who shall thereafter intrude on the lands reserved for the Cherokees, shall be removed by the United States, and proceeded against according to the provisions of the Act of 1802, entitled "An Act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers." (3 Laws U. S., 460.) By this act the boundary lines established by treaty with the various Indian tribes are required to be ascertained and marked; and among others, that with the Cherokee Nation, according to the Treaty of the 2d of October, 1798. makes the act inconsistent with itself, and E But this section admits of a plan and them, It may be necessary here briefly to notice some of the provisions of this Act of 1802 (so far as it goes to protect the rights of property in the Indians), for the purpose of seeing whether there has been any violation of those rights by the State of Georgia which falls properly under judicial cognizance. By this act it is made an offense punishable by fine and imprisonment, for any citizen or other person resident in the United States, or either of the territorial districts, to cross over or go within the boundary line, to hunt or destroy the game, or drive stock to range or feed on the Indian lands, or to go into any country allotted to the Indians, without a passport; or to commit therein any robbery, larceny, trespass, or other crime, against the person or property of any 73*] friendly *Indian, which would be punish-cated. able, if committed within the jurisdiction of any State against a citizen of the United States; thereby necessarily implying that the Indian territory secured by treaty was not within the jurisdiction of any State. The act further provides that when property is taken or destroyed, the offender shall forfeit and pay twice the value of the property so taken or destroyed. And by the fifth section it is declared that if any citizen of the United States, or other person, shall make a settlement on any lands belonging or secured, or guarantied, by treaty with the United States to any Indian tribe; or shall survey or attempt to survey such lands, or designate any of the boundaries by marking trees or otherwise, such offender shall forfeit a sum not exceeding one thousand dollars, and suffer imprisonment not exceeding twelve months. This act contains various other provisions for the purpose of protecting the Indians in the free and uninterrupted enjoyment of their lands: and authority is given (sec. 16) to employ the military force of the United States to apprehend all persons who shall be found in the Indian country in violation of any of the provisions of the act, and deliver them up to the civil authority, to be proceeded against in due course of law. But such was not the conditike ant That the Cu It may not be improper here to notice some diversity of opinion that has been entertained with respect to the construction of the nineteenth section of this act, which declares that such on trann nothing therein contained shall be construed to i ment, as was prevent any trade or intercourse with the In-law of Gerza e va dians living on lands surrounded by settlements tion of aut n exte of citizens of the United States, and being with the Af in the ordinary jurisdiction of any of the indi- B a mapen vidual States. It is understood that the State. «, of Georgia contends that the Cherokee Nation rates I T come within this section, and are subject to the to *** jurisdiction of that State. Such a construction tem 4 ม. case. this court, according to my own view of the | The right of occupancy is secured to the Cherokees by treaty, and the State has not even a reversionary interest in the soil. It is true, that by the compact with Georgia of 1802, the United States have stipulated to extinguish for the use of the State the Indian title to the lands within her remaining limits, as soon as it can be done peaceably and upon reasonable terms." But until this is done, the State can have no claim to the lands. I certainly, as before observed, do not claim, as belonging to the judiciary, the exercise of political power. That belongs to another branch of the government. The protection and enforcement of many rights secured by treaties, most certainly do not belong to the judiciary. It is only where the rights of persons or property are involved, and when such rights can be presented under some judicial form of proceedings, that courts of justice can interpose relief. This court can have no right to pronounce an abstract opinion upon the constitutionality of a State law. Such law must be brought in to actual or threatened operation upon rights properly falling under judicial cognizance, or a remedy is not to be had here. The laws of Georgia set out in the bill, if carried fully into operation, go the length of abrogating all the laws of the Cherokees, abolishing their