600 CONSTITUTION OF THE U. STATES. [BOOK III.

classes of cases in the constitution, without control, then the appellate jurisdiction of the United States might, as to such cases, have no real existence, contrary to the manifest intent of the constitution. Under such circumstances, to give effect to the judicial power, it must be construed to be exclusive; and this, not only when the casus faederis should arise directly, but when it should arise incidentally in cases pending in state courts. This construction would abridge the jurisdiction of such courts far more, than has been ever contemplated in any act of congress.

1729. "On the other hand, if, as has been contended, a discretion be vested in congress to establish, or not to establish, inferior courts at their own pleasure, and congress should not establish such courts, the appellate jurisdiction of the Supreme Court would have nothing to act upon, unless it could act upon cases pending in the state courts. Under such circumstances it must be held, that the appellate power would extend to state courts; for the constitution is peremptory, that it shall extend to certain enumerated cases, which cases could exist in no other courts. Any other construction, upon this supposition, would involve this strange contradiction, that a discretionary power, vested in congress, and which they might rightfully omit to exercise, Would defeat the absolute injunctions of the constitution in relation to the whole appellate power.

1730. "But it is plain, that the framers of the constitution did contemplate, that cases within the judicial cognizance of the United States, not only might, but would arise in the state courts in the exercise of their ordinary jurisdiction. With this view, the sixth article declares, that 'this constitution, and

CH. XXXVIII.] JUDICIARY--JURISDICTION. 601

the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges, in every state, shall be bound thereby, any thing, in the constitution or laws of any state, to the contrary notwithstanding.' It is obvious, that this obligation is imperative upon the state judges in their official, and not merely in their private capacities. From the very nature of their judicial duties, they would be called upon to pronounce the law, applicable to the case in judgment. They were not. to decide, merely according to the laws, or constitution of the state, but according to the constitution, laws, and treaties of the United States, -- 'the supreme law of the land.'

1731. "A moment's consideration will show us the necessity and propriety of this provision in cases, where the jurisdiction of the state courts is unquestionable. Suppose a contract, for the payment of money, is made between citizens of the same state, and performance thereof is sought in the courts of that state; no person can doubt, that the jurisdiction completely and exclusively attaches, in the first instance, to such courts. Suppose at the trial, the defendant sets up, in his defence, a tender under a state law, making paper money a good tender, or a state law, impairing the obligation of such contract, which law, if binding, would defeat the suit. The constitution of the United States has declared, that no state shall make any thing but gold or silver coin a tender in payment of debts, or pass a law impairing the obligation of contracts. If congress shall not have passed a law, providing for the removal of such a suit

602 CONSTITUTION OF THE U. STATES. [BOOK III.

to the courts of the United States, must not the state court proceed to hear, and determine it? Can a mere plea in defence be, of itself, a bar to further proceedings, so as to prohibit an inquiry into its truth, or legal propriety, when no other tribunal exists, to whom judicial cognizance of such cases is confided? Suppose an indictment for a crime in a state court, and the defendant should allege in his defence, thatthe crime was created by an ex post facto act of the state, must not the state court, in the exercise of a jurisdiction, which has already rightfully attached, have a right to pronounce on the validity, and sufficiency of the defence? It would be extremely difficult, upon any legal principles, to give a negative answer to these inquiries. Innumerable instances of the same sort might be stated, in illustration of the position; and unless the state courts could sustain jurisdiction in such cases, this clause of the sixth article would be without meaning or effect; and public mischiefs, of a most enormous magnitude, would inevitably ensue.

1732. "It must, therefore, be conceded, that the constitution, not only contemplated, but meant to provide for cases within the scope of the judicial power of the United States, which might yet depend before state tribunals. It was foreseen, that, in the exercise of their ordinary jurisdiction; state courts would, incidentally, take cognizance of cases arising under the constitution, the laws, and treaties of the United States. Yet to all these cases the judicial power, by the very terms of the constitution, is to extend. It cannot extend by original jurisdiction, if that has already rightfully and exclusively attached in the state courts, which (as has been already shown)

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 603

may occur; it must, therefore, extend by appellate jurisdiction, or not at all. It would seem to follow, that the appellate power of the United States must, in such cases, extend to state tribunals; and, if in such cases, there is no reason, why it should not equally attach upon all others within the purview of the constitution. It has been argued, that such an appellate jurisdiction overstate courts is inconsistent with the genius of our governments, and the spirit of the constitution. That the latter was never designed to act upon state sovereignties, but only upon the people; and that, if the power exists, it will materially impair the sovereignty of the states, and the independence of their courts. We cannot yield to the force of this reasoning; it assumes principles, which we cannot admit, and draws conclusions, to which we do not yield our assent.

1733. "It is a mistake, that the constitution was not designed to operate upon states in their corporate capacities. It is crowded with provisions, which restrain, or annul the sovereignty of the states, in some of the highest branches of their prerogatives. The tenth section of the first article contains a long list of disabilities and prohibitions imposed upon the states. Surely, when such essential portions of state sovereignty are taken away, or prohibited to be exercised, it cannot be correctly asserted, that the constitution does not act upon the states. The language of the constitution is also imperative upon the states, as to the performance of many duties. It is imperative upon the state legislatures to make laws prescribing the time, places, and manner of holding elections for senators and representatives, and for electors of president and vice-president. And in these, as well

604 CONSTITUTION OF THE U. STATES. [BOOK III.

as some other cases, congress have a right to revise, amend, or supercede the laws, which may be passed by state legislatures. When, therefore, the states are stripped of some of the highest attributes of sovereignty, and the same are given to the United States; when the legislatures of the states are, in some respects, under the control of congress, and, in every case, are, under the constitution, bound by the paramount authority of the United States; it is certainly difficult to support the argument, that the appellate power over the decisions of state courts is contrary to the genius of our institutions. The courts of the United States can, without question, revise the proceedings of the executive and legislative authorities of the states; and, if they are found to be contrary to the constitution, may declare them to be of no legal validity. Surely, the exercise of the same right over judicial tribunals is not a higher, or more dangerous act of sovereign power.

1734. "Nor can such a right be deemed to impair the independence of state judges. It is assuming the very ground in controversy to assert, that they possess an absolute independence of the United States. In respect to the powers granted to the United States, they are not independent; they are expressly bound to obedience by the letter of the constitution; and, if they should unintentionally transcend their authority, or misconstrue the constitution, there is no more reason for giving their judgments an absolute and irresistible force, than for giving it to the acts of the other co-ordinate departments of state sovereignty. The argument urged from the possibility of the abuse of the revising power is equally unsatisfactory. It is always a doubtful

CH. XXXVIII.] JUDICIARY--JURISDICTION. 605

course to argue against the use, or existence of a power, from the possibility of its abuse. It is still more difficult, by such an argument, to ingraft upon a general power a restriction, which is not to be found in the terms, in which it is given. From the very nature of things, the absolute right of decision, in the last resort, must rest somewhere. Wherever it may be vested, it is susceptible of abuse. In all questions of jurisdiction, the inferior, or appellate court, must pronounce the final judgment; and common sense, as well as legal reasoning, has conferred it upon the latter.

