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state courts retain a concurrent jurisdiction in all cases of which, previous to the Federal Constitution, they possessed the jurisdiction. The state courts, moreover, may, in the exercise of their ordinary original jurisdiction, take cognizance, incidentally, of cases arising under the Constitution, laws, and treaties of the United States; yet to all these cases the judicial power of the Union extends by means of its appellate jurisdiction. In order to ascertain to what extent, and in what manner, the Federal jurisdiction, both original and appellate, has been disposed of, either by the Constitution itself, or by act of Congress, we must review, as we proposed, the various courts established by the one or ordained by the other.

I. The Supreme Court of the United States, although created by the Constitution, received its organization from the Judiciary Act of 1789, and the several supplementary laws which have at different times subsequently been passed in addition thereto. The Constitution had merely declared that there should be a Supreme Court, with certain original and appellate powers; it is merely to be implied from that instrument that the chief-justice should preside in it, with one or more judges to be associated with him; but by the existing acts of Congress, it consists of the chief-justice and eight associate judges, any five of whom constitute a quorum. It holds one term annually at the seat of the General Government, commencing on the first Monday in January; and although the presence of five judges is required for the general business of the court, yet any one or more of them may make all necessary orders in a suit, preparatory to the hearing or tri

al; and it is made the special duty of the chief justice to attend at Washington on the first Mon day in August annually for the same purpose.

The Supreme Court has, by the Constitution, exclusive original jurisdiction of all controversies of a civil nature, where a state can be made a party, except in suits by a state against one or more of its citizens, or against citizens of other states, or against aliens; in which cases it has original, but not exclusive jurisdiction. It has also, exclusively, such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, as a court of law can ex ercise consistently with the law of nations, and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul or vice-consul may be a party.

The Constitution also confers on it an appellate jurisdiction, under such exceptions or regulations as Congress may prescribe; and by the first judiciary act it is declared that appeals shall lie to this court from the Circuit Courts of the United States, and, in certain cases, from the highest courts of the several states. Final judgments and decrees in civil actions, and suits in equity in the Circuit Courts, where brought there by original process, or removed thither from the state courts, or by appeal from the District Courts of the United States, where the matter in dispute exceeds a specified sum, may be re-examined, and reversed or affirmed, in the Supreme Court; and final judgments and decrees of the Circuit Courts, in cases of admiralty or maritime jurisdiction, and in questions of prize or no prize, where the matter in dispute exceeds the same amount, may be reviewed on appeal in the Supreme Court; and in

these cases, new evidence is admitted on the appeals conformably with the general doctrines and usages of appellate courts of admiralty. So, also, a final judgment or decree of the highest court of law or equity in a state may be brought up on the allegation of error in point of law to the Supreme Court of the United States; if the validity of a treaty, of an act of Congress, or of an authority exercised under the Government of the United States, was drawn in question in the state court, and the decision was against that validity; or if the validity of any state law or authority was drawn in question, on the ground of its being repugnant to the Constitution, treaties, and laws of the United States, and the decision was in favour of its validity; or if the construction of any clause of the Constitution, or of a treaty, or of a statute of the United States, or of a commission held under them, was drawn in question, and the decision was against the title, right, privilege, or exemption specially claimed under the authority of the Union. Upon these appeals from the decision of a state court, however, no other error can be assigned or regarded in the Supreme Court, than such as appears on the face of the record, and immediately respects the question of the validity or construction of the Constitution, treaties, statutes, commissions, or authority in dispute.

The original jurisdiction of the Supreme Court, or that cognizance which it takes of causes in their initiatory proceedings, is, as you may have perceived, of a very limited character. It is confined by the Constitution to those cases which affect ambassadors, and other public ministers and consuls, and those in which a state is a party; and it has been made a question whether the original jurisdiction was intended to be exclusive of the inferior courts of the L

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 décided 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

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* United States vs. Ravaree, 2 Dall., 297.

† Marbury vs. Madison, 1 Cranch, 137. 5 Sarjent and Rawle, 11 Wheaton, 467. 1 Cranch, 137. § 3 Dall.. 411.

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 com. mon 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

* 5 Peters, 1.

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