government, and entirely subvert ing their national character. Although the whole of these laws may be in violation of the treaties made with this nation, it is probable this court cannot grant relief to the full extent of the complaint. Some of them, however, are so directly at variance with these treaties and the laws of the United States touching the rights of property secured to them, that I can perceive no objection to the application of judicial relief. The State of Georgia certainly could not have intended these laws as declarations of hostility, or wish their execution of them to be viewed in any manner whatever as acts of war; but merely as an assertion of what is claimed as a legal right; and in this light ought they to be considered by this court. The Act of the 2d of December, 1830, is entitled An Act to authorize the governor to take possession of the gold and silver and other mines lying and being in that section of the chartered limits of Georgia commonly called 76*] the Cherokee country, *and those upon all other unappropriated lands of the State, and for punishing persons who may be found, trespassing on the mines." The preamble to this act asserts the title to these mines to belong to the State of Georgia; and by its provisions twenty thousand dollars are appropriated and placed at the disposal of the governor to enable him to take possession of those mines; and it is made a crime, punishable by imprisonment in the penitentiary of Georgia at hard labor, for the Cherokee Indians to work these mines. And the bill alleges that under the laws of the State in relation to the mines, the governor has stationed at the mines an armed force who are employed in restraining the complainants in their rights and liberties in regard to their own mines, and in enforcing the laws of Georgia upon them. These can be considered in no other light than as acts of trespass, and may be treated as acts of the State, and not of the individuals employed as the agents. Whoever authorizes or commands an act to be done may be considered a principal, and held responsible, if he can be made a party to a suit, as the State of Georgia may undoubtedly be. It is not perceived on what ground the State can claim a right to the possession and use of these mines. | The very compact is a recognition by the State of a subsisting Indian right, and which may never be extinguished. The United States have not stipulated to extinguish it until it can be done "peaceably and upon reasonable terms;” and whatever complaints the State of Georgia may have against the United States for the nonfulfillment of this compact, it cannot affect the right of the Cherokees. They have not stipulated to part with that right; and until they do, their right to the mines stands upon the same footing as the use and enjoyment of any other part of the territory. Again, by the Act of 21st December. 1830, surveyors are authorized to be appointed [*77 to enter upon the Cherokee territory and lay it off into districts and sections, which are to be distributed by lottery among the people of Georgia; reserving to the Indians only the present occupancy of such improvements as the individuals of their nation may now be residing on, with the lots on which such improvements may stand, and even excepting from such reservation improvements recently made near the gold mines. This is not only repugnant to the treaties with the Cherokees, but directly in violation of the Act of Congress of 1802; the fifth section of which makes it an offense punishable with fine and imprisonment, to survey or attempt to survey or designate any of the boundaries, by marking trees or otherwise, of any land belonging to or secured by treaty to any Indian tribe: in the face of which, the law of Georgia authorizes the entry upon, taking possession of, and surveying and distributing by lottery, these lands guaranteed by treaty to the Cherokee Nation; and even gives authority to the governor to call out the military force to protect the surveyors in the discharge of the duty assigned them. These instances are sufficient to show a direct and palpable infringement of the rights of property secured to the complainants by treaty, and in violation of the Act of Congress of 1802. These treaties and this law, are declared by the Constitution to be the supreme law of the land: it follows, as matter of course, that the laws of Georgia, so far as they are repugnant to them, must be void and inoperative. And it remains only very briefly to inquire whether the execution of them can be restrained by injunction according to the doctrine and practice of courts of equity. According to the view which I have already taken of the case, I must consider the question of right as settled in favor of the complainants. This right rests upon the laws of the