In this opinion the moral force of Marshall was displayed almost as much as in the case of the Schooner Exchange.[1460] He was friendly to the whole Indian race; he particularly detested Georgia's treatment of the Cherokees; he utterly rejected the State Rights theory on which the State had acted; and he could easily have decided in favor of the wronged and harried Indians, as the dissent of Thompson and Story proves. But the statesman and jurist again rose above the man of sentiment, law above emotion, the enduring above the transient.
As a "foreign state" the Indians had lost, but the constitutionality of Georgia's Cherokee statutes had not been affirmed. Wirt and Sergeant had erred as to the method of attacking that legislation. Another proceeding by Georgia, however, soon brought the validity of her expansion laws before the Supreme Court. Among the missionaries who for years had labored in the Cherokee Nation was one Samuel A. Worcester, a citizen of Vermont. This brave minister, licensed by the National Government, employed by the American Board of Commissioners for Foreign Missions, appointed by President John Quincy Adams to be postmaster at New Echota, a Cherokee town, refused, in company with several other missionaries, to leave the Indian country.
Worcester and a Reverend Mr. Thompson were arrested by the Georgia guard. The Superior Court of Gwinnett County released them, however, on a writ of habeas corpus, because, both being licensed missionaries expending National funds appropriated for civilizing Indians, they must be considered as agents of the National Government. Moreover, Worcester was postmaster at New Echota. Georgia demanded his removal and inquired of Jackson whether the missionaries were Government agents. The President assured the State that they were not, and removed Worcester from office.[1461]
Thereupon both Worcester and Thompson were promptly ordered to leave the State. But they and some other missionaries remained, and were arrested; dragged to prison—some of them with chains around their necks;[1462] tried and convicted. Nine were pardoned upon their promise to depart forthwith from Georgia. But Worcester and one Elizur Butler sternly rejected the offer of clemency on such a condition and were put to hard labor in the penitentiary.
From the judgment of the Georgia court, Worcester and Butler appealed to the Supreme Court of the United States. Once more Marshall and Georgia confronted each other; again the Chief Justice faced a hostile President far more direct and forcible than Jefferson, but totally lacking in the subtlety and skill of that incomparable politician. Thrilling and highly colored accounts of the treatment of the missionaries had been published in every Northern newspaper; religious journals made conspicuous display of soul-stirring narratives of the whole subject; feeling in the North ran high; resentment in the South rose to an equal degree.
This time Georgia did more than ignore the Supreme Court as in the case of George Tassels and in the suit of the Cherokee Nation; she formally refused to appear; formally denied the right of that tribunal to pass upon the decisions of her courts.[1463] Never would Georgia so "compromit her dignity as a sovereign State," never so "yield her rights as a member of the Confederacy." The new Governor, Wilson Lumpkin, avowed that he would defend those rights by every means in his power.[1464] When the case of Worcester vs. Georgia came on for hearing before the Supreme Court, no one answered for the State. Wirt, Sergeant, and Elisha W. Chester appeared for the missionaries as they had for the Indians.[1465] Wirt and Sergeant made extended and powerful arguments.[1466]
Marshall's opinion, delivered March 3, 1832, is one of the noblest he ever wrote. "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," begins the aged Chief Justice.[1467] Does the act of the Legislature of Georgia, under which Worcester was convicted, violate the Constitution, laws, and treaties of the United States?[1468] That act is "an assertion of jurisdiction over the Cherokee Nation."[1469]
He then goes into a long historical review of the relative titles of the natives and of the white discoverers of America; of the effect upon these titles of the numerous treaties with the Indians; of the acts of Congress relating to the red men and their lands; and of previous laws of Georgia on these subjects.[1470] This part of his opinion is the most extended and exhaustive historical analysis Marshall ever made in any judicial utterance, except that on the law of treason during the trial of Aaron Burr.[1471]
Then comes his condensed, unanswerable, brilliant conclusion: "A weaker power does not surrender its independence, its rights 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 self-government, and ceasing to be a state.... The Cherokee Nation ... is a distinct community, occupying its own territory ... 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 Cherokee Acts of the Georgia Legislature "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." This controlling fact the laws of Georgia ignore. They violently disrupt the relations between the Indians and the United States; they are equally antagonistic to acts of Congress based upon these treaties. Moreover, "the forcible seizure and abduction" of Worcester, "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 authorize the chief magistrate to exercise this authority."