1735. "It has been further argued against the existence of this appellate power, that it would form a novelty in our judicial institutions. This is certainly a mistake. In the articles of confederation, an instrument framed with infinitely more deference to state rights, and state jealousies, a power was given to congress, to establish 'courts for revising and determining, finally, appeals in all cases of captures.' It is remarkable, that no power was given to entertain original jurisdiction in such cases; and, consequently, the appellate power, (although not so expressed in terms,) was altogether to be exercised in revising the decisions of state tribunals. This was, undoubtedly, so far a surrender of state sovereignty. But it never was supposed to be a power fraught with public danger, or destructive of the independence of state judges. On the contrary, it was supposed to be a power indispensable to the public safety, inasmuch as our national rights might otherwise be compromitted, and our national peace be endangered. Under the present constitution, the prize jurisdiction is confined to the courts of the United States; and a power to

606 CONSTITUTION OF THE U. STATES [BOOK III.

revise the decisions of state courts, if they should assert jurisdiction over prize causes, cannot be less important, or less useful, than it was under the confederation. In this connexion, we are led again to the construction of the words of the constitution, 'the judicial power shall extend,' &c. If, as has been contended at the bar, the term 'extend' have a relative signification, and mean to widen an existing power, it will then follow, that, as the confederation gave an appellate power over state tribunals, the constitution enlarged, or widened that appellate power to all the other cases, in which jurisdiction is given to the courts of the United States. It is not presumed, that the learned counsel would choose to adopt such a conclusion.

1736. "It is further argued, that no great public mischief can result from a construction, which shall limit the appellate power of the United States to cases in their own courts: first, because state judges are bound by an oath, to support the constitution of the United States, and must be presumed to be men of learning and integrity; and, secondly, because congress must have an unquestionable right to remove all cases, within the scope of the judicial power, from the state courts, to the courts of the United States, at any time before final judgment, though not after final judgment. As to the first reason, -- admitting that the judges of the state courts are, and always will be, of as much learning, integrity, and wisdom, as those of the courts of the United States, (which we very cheerfully admit,) it does not aid the argument. It is manifest, that the constitution has proceeded upon a theory of its own, and given, and withheld powers according to the judgment of the

CH. XXXVIII.] JUDICIARY--JURISDICTION. 607

American people, by whom it was adopted. We can only construe its powers, and cannot inquire into the policy, or principles, which induced the grant of them. The constitution has presumed (whether rightly or wrongly, we do not inquire) that state attachments, state prejudices, state jealousies, and state interests, might sometimes obstruct, or control, or be supposed to obstruct, or control, the regular administration of justice. Hence, in controversies between states; between citizens of different states; between citizens, claiming grants under different states; between a state and its citizens, or foreigners; and between citizens and foreigners; it enables the parties, under the authority of congress, to have the controversies heard, tried, and determined before the national tribunals. No other reason, than that, which has been stated, can be assigned, why some, at least, of these cases should not have been left to the cognizance of the state courts. In respect to the other enumerated cases, the cases arising under the constitution, laws, and treaties of the United States; cases affecting ambassadors and other public ministers; and cases of admiralty and maritime jurisdiction, -- reasons of a higher and more extensive nature, touching the safety, peace, and sovereignty of the nation, might well justify a grant of exclusive jurisdiction.

1737. "This is not all. A motive of another kind, perfectly compatible with the most sincere respect for state tribunals, might induce the grant of appellate power over their decisions. That motive is the importance, and even necessity, of uniformity of decisions throughout the whole United States upon all subjects within the purview of the constitution. Judges of equal learning and integrity, in different

608 CONSTITUTION OF THE U. STATES. [BOOK III.

states, might differently interpret a statute, or a treaty of the United States, or even the constitution itself. If there were no revising authority to control these jarring and discordant judgments, and harmonies them into uniformity, the laws, the treaties, and the constitution of the United States, would be different in different states; and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mischiefs, which would attend such a state of things, would be truly deplorable; and it cannot be believed, that they could have escaped the enlightened convention, which formed the constitution. What, indeed, might then have been only prophecy, has now become fact; and the appellate jurisdiction must continue to be the only adequate remedy for such evils.

1738. "There is an additional consideration, which is entitled to great weight. The constitution of the United States was designed for the common and equal benefit of all the people of the United States. The judicial power was granted for the same benign and salutary purposes. It was not to be exercised exclusively for the benefit of parties, who might be plaintiffs, and would elect the national forum; but also for the protection of defendants, who might be entitled to try their rights, or assert their privileges, before the same forum. Yet, if the construction contended for be correct, it will follow, that, as the plaintiff may always elect the state courts, the defendant may be deprived of all the security, which the constitution intended in aid of his rights. Such a state of things can, in no respect, be considered, as giving equal rights. To obviate this difficulty, we are referred to the power, which it is admitted, congress

CH. XXXVIII.] JUDICIARY--JURISDICTION. 609

possess to remove suits from state courts, to the national courts; and this forms the second ground, upon which the argument, we are considering, has been attempted to be sustained.

1739. "This power of removal is not to be found in express terms in any part of the constitution; if it be given, it is only given by implication, as a power necessary and proper to carry into effect some express power. The power of removal is certainly not, in strictness of language, an exercise of original jurisdiction; it presupposes an exercise of original jurisdiction to have attached elsewhere. The existence of this power of removal is familiar in courts, acting according to the course of the common law, in criminal, as well as in civil cases; and it is exercised before, as well as after judgment. But this is always deemed, in both cases, an exercise of appellate, and not of original jurisdiction. If, then, the right of removal be included in the appellate jurisdiction, it is only, because it is one mode of exercising that power; and as congress is not limited by the constitution to any particular mode, or time of exercising it, it may authorize a removal, either before, or after judgment. The time, the process, and the manner, must be subject to its absolute legislative control. A writ of error is, indeed, but a process, which removes the record of one court to the possession of another court, and enables the latter to inspect the proceedings, and give such judgment, as its own opinion of the law and justice of the case may warrant. There is nothing in the nature of the process, which forbids it from being applied by the legislature to interlocutory, as well as final judgments. And if the right of removal from state courts exist before judgment, because it is includ-

610 CONSTITUTION OF THE U. STATES. [BOOK III.

ed in the appellate power, it must, for the same reason, exist after judgment. And if the appellate power, by the constitution, does not include cases pending in state courts, the right of removal, which is but a mode of exercising that power, cannot be applied to them. Precisely the same objections, therefore, exist as to the right of removal before judgment, as after; and both must stand, or fall together. Nor, indeed, would the force of the arguments on either side materially vary, if the right of removal were an exercise of original jurisdiction. It would equally trench upon the jurisdiction, and independence of state tribunals.

1740. "The remedy, too, of removal of suits would be utterly inadequate to the purposes of the constitution, if it could act only on the parties, and not upon the state courts. In respect to criminal prosecutions, the difficulty seems admitted to be insurmountable; and in respect to civil suits, there would, in many cases, be rights without corresponding remedies. If state courts should deny the constitutionality of the authority to remove suits from their cognizance, in what manner could they be compelled to relinquish the jurisdiction? In respect to criminal cases, there would at once be an end of all control; and the state decisions would be paramount to the constitution. And though, in civil suits, the courts of the United States might act upon the parties; yet the state courts might act in the same way; and this conflict of jurisdictions would not only jeopard private rights, but bring into imminent peril the public interests. On the whole, the court are of opinion, that the appellate power of the United States does extend to cases pending in the state courts; and that the 25th section of the judiciary act, which authorizes the exercise of this Jurisdiction in the

CH. XXXVIII.] JUDICIARY--JURISDICTION. 611

specified cases, by a writ of error, is supported by the letter and spirit of the constitution. We find no clause in that instrument, which limits this power; and we dare not interpose a limitation, where the people have not been disposed to create one.

