court order that infringed on Georgia’s sovereignty.39

  The Court heard the case on February 20, 1832. The courtroom was packed with members of Congress, reporters, members of the public, and Cherokees. The latter were easily identified by their skin caps and leather breeches as they sat scattered among ladies in silk dresses and feathered hats and men in well-tailored broadcloth suits.40 Still recovering from his surgery four months earlier, Marshall’s voice was so thin that he was barely audible. It was fortunate that Justice Johnson, who authored the biting concurrence in Cherokee Nation, was absent, so Marshall would have a chance to forge a consensus.41