nation" are different-that the federal judiciary has no jurisdiction in the case of a "foreign nation," and that congress has no power to regulate commerce with a "foreign state." In the tenth section of the first article, clause second (prohibiting the states from entering into alliances), the words employed are "foreign powers." This, upon the same principle, would exclude "foreign powers" from both the former articles.

The same argument would perhaps take away the treaty-making power with the Indians from the United States. A treaty cannot well be made with those who, according to the constitution, as thus understood, have no capacity to fulfil their engagements, or even to be bound by them.

It would work out a result still more repugnant to what was certainly intended. If the use of the word "tribes" in the first article excludes the application of the words "foreign states" in the third, it must equally exclude the words "foreign powers" in the section just referred to (article first, section tenth, clause second.) What follows? That the states individually are not prohibited from making compacts with the Indians, because they are not "foreign powers." No one, it is believed, would contend for this.

But has it ever been admitted as a sound rule of construction, justly applicable to the constitution, that a specification must necessarily restrain the general `words which precede it, and can in no case be considered as merely redundant? There are repeated instances in the same section, where such a rule would be fatal to the sense. See clauses five, ten, thirteen, &c.

It is submitted, however, that the process of verbal criticism is not the correct mode of dealing with a constitution of government, where the grants of power are necessarily made in a few words. It must be inter

preted in a different way. Some weight must be allowed to the general intention and design of the instrument. The judicial power of the United States was intended to be co-extensive with the legislative and executive, so as to form a government complete, within the range of its powers, in all its departments, and capable of independent existence. Osbourn vs. Bank of the United States, 9 Wheat. 818.

The treaty-making power confessedly belongs exclusively, to the United States. Treaties thus made are declared to be the supreme law of the land. "Cases arising under treaties" are, therefore in express terms assigned by the article under consideration to the federal judiciary. The subject belongs to the United States tribunals, and not to the tribunals of the states. Of this, there can be no dispute. Why then suppose it to be excluded from the original jurisdiction of this court? A state of the union is a party, and it is the dignity of that party alone which entitles the case from its beginning to the attention of the highest tribunal. The character of the other party is in this respect of no importance. What reason can be assigned for an exclusion so contradictory? Why should the constitution which says expressly that, in all cases where a state is a party, the supreme court shall have original jurisdiction, be made to say by implication, that in this case, where a state is a party, it shall not have original jurisdiction? To what jurisdiction would they be referred. The same argument which took away the alien character of the nation would equally destroy the alien character of the individuals composing it. They certainly are not citizens; and if they be not aliens, what are they? Outlaws. Declared outlaws, without a nation, and without protection. Public law abhors such a state of existence. It is not more essential in municipal arrangements that every thing capable of ownership should have a

The

legal and determinate owner, than it is in the great society of nations that every man should be bound by some allegiance, should be a member of some community. Cherokee Indians are willing to be so. They are so. They are more so now than they were at any former period. Guided by our counsels, aided by our efforts (for which we have taken much credit with the world) they have become civilized and enlightened, and attached to the arts of civilized life; and are consolidating their advantages under a form of government instituted at the suggestion of one of our most eminent statesmen.* The preser

* The following is the speech addressed to them by Mr. Jefferson.

My Children, Deputies of the Cherokee Upper Towns.

I have maturely considered the speeches you have delivered me, and will now give you answers to the several matters they contain.

You inform me of your anxious desires to engage in the industrious pursuits of agriculture and civilized life; that finding it impracticable to induce the nation at large to join in this, you wish a line of separation to be established between the Upper and Lower Towns, so as to include all the waters of the Highwassee in your part; and that having thus contracted your society within narrower limits, you propose, within these, to begin the establishment of fixed laws and of regular government. You say that the Lower Towns are satisfied with the division you propose, and on these several matters you ask my advice and aid.

With respect to the line of division between yourselves and the Lower Towns, it must rest on the joint consent of both parties. The one you propose appears moderate, reasonable and well defined; we are willing to recognize those on each side of that line as distinct societies, and if our aid shall be necessary to mark it more plainly than nature has done, you shall have it. I think with you that on this reduced scale, it will be more easy for you to introduce the regular administration of laws.

In proceeding to the establishment of laws, you wish to adopt them from ours, and such only for the present as suit your present condition; chiefly indeed, those for the punishment of crimes and the protection of property. But who is to determine which of our laws suit your condition, and shall be in force with you? All of you being equally free, no one has a right to say what shall be law for the others. Our way is to put these questions to the vote, and to consider that as law for which the majority votes-the fool has as great a right to express his opinion by vote as the wise, because

vation of their character as a state was essential to their happiness and even to their existence; it was essential, too, to enable them to fulfil many of their treaty obligations towards the United States.

In conclusion, upon this point, Mr. Sergeant remarked that he would not be understood to question the power of the United States over the whole matter. He would not

he is equally free, and equally master of himself. But as it would be inconvenient for all your men to meet in one place, would it not be better for every town to do as we do: that is to say, choose by the vote of the majority of the town and of the country people nearer to that than to any other town, one, two, three or more, according to the size of the town, of those whom each voter thinks the wisest and honestest men of their place, and let these meet together and agree which of our laws suit them. But these men know nothing of our laws. How then can they know which to adopt? Let them associate in their council our beloved man living with them, Colonel Meigs, and he will tell them what our law is on any point they desire. He will inform them also of our methods of doing business in our councils, so as to preserve order, and to obtain the vote of every member fairly. This council can make a law for giving to every head of a family a separate parcel of land, which, when he has built upon and improved, it shall belong to him and his descendants for ever, and which the nation itself shall have no right to sell from under his feet. They will de termine too, what punishment shall be inflicted for every crime. In our states generally, we punish murder only by death, and all other crimes by solitary confinement in a prison.

But when you shall have adopted laws, who are to exccute them? Perhaps it may be best to permit every town and the settlers in its neighbourhood attached to it, to select some of their best men, by a majority of its voters, to be judges in all differences, and to execute the law according to their own judgment. Your council of representatives will decide on this, or such other mode as may best suit you. I suggest these things, my chil dren, for the consideration of the Upper Towns of your nation, to be decided on as they think best, and I sincerely wish you may succeed in your laudable endeavours to save the remains of your nation, by adopting industrious occupations, and a government of regular laws. In this you may rely on the counsel and assistance of the government of the United States. Deliver these words to your people in my name, and assure them of my friend. ship. THOMAS JEFFERSON.

JANUARY 9, 1809.

undertake to say what congress might do. But until the power was plainly exercised, to the extent of abrogating the treaties, upon the responsibility which belonged to such a step; those treaties would continue to be the law, and must be respected and executed as such.

2. That a sufficient "case" or "controversy" was presented to call for the exercise of judicial power.

What constituted such a case? "A case in law or equity" is a term well understood, and of limited signification. It is "a controversy between parties which has taken a shape for judicial decision." (Speech of Chief Justice Marshall in the matter of Nash alias Robbins, note to Bee, 277.) It is defined also in 9 Wheat. 819. "This clause" (1st clause, 2d sect. 3d art. Constitution United States)" enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting upon it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the constitution declares, that the judicial power shall extend to all cases arising under the constitution, laws, and treaties of the United States."

To make such a case a controversy, there must be, 1. Parties capable of suing and being sued. 2. A subject matter proper for judicial decision.

1. It could not be questioned that here were such parties. They were within the very words of the constitution. That clause admitted at the same time, that there might be subjects of judicial controversy between such parties; there is, therefore, no presumption from their character against the jurisdiction. It might be, that a question between the United States and a foreign state, arising upon a treaty, could not be a case of judicial cog