1741. "Strong as this conclusion stands upon the general language of the constitution, it may still derive support fromother sources. It is an historical fact, that this exposition of the constitution, extending its appellate power to state courts, was, previous to its adoption, uniformly and publicly avowed by its friends, and admitted by its enemies, as the basis of their respective reasonings, both in and out of the state conventions. It is an historical fact, that, at the time, when the judiciary act was submitted to the deliberations of the first congress, composed, as it was, not only of men of great learning and ability, but of men, who had acted a principal part in framing, supporting, or opposing that constitution, the same exposition was explicitly declared, and admitted by the friends, and by the opponents of that system. It is an historical fact, that the Supreme Court of the United States have, from time to time, sustained this appellate jurisdiction in a great variety of cases, brought from the tribunals of, many of the most important states in the Union; and that no state tribunal has ever breathed a judicial doubt on the subject, or declined to obey the mandate of the Supreme Court, until the present occasion. This weight of contemporaneous exposition by all parties, this acquiescence of enlightened state courts, and these judicial decisions of the Supreme Court, through so long a period, do, as we think, place the doctrine upon a foundation of authority, which cannot be shaken, with-

612 CONSTITUTION OF THE U. STATES. [BOOK III.

out delivering over the subject to perpetual, and irremediable doubts."1
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    1 The came subject is most elaborately considered in Cohens v. Virginia, (6 Wheat. R. 413 to 493,) from which the following extract is taken. After adverting to the nature of the national government, and its powers and capacities, Mr. Chief Justice Marshall proceeds as follows. "In a government so constituted, is it unreasonable, that the judicial power should be competent to give efficacy to the constitutional laws of the legislature? That department can decide on the validity of the constitution, or law of a state, if it be repugnant to the constitution, or to a law of the United States. Is it unreasonable, that it should also be empowered to decide on the judgment of a state tribunal, enforcing such unconstitutional law? Is it so very unreasonable, as to furnish a justification for controlling the words of the constitution?

    "We think it is not. We think that in a government, acknowledgedly supreme with respect to objects of vital interest to the nation, there is nothing inconsistent with sound reason, nothing incompatible with the nature of government, in making all its departments supreme, so far as respects those objects, and so far as is necessary to their attainment. The exercise of the appellate power, ever these judgments of the state tribunals, which may contravene the constitution, or laws of the United States, is, we believe, essential to the attainment of those objects.

    "The propriety of entrusting the construction of the constitution, and laws made in pursuance thereof, to the judiciary of the Union, has not, we believe, as yet been drawn into question. It seems to be a corollary from this political axiom, that the federal courts should either possess exclusive jurisdiction in such cases, or a power to revise the judgment rendered in them by the state tribunals. If the federal and state courts have concurrent jurisdiction in all cases arising under the constitution, laws, and treaties of the United States; and, if a case of this description, brought in a state court, cannot be removed before judgment, nor revised after judgment, then the construction of the constitution, laws, and treaties of the United States, is not. confided particularly to their judicial department; but is confided equally to that department, and to the state courts, however they may be constituted. 'Thirteen independent courts,' says a very celebrated statesman. (and we have now, more than twenty such courts,) 'of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which, nothing but contradiction and confusion can proceed.'

    "Dismissing the unpleasant suggestion, that any motives, which may not be fairly avowed, or which ought not to exist, can ever influence a state, or its courts, the necessity of uniformity, as well as correctness, in expounding the constitution and laws of the United States, would itself

CH. XXXVIII.] JUDICIARY--JURISDICTION. 613

1742. Another inquiry is, whether the judicial power of the United States in any cases, and if in any, in
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    suggest the propriety of vesting in some single tribunal the power of deciding. in the last resort, all cases, in which they are involved.

    "We are not restrained, then, by the political relation between the general and state governments, from construing the words of the constitution, defining the judicial power, in their true sense. We are not bound to construe them more restrictively than they naturally import.

    "They give to the Supreme Court appellate jurisdiction in all cases, arising under the constitution, laws, and treaties of the United States. The words are broad enough to comprehend all cases of this description, in whatever court they may be decided. In expounding them, we may be permitted to take into view those considerations, to which courts have always allowed great weight in the exposition of laws.

    "The framers of the constitution would naturally examine the state of things, existing at the time; and their work sufficiently attests, that they did so. All acknowledge, that they were convened for the purpose of strengthening the confederation, by enlarging the powers of the government, and by giving efficacy to those, which it before possessed, but could not exercise. They inform us, themselves, in the instrument they presented to the American public, that one of its objects was to form a more perfect Union. Under such circumstances, we certainly should not expect to find, in that instrument, a diminution of the powers of the actual government.

    "Previous to the adoption of the confederation, congress established courts, which received appeals in prize causes, decided in the courts of the respective states. This power of the government, to establish tribunals for these appeals, was thought consistent with, and was founded on, its political relations with the states. These courts did exercise appellate jurisdiction over those cases, decided in the state courts, to which the judicial power of the federal government extended.

    "The confederation gave to congress, the power 'of establishing courts, for receiving and determining, finally, appeals in all cases of captures.'

    "This power was uniformity construed to authorize those courts to receive appeals from the sentences of state courts, and to affirm or reverse them. State tribunals are not mentioned; but this clause, in the confederation, necessarily comprises them. Yet the relation between the general and state governments was much weaker, much more lax, under the confederation, than under the present constitution; and the states being much more completely sovereign, their institutions were much more independent.

    "The convention, which framed the constitution, on turning their

614 CONSTITUTION OF THE U. STATES. [BOOK III.

what cases, is exclusive in the courts of the United States, or may be made exclusive at the election of
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    attention to the judicial power, found it .limited to a few objects, but exercised, with respect to some of those objects, in its appellate form, over the judgments of the state courts. They extend it, among other objects, to all eases arising under the constitution, laws, and treaties of the United States; and in a subsequent clause declare, that in such cases the Supreme Court shall exercise appellate jurisdiction. Nothing seems to be given, which would justify the withdrawal of a judgment rendered in a state court, on the constitution, laws, or treaties of the United States, from this appellate jurisdiction.

    "Great weight has always been attached, and very rightly attached, to contemporaneous exposition. No question, it is believed, has arisen, to which this principle applies more unequivocally, than to that now under consideration.

    "The opinion of the Federalist has always been considered, as of ' great authority. It is a complete commentary on our constitution; and is appealed to by all parties, in the questions, to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part, two of its authors performed in framing the constitution, put it very much in their power to explain the views, with which it was framed. These essays having been published, while the constitution was before the nation, for adoption or rejection, and having been written in answer to objections, founded entirely on the extent of its powers, and on its diminution of state sovereignty, are entitled to the more consideration, where they frankly avow, that the power objected to is given, and defend it.

    "In discussing the extent of the judicial power, the Federalist* says, 'Here another question occurs: what relation would subsist between the national and state courts, in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the letter, to the Supreme Court of the United States. The constitution in direct terms gives an appellate jurisdiction to the Supreme Court, in all the enumerated cases of federal cognizance, in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. The objects of appeal, not the tribunals, from which it is to be made, are alone to he contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the state tribunals. Either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judicial authority of the Union may be

      * The Federalist, No. 82.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 615

Congress. This subject was much discussed in the case of Martin v. Hunter.1 On that occasion the court said2 "It will be observed, that there are two classes of cases enumerated in the constitution, between which a distinction seems to be drawn. The first class includes cases arising under the constitution, laws, and treaties of the United States; cases affect-
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    eluded at the pleasure of every plaintiff, or prosecutor. Neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the national and state systems are to be regarded as one whole. The courts of the latter, will of course be natural auxiliaries to the execution of the laws of the Union; and an appeal from them will as naturally lie to that tribunal, which is destined to unite, and assimilate the principles of natural justice, and the rules of national decision. The evident aim of the plan of the national convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the Union. To confine, therefore, the general expressions, which give appellate jurisdiction to the Supreme Court, to appeals from the subordinate federal courts, instead of allowing their extension to the state courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation.'