United States, and treaties made with the Cherokee Nation. The construction of these laws and treaties are pure questions of law, and for the decision of the court. There are no grounds, therefore, upon which it can be necessary to be a strong case for an injunction; that the send the cause for a trial at law of the right, application was not to interpose the writ of inbefore awarding an injunction; and the simple junction, to protect the bank from a common question is, whether such a case is made out by and casual trespass of an individual, but from the bill as to authorize the granting an injunc- a total destruction of its franchise, of its chartion. tered privileges, so far as respected the State of 78*1 *This is a prohibitory writ to restrain Ohio. In that case, the State could not be a party from doing a wrong or injury to the made a party according to the eleventh amendrights of another. It is a beneficial process for ment of the Constitution; the complainants the protection of rights, and is favorably viewed being mere individuals and not a sovereign by courts of chancery, as its object is to pre- State. But, according to my view of the vent rather than redress injuries; and has lat-present case, the State of Georgia is properly terly been more liberally awarded than formerly. (7 Ves., Jun., 307.) The bill contains charges of numerous trespasses by entering upon the lands of the complainants and doing acts greatly to their injury and prejudice, and to the disturbance of the quiet enjoyment of their land, and threatening a total destruction of all their rights. And although it is not according to the course of chancery to grant injunctions to prevent trespasses when there is a clear and adequate remedy at law, yet it will be done when the case is special and peculiar, and when no adequate remedy can be had at law, and particularly when the injury threatens irreparable ruin. (6 Ves., 147; 7 Eden, 307.) Every man is entitled to be protected in the possession and enjoyment of his property; and the ordinary remedy by action of trespass may generally be sufficient to afford such protection. But, where from the peculiar nature and circumstances of the case, this is not an adequate protection, it is a fit case to interpose the preventive process of injunction. This is the principle running through all the cases on this subject, and is founded upon the most wise and just considerations; and this is peculiarly such a case. The complaint is not of a mere private tres pass, admitting of compensation in damages; but of injuries which go to the total destruction of the whole rights of the complainants. The mischief threatened is great and irreparable. (7 Johns. Ch., 330.) It is one of the most beneficial powers of a court of equity to interpose and prevent an injury before any has actually been suffered; and this is done by a bill which is sometimes called a bill quia timet. (Mitford, 120.) made a party defendant; the complainants being a foreign state. The laws of the State of Georgia in this case go as fully to the total destruction of the complainants' rights as did the law of Ohio to the destruction of the rights of the bank in that State; and an injunction is as fit and proper in this case to prevent the injury as it was in that, It forms no objection to the issuing of the injunction in this case that the lands in question do not lie within the jurisdiction of this court. The writ does not operate in rem, but in personam. If the party is within the jurisdiction of the court, it is all that is necessary to give full effect and operation to the injunction; and it is immaterial where the subject matter of the suit, which is only affected consequentially, is situated. This principle is fully recognized by this court in the case of Massie v. Watts (6 Cranch, 157), when this general rule is laid down that in a case of fraud of trust or of contract, the jurisdiction of a court of chancery is sustainable wherever the person may be found, although lands not within the jurisdiction of the court may be affected by the decree. And reference is made to several cases in the English chancery recognizing the same principle. In the case of Penn v. Lord Baltimore (1 Ves., 444), a specific performance of a contract *respecting lands lying in North [*80 America was decreed; the chancellor saying the strict primary decree of a court of equity is in personam, and may be enforced in all cases when the person is within its jurisdiction. Upon the whole, I am of opinion: State within the sense and meaning of the 1. That the Cherokees compose a foreign to maintain a suit against the State of Georgia. Constitution, and constitute a competent party 2. That the bill presents a case for judicial consideration, arising under the laws of the United States, and treaties made under their authority with the Cherokee Nation, and which laws and treaties have been and are threatened to be still further violated by the laws of the State of Georgia referred to in this opinion. The doctrine of this court in the case of Osborne v. The United States Bank (9 Wheat., 738), fully sustains the present application for an injunction. The bill in that case was filed to obtain an injunction against the auditor of the State of Ohio to restrain him from executing a law of that State, which was alleged to be to the great injury of the bank, and to the destruction of rights conferred by their charter. 