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

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

the Constitution intended that the judicial power, either in an original or appellate form, should extend absolutely to all cases in law or equity arising under the Constitution and laws of the United States, and the treaties made under its authority, to all cases affecting ambassadors, other public ministers, and consuls, and to all cases of admiralty and maritime jurisdiction, because those cases were of vital impor tance to the sovereignty of the Union, entered into the public policy, and affected the national rights, and the law and comity of nations. The original of appellate jurisdiction ought, therefore, in these cases, to be commensurate with the mischiefs and the policy in view. But in respect to another class of cases, it was held that the Constitution had designedly dropped the word all, so as not absolutely to extend the jurisdiction of the Federal judiciary to all controversies, but merely to controversies in which the United States were a party, or between two or more states, or between citizens of different states, &c., leaving it to Congress to qualify the jurisdiction, original or appellate, in such manner as public policy might dictate.

But whatever weight is due to this distinction, it is manifest that the judicial power was unavoidably, in some instances, exclusive of all state authority, and in all others may be made so at the discretion of Congress. The act of 1789 assumed, that in all the cases to which the judicial power of the United States extended, Congress might rightfully vest exclusive jurisdiction in their own courts. The criminal and the admiralty jurisdiction must be exclusive; and it is only in those cases where, previously to the Constitution, the state tribunals possessed jurisdiction independently of national authority, that they can now constitutionally exercise a concurrent jurisdiction

The appellate jurisdiction was not considered as limited by the Constitution to the Supreme Court; but Congress may create a succession of inferior tribunals, in each of which it may vest appellate as well as original jurisdiction. The appellate jurisdiction of the Supreme Court, in cases wherein it has not original jurisdiction, is declared by the Constitution to be subject to such exceptions and regulations as Congress may prescribe. It remained, therefore, entirely in the discretion of Congress to provide for the exercise of judicial power in all the various forms of appeal. The right of removing a cause from a state court by a defendant entitled to try his right, or assert his privileges in the national forum, is, in fact, the exercise of an appellate jurisdiction, as that power may exist as well before as after judgment, and is not limited to cases pending in the courts of the United States. Had it been so limited, it would necessarily have followed that the jurisdiction of the Federal must have been exclusive of the state courts in all the cases enumerated in the Constitution; and, inasmuch as the judicial power of the United States embraces all those cases, the state courts cannot, consistently with the express terms of the Federal compact, entertain any jurisdiction in them without the right of appeal to the Federal tribunals. For if the state courts were allowed to exercise a concurrent jurisdiction in those cases free from such con. trol, the appellate jurisdiction of the Union would, as to the cases in question, have no existence; which would be contrary to the manifest intent of the Federal Constitution.

The appellate power of the Federal Courts must continue to extend to the state courts, so long as the latter entertain any concurrent jurisdiction over the cases which the Constitution has declared to fall