    "A contemporaneous exposition of the constitution, certainly of not less authority, than that, which has been just cited, is the judiciary act itself. We know that in the congress, which passed that act, were many eminent members of the convention, which formed the constitution. Not a single individual, so far as is known, supposed that part of the act, which gives the Supreme Court appellate jurisdiction over the judgments of the state courts, in the cases therein specified, to be unauthorized by the constitution." The 25th section of the judiciary act, of 1789, ch. 20, here alluded to, as contemporaneous construction of the constitution, is wholly founded upon the doctrine, that the appellate jurisdiction of the Supreme Court may constitutionally extend over causes in state courts. See also 1 Kent's Comm. Lect. 15; Rawle on Const. ch. 28; Sergeant on Const. ch. 7.

      1 1 Wheat. R. 304, 333.
      2 Ibid. See also Ex parte Cabrera, 1 Wash. Cir. R. 232.

616 CONSTITUTION OF THE U. STATES. [BOOK III.

ing ambassadors, other public ministers, and consuls; and cases of admiralty and maritime jurisdiction. In this class the expression is, that the judicial power shall extend to all cases. But in the subsequent part of the clause, which embraces all the other cases of national cognizance, and forms the second class, the word 'all' is dropped, seemingly ex industria. Here, the judicial authority is to extend to controversies, (not to all controversies) to which the United States shall be a party, &c. From this difference of phraseology, perhaps a difference of constitutional intention may, with propriety, be inferred. It is hardly to be presumed, that the variation in the language could have been accidental. It must have been the result of some determinate reason; and it is not very difficult to find a reason, sufficient to support the apparent change of intention. In respect to the first class, it may well have been the intention of the framers of the constitution imperatively to extend the judicial power, either in an original, or appellate form, to all cases; and, in the latter class, to leave it to congress to qualify the jurisdiction, original or appellate, in such manner, as public policy might dictate.

1743. "The vital importance of all the cases, enumerated in the first class, to the national sovereignty, might warrant such a distinction. In the first place, as to cases arising under the constitution, laws, and treaties of the United States. Here the state courts could not ordinarily possess a direct jurisdiction. The jurisdiction over such cases could not exist in the state courts previous to the adoption of the constitution. And it could not afterwards be directly conferred on them; for the constitution expressly requires the judicial power to be vested in courts

CH. XXXVIII.] JUDICIARY--JURISDICTION. 617

ordained and established by the United States. This class of cases would embrace civil as well as criminal jurisdiction, and affect not only our internal policy, but our foreign relations. It would, therefore, be perilous to restrain it in any manner whatsoever, inasmuch as it might hazard the national safety. The same remarks may be urged as to cases affecting ambassadors, other public ministers, and consuls, who are emphatically placed under the guardianship of the law of nations. And as to cases of admiralty and maritime jurisdiction, the admiralty jurisdiction embraces all questions of prize and salvage, in the correct adjudication of which foreign nations are deeply interested; it embraces also maritime torts, contracts, and offences, in which the principles of the law and comity of nations often form an essential inquiry. All these cases, then; enter into the national policy, affect the national rights, and may compromit the national sovereignty. The original or appellate jurisdiction ought not, therefore, to be restrained; but should be commensurate with the mischiefs intended to be remedied, and, of course, should extend to all cases whatsoever.

1744. "A different policy might well be adopted in reference to the second class of cases; for although it might be fit, that the judicial power should extend to all controversies, to which the United States should be a party; yet this power might not have been imperatively given, lest it should imply a right to take cognizance of original suitsbrought against the United States, as defendants in their own courts. It might not have been deemed proper to submit the sovereignty of the United States, against their own will, to judicial cognizance, either to enforce rights,

618 CONSTITUTION OF THE U. STATES. [BOOK III.

or to prevent wrongs. And as to the other cases of the second class, they might well be left to be exercised under the exceptions and regulations, which congress might, in their wisdom, choose to apply. It is also worthy of remark, that congress seem, in a good degree, in the establishment of the present judicial system, to have adopted this distinction. In the first class of cases, the jurisdiction is not limited, except by the subject-matter; in the second, it is made materially to depend upon the value in controversy.

1745. "We do not, however, profess to place any implicit reliance upon the distinction, which has here been stated, and endeavoured to be illustrated. It has the rather been brought into view in deference to the legislative opinion, which has so long acted upon, and enforced, this distinction. But there is, certainly, vast weight in the argument, which has been urged, that the constitution is imperative upon Congress to vest all the judicial power of the United States in the shape of original jurisdiction in the supreme and inferior courts, created under its own authority. At all events, whether the one construction or the other prevail, it is manifest, that the judicial power of the United States is unavoidably, in some cases, exclusive of all state authority, and in all others, may be made so at the election of congress. No part of the criminal jurisdiction of the United States can, consistently with the constitution, be delegated to state tribunals. The admiralty and maritime jurisdiction is of the same exclusive cognizance; and it can only be in those cases, where, previous to the constitution, state tribunals possessed jurisdiction independent of national authority, that they can now constitutional-

CH. XXXVIII.] JUDICIARY--JURISDICTION. 619

ly exercise a concurrent jurisdiction. Congress, throughout the judicial act, and particularly in the 9th, 11th, and 13th sections, have legislated upon the supposition, that in all the cases, to which the Judicial power of the United States extended, they might rightfully vest exclusive jurisdiction in their own courts."

1746. The Federalist has spoken upon the same subject in the following terms. "The only thing in the proposed constitution, which wears the appearance of confining the causes of federal cognizance to the federal courts, is contained in this passage; 'The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress shall from time to time ordain and establish.' This might either be construed to signify, that the supreme and subordinate courts of the union should alone have the power of deciding those causes, to which their authority is to extend; or simply to denote, that the organs of the national judiciary should be one supreme court, and as many subordinate courts, as congress should think proper to appoint; in other words, that the United States should exercise the judicial power, with which they are to be invested, through one supreme tribunal, and a certain number of inferior ones, to be instituted by them. The first excludes, the last admits, the concurrent jurisdiction of the state tribunals; and as the first would amount to an alienation of state power by implication, the last appears to me the most defensible construction.

