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any thing to limit or alter this natural and unavoidable construction as applied to the question of jurisdiction? In other words, is it true that though “foreign states" to other intents, they are not “foreign states" within the terms of the provision for the judiciary?
The only conceivable suggestion to the contrary, if any there be, must be derived from the third clause of the eighth section of the first article. Congress shall have power, it is there said, “ to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The argument may be, that what are here called "Indian tribes” are specified, because they are not comprehended in the words “ foreign nations;"
? and therefore can not be considered as embraced by the words " foreign states," in the third article of the constitution. This, it will be observed, is a mere verbal criticism, which, if allowed to prove any thing, would prove far to much. The provisions are framed for different purposes and with different views, and are found in different parts of the constitution. The one relates to the legislature, the other to the judiciary. There is no incompatibility between them, nor is there any difficulty at all in letting them stand together, inasmuch as they do not belong to the same subject.
In what sense is the word “tribes” to be considered as here used ? Its original and most appropriate meaning is a subdivision of a state, nation or community, forming a constituent part of it, but set apart or distinguished for the more convenient management of its affairs.
Thus, Rome was divided into tribes,” in the first instance three, and finally thirty-five. Athens was
divided into ten tribes. There were the twelve tribes of Israel, forming together one nation, under one head, until the revolt of the ten tribes, when they became two nations, and so continued until the ten were lost. The
constitution cannot have used the word in this sense. We know of no such subdivisions within the Indian nations; and if there had been, no one will suppose that the power given to congress was only to deal with portions of the nations. Sometimes, it is true, this word is applied to wandering hordes, who have no territory ; no fixed residence, and no organic structure. But this could not be affirmed of the Cherokee nation. They had a territory; they had fixed boundaries; they had laws and government; they were already parties to a treaty with the United States, and in that treaty were expressly denominated a “nation.” Whatever might have been the habits of individuals, the nation had a local habitation, and sufficient stability to be treated with as an organized community.* Was it meant to be excluded from the power of congress? This word “tribes" 'will be found to occur frequently in the journals of the old congress, and especially in the report before referred to, of August 1787; where it is manifestly employed as synonymous or equivalent to "nations," If it be more comprehensive it might be used from greater caution, in order to cover the whole subject; to comprehend tribes, if any such there were, which were not nations. It would not, therefore, exclude those which were nations, but they would be embraced by both the words. So it has been construed in practice.
But if this verbal argument have any weight, we shall be obliged by it to concede that wherever it happens that different words are used, though occuring in different parts of the constitution and on different branches of power, they must necessarily mean a different thing. Then it will follow, that "a foreign state” and “foreign
* The present principal town of the Cherokee nation will be found men. tioned in the earliest records of congress by the name of Chota.
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
“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
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. The 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
* 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, 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