79*] The only question of doubt entertained by the court in that case was as to issuing an 3. That an injunction is a fit and proper writ injunction against an officer of the State to re-to be issued to prevent the further execution of strain him from doing an official act enjoined such laws, and ought therefore to be awarded. by statute, the State not being made a party. But even this was not deemed sufficient to deny the injunction. The court considered that the Ohio law was made for the avowed purpose of expelling the bank from the State and depriving it of its chartered privileges; and they say if The State could have been made a party defendAnt, it would scarcely be denied that it would And I am authorized by my brother Story to say that he concurs with me in this opinion. Cited - 6 Pet., 596;9 Pet., 746; 12 Pet., 753; 5 How, 374, 377: 7 How.. 56, 57; 14 How., 112; 3 Wall.. 4205 Wall.. 750; 6 Wall., 72-75; 11 Wall.. 619; 17 Wall., 237, 242; 19 Wall.. 593; 2 Otto, 742; 3 Otto, 193; 1 Dill., 265, 346; 5 Dill., 398. 81**THE LESSEE OF ROBERT G. SCOTT, AND SUSANNAH HIS WIFE, AND JAMES C. MADISON, Plaintiff's in Error, v. SILAS RATLIFFE, THOMAS OWINGS, Evidence exception in land patent—“ seven years' Limitation Act" of Kentucky. A witness swore that she resided in Petersburg, Virginia, and that Bishop Madison resided in Will iamsburg, Virginia; that while she resided in Petersburg, she had seen Bishop Madison, and was acquainted with his daughter only by report; that she never had seen her or Mr. Scott, but recollects to have heard of their marriage, in Petersburg, as she thought, before the death of her father; that she could not state from whom she heard the report, but that she had three cousins who went to college at the time that she lived in Petersburg, and had no doubt that she had heard them speak of the marriage; that she heard of the marriage of Miss Madison before her own marriage, as she thought, which was in 1810; that she was, as she believed, in 1811, in Williamsburg, and was told that Mr. Madison was dead. Held, that so much of this evidence as goes to prove the death of Mr. Madison was admissible on the trial, and ought not to have been excluded by the court. A patent was issued by the Governor of Kentucky for a tract of land containing eighteen hundred and fifty acres by survey, &c., describing the boundaries. The patent describes the exterior lines of the whole tract, after which the following tucky. The On the 2d of April, 1825, the plaintiffs commenced an action of ejectment against the defendant, asserting a title and right of entry in and to eighteen hundred and fifty acres of land patented to their ancestor, James Madison, by the Commonwealth of Kentucky. grant was dated August 8th, 1798, and was in consideration of sundry land-office treasury warrants issued by the State of Virginia, and a survey bearing date 26th December, 1796, founded on an entry made prior to the first of June, 1792. At May Term, 1828, a verdict and judgment were rendered for the defendants. On the trial the plaintiff gave in evidence the patent to James Madison, and evidence conducing to prove the boundaries thereof, and that the defendants resided in said bounds at the commencement of the suit. The patent recites that in virtue of three land-office treasury warrants, &c., "there is granted unto the Reverend James Madison a certain tract or parcel of land containing eighteen hundred and fifty acres by survey, &c. ;" and describes the boundaries thereof, "including within said lands five hundred and twentytwo acres of land entered for John Preston, four hundred and twenty-five acres for William Garrard; both claims have been excluded in the calculation of the plot with its appurtenances," &c., &c. Madison, had been to school to him, and he was well acquainted with his daughter Susan Madison, and with James C. Madison, his son, the lessors; they were the only children of Mr. Madison living at his death; that he could not say when Bishop Madison died, but he thought about twenty years prior to 1828; that in [*83 1818 he was at the house of Mr. Scott, in Virginia, saw Mrs. Scott, and they were then living as man and wife. words are used, including within