1747. "But this doctrine of concurrent jurisdiction, is only clearly applicable to those descriptions of causes, of which the state courts had previous cognizance. It is not equally evident in relation to cases,

620 CONSTITUTION OF THE U. STATES. [BOOK III.

which may grow out of, and be peculiar to, the constitution to be established: for not to allow the state courts a right of jurisdiction in such cases, can hardly be considered as the abridgement of apre-existing authority. I mean not, therefore, to contend, that the United States, in the course of legislation upon the objects intrusted to their direction, may not commit the decision of causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient; but I hold, that the state courts will fie divested of no part of their primitive jurisdiction further than may relate to an appeal. And I am even of opinion, that in every case, in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes, to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and, in civil cases, lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not jess than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the state governments, and the national governments, as they truly are, in the light of kindred systems, and as parts of one whole, the inference seems to be conclusive, that the state courts would have a concurrent jurisdiction in all eases arising under the laws of the union, where it was not expressly prohibited."1
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    1 See The Federalist, No. 82. Id. 81.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 621

1748. it would be difficult, and perhaps not desirable, to lay down any general rules in relation to the cases, in which the judicial power of the courts of tim United States is exclusive of the state courts, or in which it may be made so by congress, until they shall be settled by some positive adjudication of the Supreme Court. That there are some cases, in which that power is exclusive, cannot well be doubted; that there are others, in which it may be made so by congress, admits of as little doubt; and that in other cases it is concurrent in the state courts, at least until congress shall have passed some act excluding the concurrent jurisdiction, will scarcely be denied.1 It seems to be admitted, that the jurisdiction of the courts of the United States is, or at least may be, made exclusive in all cases arising under the constitution, laws, and treaties of the United States;2 in all cases affecting ambassadors, other public ministers and consuls;3 in all cases (in their character exclusive) of admiralty and maritime jurisdiction;4 in controversies, to which the United States shall be a party; in controversies between two or more states; in
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    1 See Cohens v. Virginia, 6 Wheat. R. 396, 397; 2 Elliot's Deb. 380, 381. See 11 Wheat. R. 472, note; Rawle on Const. ch. 21; l Kent's Comm. Lect 18, p. 370, &c. (2 edition, 395, &c.); l Tucker's Black. Comm. App. 181, 182 183; Governor of Georgia v. Madraza, l Peters's Sup. R. 128, 129, Per Johnson J.
    2 Cohens v. Virginia, 6 Wheat. R. 396, 397; Houston v. Moore, 5 Wheat R. 25 to 28; Id. 69, 71; Slocum v. Maybury; 2 Wheat R. l; Hoyt v. Gelston, 3 Wheat. R. 246, 311.
    3 The Federalist, No. 82; Martin v. Hunter, 1 Wheat. R. 336, 337.
    4 See 2 Elliot's Deb. 380; Cohens v. Virginia, 6 Wheat. R. 396, 397; Martin v. Hunter, 1 Wheat. R. 337, 373; Houston v. More. 5 Wheat. R. 49; United States v. Bevans, 3 Wheat. R. 387; Ante, Vol. III., 1665; Ogden v. Saunders, 12 Wheat R. 278, Johnson J.; Janney v. Co1umbian Ins. Co., 10 Wheat R. 418.

622 CONSTITUTION OF THE U. STATES. [BOOK III.

controversies between a state and citizens of another state; and in controversies between a state and foreign states, citizens, or subjects.1 And it is only in those cases, where, previous to the constitution, state tribunals possessed jurisdiction, independent of national authority, that they can now constitutionally exercise a concurrent jurisdiction.2 Congress, indeed, in the Judiciary Act of 1789, (ch. 20, 9, 11, 13,) have manifestly legislated upon the supposition, that; in all cases, to which the judicial power of the United States extends, they might rightfully vest exclusive jurisdiction in their own courts.3

1749. It is a far more difficult point, to affirm the right of congress to vest in any state court any part of the judicial power confided by the constitution to the national government. Congress may, indeed, permit the state courts to exercise a concurrent jurisdiction in many cases; but those courts then derive no authority from congress over the subject matter, but are simply left to the exercise of such jurisdiction, as is conferred on them by the state constitu-
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    1 See 1 Tucker's Black. Comm. App. 181, 182, 183; 1 Kent's Comm. Lect. 18, p. 370, &c. (2 edit. p. 395 to 404.}
    2 Martin v. Hunter, 1 Wheat. R. 336, 337; The Federalist, No. 27, No. 82; Houston v. Moore, 5 Wheat. R. 49.
    3 Ibid. See I Peters's Sup. Ct. R. 128, 129, 130, per Johnson J.; Ex parte Cabrera, 1 Wash. Cir. R. 232. -- It would seem, upon the common principles of the laws of nations, as ships of war of a government are deemed to be under the exclusive dominion and sovereignty of their own government, wherever they may be, and thus enjoy an extra territorial immunity, that crimes committed on board of ships of war of the United States, in port, as well as at sea, are exclusively cognizable, and punishable by the United States. The very point arose in United States v. Beans, (3 Wheat. R. 336, 388); but it was not decided. The result of that trial, however, showed the general opinion, that the state courts had no jurisdiction; as the law of officers of the state declined to interfere, after the decision in the Supreme Court of the United States.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 623

tion and laws. There are, indeed, many acts of congress, which permit jurisdiction over the offences therein described, to be exercised by state magistrates and courts; but this (it has been said by a learned judge,1) is not, because such permission was considered to be necessary, under the constitution, to vest a concurrent jurisdiction in those tribunals; but because the jurisdiction was exclusively vested in the national courts by the judiciary act; and consequently could not be otherwise executed by the state courts. But, he has added, "for I hold it to be perfectly clear, that congress cannot confer jurisdiction upon any courts, but such as exist under the constitution and laws of the United States; although the state courts may exercise jurisdiction in cases authorized by the laws of the state, and not prohibited by the exclusive jurisdiction of the federal courts." This latter doctrine was positively affirmed by the Supreme Court in Martin v. Hunter;2 and indeed seems, upon general principles, indisputable. In that case, the court said, "congress cannot vest any portion of the judicial power of the United States, except in courts, ordained and established by itself."3
________________________________

    1 Mr. Justice Washington in Houston v. Moore, 5 Wheat. R. 27, 28; The Federalist, No. 27; Id. No. 82.
    2 1 Wheaton's R. 330. See 1 Kent's Comm. Lect. 18, p. 375, (2 edit. p. 400.)
    3 Ibid. See also Houston v. Moore, 5 Wheat. R. 68, 69. See 1 Kent's Comm. Lect. 18, p. 375, &c. (2 edit. p. 400 to 404.)-- The Federalist (No. 81) seems faintly to contend, that congress might vest the jurisdiction in the state courts, "to confer upon the existing courts of the several states the power of determining such causes, would, perhaps, be as much to 'constitute tribunals,' as to create new courts with the like power." But, how is this reconcileable with the context of the constitution? "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts, as congress may,

624 CONSTITUTION OF THE U. STATES. [BOOK III.

1750. In regard to jurisdiction over crimes committed against the authority of the United States, it has been held, that no partof this jurisdiction can, consistently with the constitution, be delegated to state tribunals.1 It is true, that congress has, in various acts, conferred the right to prosecute for offences, penalties, and forfeitures, in the state courts. But the latter have, in many instances, declined the jurisdiction, and asserted its unconstitutionality. And Certainly there is, at the present time, a decided preponderance of judicial authority in the state, courts against the authority of congress to confer the power.2

