John Marshall Essay

John Marshall Essay-86
The "case stated" described a history of transactions affecting the land in question from May 23, 1609, to the date of the action.

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were revested in the crown of England; whereupon the colony became a royal government ...

and so continued until it became a free and independent State...." The only encroachment noted on the geographical limits and extent of the colony was that they "were altered and curtailed by the treaty of February 10th, 1763, between Great Britain and France, and by the letters patent granted by the King of England, for establishing the colonies of Carolina, Maryland, and Pennsylvania." Next, the litigants provided a capsule history of the French and Indian War, from "some time previous to the year 1756," when "the French government, laying a claim to the country west of the Allegheny or Appalachian mountains ...

Marshall's opinion would adopt this device of a transient "American Indian sovereignty," an indigenous sovereignty capable of effacing itself or of being effaced.

His opinion in would ensconce this as a key feature of federal law.

From the point of view of the parties to the case, the starting point was the English crown: ...

[O]n the 23d of May, 1609, James I., King of England, by his letters patent of that date, under the great seal of England, did erect, form, and establish Robert, Earl of Salisbury, and others, his associates, in the letters patent named, and their successors, into a body corporate and politic, by the name and style of "The Treasurer and Company of Adventurers and Planters of the City of London, for the first Colony in Virginia," with perpetual succession, and power to make, have, and use a common seal; and did give, grant, and confirm unto this company, and their successors, under certain reservations and limitations in the letters patent expressed, "All the lands, countries, and territories, situate, lying, and being in that part of North America called Virginia,...; with all the soil, grounds, rights, privileges, and appurtenances to these territories belonging, and in the letters patent particularly enumerated;" and did grant to this corporation, and their successors, various powers of government, in the letters patent particularly expressed. The case begins in a legal framework derived from monarchy.Some commentators prefer to focus on the later Cherokee cases, particularly to argue that Marshall's views changed between 18.Whether a compelling case can be made for that proposition is another matter.What is in question here is whether Marshall's opinions in the Indian cases were an expression of "concern for the Indians" or something quite different.The critical perspective developed here will focus on a close textual analysis of the first of the three cases, , which produced a legal theory and a jurisprudential basis for all that followed.These cases came to the Court in the later years of Marshall's tenure as Chief Justice (1801 -1835), after he had an already well-established reputation as an "ardent nationalist" and "a kind of mythical being." Whether or not the "myth" already included the image of Marshall as a friend to the indigenous peoples of the continent, it is clear that these three opinions were in later years to have that effect.From the perspective developed in this essay, the "myth" of Marshall as a champion of indigenous peoples is problematic.Indians were only the ostensible issue of the case.The real issue was: who would get to inherit the legacy of the crown?took possession of certain parts of it, with the consent of the several tribes or nations of Indians possessing and owning them; and, with the like consent, established several military posts and settlements therein...." The parties stated that "the Indian tribes inhabiting and holding the countries northwest of the Ohio, and on the Mississippi above the mouth of the Ohio, were the allies of France, and the Indians known by the name of the Six Nations, or the Iroquois, and their tributaries and allies, were the allies of Great Britain...." A "definitive treaty of peace between Great Britain and France, and their allies" stipulated that the river Mississippi "should for ever after form the boundary between the dominions of Great Britain and those of France, in that part of North America, and between their respective allies there." This was the Treaty of Paris of 1763, by which the two crowns determined Indian territories co-extensively with colonial boundaries.Indian ownership was again postulated only for the purpose of explaining the operation of crown sovereignty.


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