the said bounds had known Bishop James Madison and his They also proved by James Harvee that he five hundred and twenty-two acres entered for John Preston, four hundred and twenty-five acres daughter Susan, the wife of one of the plaintfor William Garrard: both claims have been ex- iffs in error. He stated that he had understood cluded in the calculation of the plot with its ap- Susan had married Mr. Scott, but he had never purtenance, &c." Patents of this description are not unfrequent in Kentucky. They have always seen him; that Bishop Madison was dead, and been held valid so far as respected the land not ex- he supposed died in 1812. N. B. Beal, another cluded, but to pass no legal title to the land ex-witness, testified that he had known Bishop cluded from the grant. The words manifest an intent to except the lands of Preston and Garrard from the patent. The government did not mean to convey to the patentee lands belonging to others, by a grant which recognizes the title of these others. If this court entertained any doubt on this subject, those doubts would be removed by the construction which it is understood has been put on this patent by the court of the State of KenThe defendants claimed under a patent issued by the Governor of Kentucky on the 3d of January, 1814, to John Grayham, and two deeds from him, one to Silas Ratliffe, one of the defendants, dated in August, 1814, for one hundred acres, the other to Thomas Owings, another defendant, for four hundred acres, dated 25th March, 1816 and gave evidence conducing to prove that they and those under whom they claimed had a continued possession by actual settlement more than seven years next before the bringing of this suit. The court instructed the jury that if they believed from the evidence that the defendants' possession had been for more then seven years before the bringing of the suit, that the act commonly called The Seven Years' Limitation Act, of Kentucky,passed in 1809, was a bar to the plaintiffs' recovery; unless they found that the daughter of the patentee,holding under a patent from the State of Virginia, was a feme covert when her father, the patentee, died; or was so at the time the defendants acquired their titles by contract or deed from John Grayham, the 82*] *patentee under the Governor of Kentucky, The words, " at the time the defendants acquired their title by contract or deed from the patentee, JohnGrayham," can apply to those defendants only who did so acquire their title. The court cannot say this instruction was erroneous. Mrs. Eppes swore that she resided in Petersburg, Virginia, and that Bishop Madison resided in Williamsburg, Virginia; that while she resided in Petersburg she had seen Bishop Madison, and was acquainted with his daughter only by report; that she had never seen her or Mr. Scott, but recollects to have heard of her marriage with Mr. Scott before the death of her father; that she had heard of Miss Madison's marriage before her own marriage, which was in 1810; that she could not tell from whom she heard the report, but she had three cousins who went to college in Williamsburg at the time that she lived in Petersburg, and had no doubt that she had heard them speak of the marriage; that she was, as she believed, in 1811, in Williamsburg, and was told that Mr. Madison was dead. The defendants gave in evidence the patent ERROR to the Circuit Court of the United to John Grayham, assignee of John Preston, States for the District of Kentucky. NOTE.-Evidence. As to proof of death, pedigree, and facts, of family history, see note to Elliott v. Pearsol, 1 Pet., 328. issued by the Governor of Kentucky, on the 13th day of January, 1814, for fourteen hundred and forty-five acres of land: a deed from John Grayham to Silas Ratliffe, for one hundred acres by metes and bounds, dated 12th Au 1831 gust, 1814; a deed from John Grayham to Thomas Owings, for four hundred acres, dated 25th of March, 1816. On the trial the counsel for the plaintiffs took three bills of exceptions to the opinion of the court; the particulars of which are stated more at large in the opinion of this court. The first exception was to the instruction of the court to the jury, that if the plaintiffs did not show to their satisfaction that the defendants resided within the plaintiffs' grant and outside of the land claimed of Preston and Garrard, they ought to find for the defendants. This bill of exception also set forth an objection by the plaintiffs' counsel to the ruling of the court as to the mode by which the location and survey should have been made. *Mr. Chief Justice MARSHALL deliv- [*85 ered the opinion of the court. This is a writ of error to a judgment ren- The plaintiffs claimed title as heirs of the The plaintiffs gave in evidence the patent to The second bill of exceptions stated