354 BURR— THE TREATY-MAKING POWER [April 20, 



viction was sustained in the State court. The Supreme Court of the 

 United States reversed and ordered his discharge. Said Mr. Chief 

 Justice Marshall : 



" 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. . . . 



"Will these powerful considerations avail the plaintiff in error? We 

 think they will. He was seized, and forceably carried away, while under 

 guardianship of treaties guaranteeing 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.""' 



Mr. Justice McLean concurred and said : 



" 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. . . . Under the administration of the laws of 

 Georgia, a citizen of the 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.""'" 



No recognition was given to the mandate of the Supreme Court upon 

 its return to the State Court. That court refused to grant the writ 

 of habeas corpus and Worcester continued in imprisonment. Not 

 the slightest action was taken to enforce the mandate, or to punish 

 its violation by either President Jackson or by Congress.--' The 

 explanation of this most dangerous precedent in the history of the 

 United States is of course that it constitutes one of the series of 

 constitutional violations springing from extreme States' rights doc- 



"'Ibid., pp. 559. 562. 

 "-=» Ibid., p. 595. 



^-''" Constitutional History of the United States," 1750-1833, von Hoist, 

 pp. 452-5. 