1751. In the exercise of the jurisdiction confided respectively to the state courts; and those courts of the United States, (where the latter have not appellate jurisdiction,) it is plain, that neither can have any right to interfere with, or control, the operations of the other. It has accordingly been settled, that no state court can issue an injunction upon any judgment in a court of the United States; the latter having an exclusive au-
________________________________

    from time to time, ordain and establish. The judges both of the Supreme and inferior courts, shall hold their offices during good behaviour," &c. Are not these judges of the inferior courts the same, in whom the jurisdiction is to be vested? Who are to appoint them? Who are to pay their salaries? Can their compensation be diminished? All these questions must be answered with reference to the same judges, that is, with reference to judges of the Supreme and inferior courts of the United States, and not of state courts. See also The Federalist, No. 45.
      1 Martin v. Hunter, 1 Wheat. R. 337; Houston v. Moore, 5 Wheat.R. 35, 69, 71, 74, 75.
      2 See Sergeant on Const. Law, ch. 27, (ch. 28;) United States, v. Campbell, 6 Hall's Law Jour. 113; United States v. Lathrop, 17 John. R. 5; Corulh v. Freely, Virginia Cases, 321; Ely v. Peck, 7 Connecticut R. 239; 1 Kent's Comm. Lect. 18, p. 370, &c. (2 edit. p. 395 to 404.) But see 1 Tucker's Black. Comm. App. 181, 182; Rawle on Const. ch. 21.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 625

thority over its own judgments and proceedings.1 Nor can any state court, or any state legislature, annul the judgments of the courts of the United States, or destroy the rights acquired under them;2 nor in any manner deprive the Supreme Court of its appellate jurisdiction;3 nor in any manner interfere with, or control the process (whether mesne or final) of the courts of the United States;4 nor prescribe the rules or forms of proceeding, nor effect of process, in the courts of the United States;5 nor issue a mandamus to an officer of the United states, to compel him to perform duties, devolved on him by the laws of the United States.6 And although writs of habeas corpus have been issued by state judges, and state courts, in cases, where the party has been in custody under the authority of process of the courts of the United States, there has been considerable diversity of opinion, whether such an exercise of authority is constitutional; and it yet remains to be decided, whether it can be maintained.7

1752. Indeed, in all cases, where the judicial power of the United States is to be exercised, it is for congress alone to furnish the rules of proceeding, to
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    1 McKim v. Voorhis, 7 Cranch's R. 279; 1 Kent's Comm. Lect 19, p. 382 to 387, (2 edit. 409 to 412.)
    2 United States v. Peters, 5 Cranch, 115; 8. C. 2 Peters's Cond. R. 202; 1 Kent's Comm. Lect 19, p. 382, &c. (2 edit. p. 409, &c.)
    3 Wilson v. Mason, 1 Cranch, 94; 8. C. 1 Peters's Cond. R. 242; 1 Kent's Comm. Lect 19, p. 382, (2 edit 409.)
    4 United States v. Wilson, 8 Wheat. R. 253.
    5 Wayman v. Southard, 10 Wheat. R. 1. 21, 22; Bank of the United States v. Halsted, 10 Wheat R. 51.
    6 McClung v. Silliman, 6 Wheat R. 598.
    7 See Sergeant on Const Law, ch. 27, (ch. 28;) 1 Kent's Comm. Lect. 18, p. 375, (2 edit p. 400.) See 1 Tucker's Black. Comm. App.. 291, 292.

626 CONSTITUTION OF THE U. STATES. [BOOK III.

direct the process, to declare the nature and effect of the process, and the mode, in which the judgments, consequentthereon, shall be executed. No state legislature, or state court, can have the slightest right to interfere; and congress are not even capable of delegating the right to them. They may authorize national courts. to make general rules and orders, for the purpose of a more convenient exercise of their jurisdiction; but they cannot delegate to any state authority any control over the national courts.1

1753. On the other hand the national courts have no authority (in cases not within the appellate jurisdiction of the United States) to issue injunctions to judgments in the state courts;2 or in any other manner to interfere with their jurisdiction or proceedings.3

1754. Having disposed of these points, we may again recur to the language of the constitution for the purpose of some farther illustrations. The language is, that "the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the congress shall make."

1755. In the first place, it may not be without use to ascertain, what is here meant by appellate jurisdiction; and what is the mode, in which it may be exercised. The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted, and does not create that
________________________

    1 Wayman v. Southard, 10 Wheat. R. 1; Palmer v. Allen, 7 Cranch, R. 550; Gibbons v. Ogden, 9 Wheat. R. 267, 208; Bank of the United States v. Halstead, 10 Wheat. R. 51.
    2 Diggs v. Wolcott, 4 Cranch, 178. See 1 Kent's Comm. Lect. 15, p. 301, (2 edit. 321.)
    3 Ex parte Cabrera, 1 Wash. Cir. R. 232; 1 Kent's Comm. Lect. 19, p. 386, (2 edit. p. 411, 412.)

CH. XXXVIII.] JUDICIARY--JURISDICTION. 627

cause.1 In reference to judicial tribunals, an appellate jurisdiction, therefore, necessarily implies, that the subject matter has been already instituted in, and acted upon, by some other court, whose judgment or proceedings are to be revised. This appellate jurisdiction may be exercised in a variety of forms, and indeed in any form, which the legislature may choose to prescribe;2 but, still, the substance must exist, before the form can be applied to it. To operate at all, then, under the constitution of the United States, it is not sufficient, that there has been a decision by some officer, or department of the United states; it might be by one clothed with judicial authority, and acting in a judicial capacity. A power, therefore, conferred by congress on the Supreme Court, to issue a mandamus to public officers of the United States generally, is not warranted by the constitution; for it is, in effect, under such circumstances, an exercise of original jurisdiction.3 But where the object is to revise a judicial proceeding, the mode is wholly immaterial; and a writ of habeas corpus, or mandamus, a writ of error, or an appeal, may be used, as the legislature may prescribe.4

1756. The most usual modes of exercising appellate jurisdiction, at least those, which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin, and removes a cause, entirely subjecting
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    1 Marbury v. Madison, 1 Cranch, R. 175, 176; 8. C. 1 Peters's Cond. R. 267, 282; The Federalist, No. 81; Weston v. City Council of Charleston, 2 Peters's Sup. R. 449.
    2 Ibid.
    3 Ibid.
    4 Ibid; United States v. Hamilton, 3 Dall. 17; Ex parte Bollman, 4 Cranch, R. 75; Ex parte Kearney, 7 Wheat. R. 38; Ex parte Crane, 5 Peters's Sup. R. 190.

628 CONSTITUTION OF THE U. STATES. [BOOK III.

the fact, as well as the law, to a review and a re-trial. A writ of error is a process of common law origin; and it removes nothing for re-examination, but the law.1 The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury.

1757. It is observable, that the language of the constitution is, that "the Supreme Court shall have appellate jurisdiction, both as to law and fact." This provision was a subject of no small alarm and misconstruction at the time of the adoption of the constitution, as it was supposed to confer on the Supreme Court, in the exercise of its appellate jurisdiction, the power to review the decision of a jury in mere matters of fact; and thus, in effect, to destroy the validity of their verdict, and to reduce to a mere form the right of a trial by jury in civil cases. The objection was at once seized hold of by the enemies of the constitution; and it was pressed with an urgency and zeal, which were well nigh preventing its ratification.2 There is certainly some foundation, in the ambiguity of the language, to justify an interpretation, that such a review might constitutionally be within the reach of the appellate power, if congress should choose to carry it to that extreme latitude.3 But, practically speaking, there was not the slightest danger, that congress would ever adopt such a course, even if it were within their
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    1 Wiscart v. Dauchy, 3 Dall. R. 321; 8. C. 1 Peters's Cond. R. 144; Cohens v. Virginia, 6 Wheat. R. 409 to 412.
    2 See l Elliot's Debates, 121, 122; 2 Elliot's Debates, 346, 380 to 410; Id. 413 to 427; 3 Elliot's Debates, 139 to 157; 2 Amer. Museum, 425; Id. 534; Id. 540, 548, 553; 3 Amer. Museum, 419, 420; 1 Tuck. Black. Comm. App. 351.
    3 2 Elliot's Debates, 318, 347, 419; 3 Elliot's Debates, 140, 149; Rawle on Const. ch. 10, p. 135.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 629

constitutional authority; since it would be at variance with all the habits, feelings, and institutions of the whole country. At least it might be affirmed, that congress would scarcely take such a step, until the people were prepared to surrender all the great securities of their civil, as well as of their political rights and liberties; and in such an event the retaining of the trial by jury would be a mere mockery. The real object of the provision was to retain the power of reviewing the fact, as well as the law, in cases of admiralty and maritime jurisdiction.1 And the manner, in which it is expressed, was probably occasioned by the desire to avoid the introduction of the subject of a trial by jury in civil cases, upon which the convention were greatly divided in opinion.