that the It grants to the Reverend plaintiff's moved the court to instruct the jury their ancestor. that the seven years' possession of the defend- James Madison a certain tract or parcel of land It bounded as follows." ants was no bar to the plaintiffs' recovery, containing eighteen hundred and fifty acres, by which the court overruled, and they instructed survey, &c., and 84*]the jury that *if they believe, from the evi- then describes the exterior lines of the whole dence, that the defendants had been more than tract, after which the following words are used: seven years in possession next before the bring-"including within said bounds five hundred ing the action, that the seven years' possession law of Kentucky, of 1809, was a bar to the plaintiffs' recovery unless the jury should find that Susan Madison was a feme covert when her father died, and when the defendants acquired title under the patent of John Grayham. The third bill of exceptions stated that the court, on the motion of the counsel of the defendants, overruled the evidence of Mrs. Eppes. The plaintiffs prosecuted this writ of error. The case was argued by Mr. Wickliffe for No counsel appeared the plaintiffs in error. for the defendants. Mr. Wickliffe contended that the evidence of Mrs. Eppes was improperly excluded in the Circuit Court. It was important to Mrs. Scott and to her co-heir to establish the facts in the knowledge of Mrs. Eppes; and such testimony to prove marriage, the death of the ancestor, and heirship, is within the rules of law and decided cases. (3 Bibb, 238; 2 Marshall, 572; Elliott v. Peirsoll, 1 Peters.) As to the protection claimed under the seven years' law, the counsel for the plaintiffs contended that it protects only those who are in under a supposed title from the Commonwealth of Kentucky. This was not the fact as to all the defendants: but the instructions of the court were given as to the possession of them all. The party claiming under that act must connect himself with a legal or an equitable title. Ratliffe and Owings were the only perEven with sons who claimed in that manner. such a title, it must be shown to have been adverse to the plaintiffs' title. The instructions of the court upon the terms The grant of the patent were also erroneous. is to the whole extent of the boundaries of the land, and gives the legal title; but the equitable title of those who might be within those boundaries was not affected thereby. (1 Monroe, 133.) The court say the plaintiffs cannot recover unless they prove that the defendants live outside of the undefined bounds of Preston's grant. These lands had not been run out; and it was impossible to prove the facts insisted upon, as the lines had not been ascertained. and twenty-two acres of land entered for John Preston, four hundred and twenty-five acres for William Garrard: both claims have been excluded in the calculation of the plot with its appurtenances, &c." They then gave evidence conducing to prove the death of the grantee before the institution of the suit; that the plaintiffs, Susannah and James C., were his heirs-at-law, and that the plaintiff Susannah had intermarried with the They then introplaintiff Robert G. Scott. duced Mrs. Eppes as a witness, who swore that she resided in Petersburg, Virginia, and that Bishop Madison resided in Williamsburg, Virginia; that while she resided in Petersburg she had seen Bishop Madison, and was acquainted with his daughter only by report; that she had never seen her or Mr. Scott, but recollects to have heard of her marriage in Petersburg, as she thought before the death of her father; that she could not state from whom she heard the report, but she had three cousins who went to college at the time that she lived in Petersburg, and had no doubt that she heard them speak of the marriage; that she heard of the marriage of Miss Madison before her own marriage, as she thought, which was in 1810; that she was, as she believed, in 1811, in [*86 Williamsburg, and was told that Mr. Madison was dead. On the motion of the defendants, the court excluded this testimony as incompetent; and the counsel for the plaintiffs excepted to this opinion. In considering this exception some diversity of opinion has prevailed in this court with respect to that part of it which related to the time of the intermarriage between the plaintiffs, Robert Some of the G. Scott and Susan his wife. judges think that the evidence given by Mrs. Eppes respecting the time, as well as that respecting the fact of intermarriage, comes within the general rule excluding hearsay testimony, which was laid down by this court in the case of Mima Queen and child v. Hepburn (7 Cranch, 290). That rule is, "that hearsay evidence is incompetent to establish any specific fact, which fact is in its nature susceptible of 55 |