United States, or of the state tribunals. The act of 1789 seems to have considered it competent for Congress to vest concurrent jurisdiction in the above specified cases in other courts; for it gives a concurrent jurisdiction in some of them to the Circuit Courts; and it has been held* that the word original was not here to be taken to imply exclusive cognizance of the cases enumerated. But an opinion of the Supreme Court, in another case, goes far towards establishing the principle of exclusive jurisdiction in that court in all these cases of original jurisdiction; although this last decision was subsequently considered as shaking the first, yet the question was afterward left in doubt by the Supreme Court, and a decision upon it purposely waived.t

Admitting, then, that this original jurisdiction of the Supreme Court can be shared by other courts in the discretion of Congress, it has been decided that it cannot be enlarged; and that the Supreme Court cannot be invested with an original jurisdiction, by act of Congress, in cases other than those described by the Constitution. Congress has no authority to give it original jurisdiction, where the Constitution has declared that the jurisdiction shall be appellate; nor appellate, where Congress has declared that it shall be original. The Constitution gives to the Supreme Court original jurisdiction in those cases in which a state shall be a party, and the Supreme Court has laid down as a rules that it must be a case in which a state is either nominally or substantially the party, and that it is not sufficient that the state may be consequentially affected. And although the judicial power of the Union extends to "controversies between a state and foreign states, citizens, or subjects, and the Constitution gives to the Supreme Court original jurisdiction in all cases in which a state shall be a party, yet it was held, in the celebrated case of the Cherokee Indians,* that they were not a "foreign nation" within the meaning of the Constitution. They were, indeed, considered to be a political community or state, and had uniformly been treated as such since the first settlement of the country. The numerous treaties with them by the United States recognises them as a people capable of maintaining the relations of peace and war; of being responsible in their political character for any violation of their engagements, or any aggressions upon our citizens by any individual of their tribe. Laws have been enacted in the spirit of those treaties, and the courts are held to be bound by those acts of the government, which have thus plainly recognised this nation of Indians as

a state.

The condition of the Indian tribes, in regard to their connexion with the United States, bears little resemblance to the relations between any other two people in the world. In general, nations not owing a common allegiance are foreign to each other. But the relation of the Indians to the government of the United States is marked by peculiar and cardinal distinctions. The Cherokees were acknowledged to have an unquestionable, and, until that controversy arose, an unquestioned right to the lands they occupied, until that right were extinguished by a voluntary cession to the Federal Government. It was, nevertheless, doubted whether they, or any of the tribes residing within the acknowledged boundaries of the United States, could with accuracy be denominated foreign states. They may more correctly be called domestic, dependant nations, occupying a territory over which our government assert a right independent of their will, and which must take effect in point of possession when their right of possession ceases. In the mean time, their relation to the United States resembles that of a ward to his guardian: they look to the Federal Government for protection, rely on its kindness, and appeal to its sympathies for the relief of their wants.

Under these circumstances, the Cherokees sought to restrain the State of Georgia (within whose territorial limits their lands were situate) from the forcible exercise of legislative power over them, claiming their independence as a separate and neighbouring people; their right to which the state denied. The court held its power to interpose for their protection to be, at least, doubtful; but intimated that the mere question of right might perhaps be settled in a proper case with proper parties. But it was asked on that occasion to do more than decide on the title: it was called on to control the Legislature of Georgia, and to restrain the exertion of its physical force; and the propriety of such an interposition might well be questioned, as it savoured too much of the exercise of political power to be within the province of the judicial department; and it refused to interfere. Thus much for the original jurisdiction of the Supreme Court. We now proceed to that which is appellate.

It is the appellate power of the Supreme Court which gives to it most of its dignity and efficacy, and renders it a constant object of solicitude and attention to the government and people of the several states. We have seen that, by the act of Congress, a final judgment or decree of the highest court of law or equity in a state may, in certain cases, under various circumstancės, be reviewed, and reversed or affirmed, in the Supreme Court of the United States. In cases of reversal, the cause may be remanded to the State Court for final judgment, to be rendered according to the opinion of the supreme Federal tribunal, or that court may, at its discretion, if the cause have once before been remanded, proceed itself to a final decision and award execution. Under this authority, it has been declared by the Supreme Court, that if the highest court in a state reverse the judgment of a subordinate court, and on appeal the judgment of the highest court be, in its turn, reversed by the Supreme Court of the United States, it becomes a mere nullity; and the mandate for execution may issue directly from the Supreme Court to the inferior state court.* But in a subsequent case, a writ of error from the Supreme Court of the United States was directed to the Court of Appeals in Virginia, being the highest court in that state, upon a judgment rendered on appeal from an inferior state court against a right claimed under the treaty with Great Britain, and the judgment of the Court of Appeals was reversed by the Supreme Court; the cause was remanded, and the Virginia Court of Appeals was required to cause the original judgment, which had been reversed in that court, to be carried into due execution. The Court of Appeals, when the case came back to them, resolved that the appellate power of the Supreme Court did not extend to the state courts; that the act of Congress was not warranted by the Constitution; and that the proceedings in the Supreme Court were invalid in relation to the Court of Appeals; which, consequently, declined obedience to the mandate of the former.f

* Clarke vs. Sherwood, 3 Dall., 341.
† Fairfax vs. Hunter, 7 Cranch, 603.

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A new writ of error was awarded upon this refusal, and the case came up again before the Supreme Court, as a case in which the court below drew in question, and denied the validity of the act authorizing an appeal from a state court.

In the luminous opinion delivered on that occasion by the venerable and learned Chief-justice Marshall, he observed, that the judicial power of the United States had been declared by the Constitution to extend to all cases arising under treaties made under the authority of the United States, which was an absolute grant of jurisdiction in that case; and that it was competent for the people to invest the General Government with that, or any other powers which they might deem necessary and proper, as well as to prohibit the states from the exercise of any powers which, in their judgment, were incompatible with the objects of the general compact. Congress were bound by the injunctions of the Constitution to create inferior courts, in which to vest all that judicial jurisdiction which was exclusively vested in the United States, and of which the Supreme Court cannot take any other than appellate cognizance. The whole judicial power must at all times be vested, either in an original or appellate form, in some courts created under the authority of the United States. The grant of the judicial power was thus declared to be absolute, and it was held to be imperative upon Congress to provide for the appellate jurisdiction of the Federal Courts in all cases in which the judicial power was granted exclusively to the United States, by the Constitution, and not already given, by way of original jurisdiction, to the Supreme Court. This eminent judge, in his examination of the judicial power, upon which he then entered, took a distinction between the two classes of enumerated cases, and held that