1758. The Federalist met the objection, pressed with much earnestness and zeal, in the following manner: "The propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamours have been loud against it, as applied to matters of fact. Some well intentioned men in this state, deriving their notions from the language and forms, which obtain in our courts, have been induced to consider it, as an implied supersedure of the trial by jury, in favour of the civil law mode of trial, which prevails in our courts of admiralty, probates, and chancery. A technical sense has been affixed to the term 'appellate,' which, in our law parlance, is commonly used in reference to appeals in the course of the civil law. But, if I am not misinformed, the same meaning would not be given to it in any part of New-England. There, an appeal from one jury to another is familiar
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    1 3 Elliot's Debates, 283.

630 CONSTITUTION OF THE U. STATES. [BOOK III.

both in language and practice, and is even a matter of course, until there have been two verdicts on one side. The word 'appellate,' therefore, will not be understood in the same sense in New-England, as in New-York, which shows the impropriety of a technical interpretation, derived from the jurisprudence of a particular state. The expression, taken in the abstract, denotes nothing more, than the power of one tribunal to review the proceedings of another, either as to the law, or fact, or both. The mode of doing it may depend on ancient custom, or legislative provision; in a new government it must depend on the latter, and may be with, or without, the aid of a jury, as may be judged advisable. If, therefore, the re-examination of a fact, once determined by a jury, should in any case be admitted under the proposed constitution, it may be so regulated, as to be done by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the Supreme Court.

1759. "But it does not follow, that the re-examination of a fact, once ascertained by a jury, will be permitted in the Supreme Court. Why may it not be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior court of law in this state, that the latter has jurisdiction of the fact, as well as the law? It is true, it cannot institute a new inquiry concerning the fact, but it takes cognizance of it, as it appears upon the record, and pronounces the law arising upon it. This is jurisdiction of both fact and law; nor is it even possible to separate them. Though the common law courts of this state ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law; and accordingly,

CH. XXXVIII.] JUDICIARY--JURISDICTION. 631

when the former is agreed in the pleadings, they have no recourse to a jury, but proceed at once to judgment. I contend, therefore, on this ground, that the expressions, 'appellate jurisdiction, both as to law and fact,' do not necessarily imply a re-examination in the Supreme Court of facts decided by juries in the inferior courts.

1760. "The following train of ideas may well be imagined to have influenced the convention, in relation to this particular provision. The appellate jurisdiction of the Supreme Court, it may have been argued, will. extend to causes determinable in different modes, some in the course of the common law, others in the course of the civil law. In the former, the revision of the law only will be, generally speaking, the proper province of the Supreme Court; in the latter, the re-examination of the fact is agreeable to usage; and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. It is therefore necessary, that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. It will not answer to make an express exception of cases, which shall have been originally tried by a jury, because in the courts of some of the states all causes are tried in this mode; and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. To avoid all inconveniences, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction, both as to law and fact, and that this jurisdiction shall be subject to such exceptions and regulations, as the national legislature may prescribe. This will enable the government to modify it in such a manner, as will best answer the ends of public justice and security.

632 CONSTITUTION OF THE U. STATES. [BOOK III.

1761. "This view of the matter, at any rate, puts it out of all doubt, that the supposed abolition of the trial by jury, by the operation of this provision, is fallacious and untrue. The legislature of the United States would certainly have full power to provide, that in appeals to the Supreme Court there should be no reexamination of facts, where they had been tried in the original causes by juries. This would certainly be an authorized exception; but if, for the reason already intimated, it should be thought too extensive, it might be qualified with a limitation to such causes only, as are determinable at common law in that mode of trial."1

1762. These views, however reasonable they may seem to considerate minds, did not wholly satisfy the popular opinion; and as the objection had a vast influence upon public opinion, and amendments were proposed by various state conventions on this subject, congress at its first session, under the guidance of the friends of the constitution, proposed an amendment, which was ratified by the people, and is nowincorporated into the constitution. It is in these words. "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of a trial by jury shall be preserved. And no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law." This amendment completely struck down the objection; and has secured the right of a trial by jury, in civil cases, in the fullest latitude of the common law.2 Like the other amendments, proposed by the same congress, it was coldly received by the enemies of the
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    1 The Federalist, No. 81. See also The Federalist, No. 83.
    2 See 1 Tuck. Black. Comm. App. 351; Rawle on Const. ch. 10, p. 135; Bank of Hamilton v. Dudley, 2 Peters's R. 492, 525.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 633

constitution, and was either disapproved by them, or drew from them a reluctant acquiescence.1 It weakened the opposition by taking away one of the strongest points of attack upon the constitution. Still it is a most important and valuable amendment; and places upon the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political and civil liberty.2
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    1 5 Marshall's Life of Washington, ch. 3, p. 209, 210.
    2 It is due to the excellent statesmen, who framed the constitution, to give their reasons for the omission of any provision in the constitution, securing the trial by jury in civil cases. They were not insensible to its value; but the diversity of the institutions of different states on this subject compelled them to acquiesce in leaving it entirely to the sound discretion of congress. The Federalist, No. 83, has given an elaborate paper to the subject, which is transcribed at large, as a monument of admirable reasoning and exalted patriotism.

    "The objection to the plan of the convention, which has met with most success in this state, is relative to the want of a constitutional provision for the trial by jury in civil cases. The disingenuous form, in which this objection is usually stated, has been repeatedly adverted to and exposed; but continues to be pursued in all the conversations and writings of the opponents of the plan. The mere silence of the constitution in regard to civil causes, is represented, as an abolition of the trial. by jury; and the declamations, to which it has afforded a pretext, are artfully calculated to induce a persuasion, that this pretended abolition is complete and. universal; extending not only to every species of civil, but even to criminal causes. To argue with respect to the latter, would be as vain and fruitless, as to attempt to demonstrate any of those propositions, which, by their own internal evidence, force conviction, when expressed in language adapted to convey their meaning.

    "With regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise, that a thing, which is only not provided for, is entirely abolished Every man of discernment must at once perceive the wide difference between silence and abolition. But, as the inventors of this fallacy have attempted to support it by certain legal maxims of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken.

    "The maxims, on which they rely, are of this nature: 'A specifics-

634 CONSTITUTION OF THE U. STATES. [BOOK III.

1763. Upon a very recent occasion the true interpretation and extent of this amendment came before the Supreme Court for decision, in a case from
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    tion of particulars is an exclusion of generals;' or, 'The expression of one thing is the exclusion of another.' Hence, say they, as the constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury, in regard to the latter.

    "The rules of legal interpretation are rules of common sense, adopted by the courts in the construction of the laws. The true test, therefore, of a just application of them, is its conformity to the source, from which they are derived. This being the case, let me ask, if it is consistent with common sense to suppose, that a provision obliging the legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize, or permit that mode of trial in other cases? Is it natural to suppose, that a command to do one thing is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done? If such a supposition would be unnatural and unreasonable, it cannot be rational to maintain, that an injunction of the trial by jury, in certain cases, is an interdiction of it in others.

    "A power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the constitution on the subject of juries, the legislature would be at liberty, either to adopt that institution, or to let it alone. This discretion, in regard to criminal causes, is abridged by an express injunction; but it is left at large in relation to civil causes, for the very reason, that there is a total silence on the subject. The specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation of employing the same mode in civil causes, but does not abridge the power of the legislature to appoint that mode, if it should be thought proper. The pretence, therefore, that the national legislature would not be at liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretence destitute of all foundation.

    "From these observations this conclusion results, that the trial by jury in civil cases would not be abolished; and that the use attempted to be made of the maxims, which have been quoted, is contrary to reason, and therefore inadmissible. Even if these maxims had a precise technical sense, corresponding with the ideas of those, who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government. In relation to such a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 635

Louisiana, where the question was, whether the Supreme Court could entertain a motion for a new trial, and re-examine the facts tried by a jury, that being
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    "Having now seen, that the maxims relied upon will not bear the use made of them, let us endeavour to ascertain their proper application. This will be best done by examples. The plan of the convention declares, that the power of congress, or, in other words, of the national legislature, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority; because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.

    "In like manner, the authority of the federal judicatures is declared by the constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction; because the objects of their cognizance being enumerated, the specification would be nugatory, if it did not exclude all ideas of more extensive authority.

    "These examples are sufficient to elucidate the maxims, which have been mentioned, and to designate the manner, in which they should be used.

    "From what has been said, it must appear unquestionably true, that trial by jury is in no case abolished by the proposed constitution; and it is equally true, that in those controversies between individuals, in which the great body of the people are likely to be interested, that institution will remain precisely in the situation, in which it is placed by the grate constitutions. The foundation of this assertion is, that the national judiciary will have no cognizance of them, and of course they will remain determinable, as heretofore, by the state courts only, and in the manner, which the state constitutions and laws prescribe. All land causes, except where claims under the grants of different staten come into question, and all other controversies between the citizens of the same state, unless where they depend upon positive violations of the articles of union, by acts of the state legislatures, will belong exclusively to the jurisdiction of the state tribunals. Add to this, that admiralty causes, and almost all those, which are of equity jurisdiction, are determinable under our own government, without the intervention of a jury; and the inference from the whole will be, that this institution, as it exists with us at present, cannot possibly be affected, to any great extent, by the proposed alteration in our system of government.

    "The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or, if there is any difference between them, it consists in this: the former regard it, as a valuable safeguard to liberty; the latter

636 CONSTITUTION OF THE U. STATES. [BOOK III.

the practice under the local law, and there being an act of congress, authorizing the courts of the United States in Louisiana to adopt the local practice, with
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    represent it, as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would he altogether superfluous to examine, to what extent it deserves to be esteemed useful, or essential in a representative republic, or how much if. ore merit it may be entitled to, as a defence against the oppressions of an hereditary monarch, than as a harrier to the tyranny of popular magistrates in a popular government. Discussions of this kind would be more curious, than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty. But I must acknowledge, that I cannot readily discern the inseparable connexion between the existence of liberty, and the trial by jury in civil easel. Arbitrary impeachments, arbitrary methods of prosecuting pretended offences, arbitrary punishments upon arbitrary convictions, have ever appeared to me the great engines of judicial despotism; and all these have relation to criminal proceedings. The trial by jury in criminal cases, aided by the habeas corpus act, seems therefore to be alone concerned in the question. And both of these are provided for, in the most ample manner, in the plan of the convention.

    "It has been observed, that trial by jury is a safeguard against an oppressive exercise of the power of taxation. This observation deserves to be canvassed.

    "It is evident, that it can have no influence upon the legislature, in regard to the amount of the taxes to be laid, to the objects, upon which they ere to be imposed, or to the rule, by which 'they are to be apportioned. If it can have any influence, therefore, it must be upon the mode of collection, and the conduct of the officers entrusted with the execution of the revenue laws.

    "As to the mode of collection in this state. under our own constitution, the trial by jury is in must cases out of use. The taxes are usually levied by the more summary proceeding of distress and sale, as in cases of rent. And it is acknowledged on all hands, that this is essential to the efficacy of the revenue laws. The dilatory course of a trial at law to recover the taxes imposed on individuals, would neither suit the exigencies or the public, nor promote the convenience of the citizens. It would often occasion an accumulation of costs moreburthensome, than the original sum of the tax to be levied.

    "And, as to the conduct of the officers of the revenue, the provision in favour of trial by jury in criminal cases, will afford the desired security. Wilful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offences against the

CH. XXXVIII.] JUDICIARY--JURISDICTION. 657

certain limitations. The Supreme Court held, that no authority was given by the act to re-examine the facts; and if it had been, an opinion was intimated of
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    government; for which the persons, who commit them, may be indicted and punished according to the circumstance of the case.

    "The excellence of the trial by jury in civil cases appears to depend on circumstances, foreign to the preservation of liberty. The strongest argument in its favour is, that it is a security against corruption. As there is always more time, and better opportunity, to tamper with a standing body of magistrates, than with a jury summoned for the occasion, there is room to suppose, that a corrupt influence would more easily. find its way to the former, than to the latter. The force of this consideration is, however, diminished by others. The sheriff, who is the summoner of ordinary juries, and the clerks of courts, who have the nomination of special juries, are themselves standing officers, and, acting individually, may be supposed more accessible to the touch of corruption, than the judges, who are a collective body. It is not difficult to see, that it would be in the power of those officers to select jurors, who would serve the purpose of the party, as well as a corrupted bench. In the next place, it may fairly be supposed, that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men, who had been chosen by the government for their probity and good character. But making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. Here, then, is a double security; and it will readily be perceived, that this complicated agency tends to preserve the purity of both institutions. By increasing the obstacles to success, it discourages attempts to seduce the integrity of either. The temptations to prostitution, which the judges might have to surmount, must certainly be much fewer, while the co-operation of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes.

    "Notwithstanding, therefore, the doubts I have expressed, as to the essentiality of trial by jury in civil suits to liberty, I admit, that it is in most cases, under proper regulations, an excellent method of determining questions of property; and that on this account alone it would be entitled to a constitutional provision in its favour, if it were possible to fix with accuracy the limits, within which it ought to be comprehended. This, however, is in its own nature an affair of much difficulty; and

638 CONSTITUTION OF THE U. STATES. [BOOK III.

the most serious doubts of its constitutionality. On that occasion the court said: "The trial by jury is justly dear to the American people. It has always
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    men, not blinded by enthusiasm, must be sensible, that in a federal government, which is a composition of societies, whose ideas and institutions in relation to the matter materially vary from each other, the difficulty must be not a little augmented. For my own part, at every near view I take of the subject I become more convinced of the reality of the obstacles, which we are authoritatively informed, prevented the insertion of a provision on thishead in the plan of the convention.

    "The great difference between the limits of the jury trial, in different states, is not generally understood. And, as it must have considerable influence on the sentence, we ought to pass upon the omission complained of, in regard to this point, an explanation of it is necessary. In this state, our judicial establishments resemble more nearly, than in any other, those of Great Britain. We have courts of common law, courts of probates, (analogous in certain matters to the spiritual courts in England,) a court of admiralty, and a court of chancery. In the courts of common law only the trial by jury prevails, and this with some exceptions. In all the others, a single judge presides, and proceeds in general, either according to the course of the canon, or civil law, without the aid of a jury. In New-Jersey there is a court of chancery, which proceeds like ours, but neither courts of admiralty, nor of probates, in the sense; in which these last are established with us. In that state, the courts of common law have the cognizance of those causes, which with us are determinable in the courts of admiralty and of probates, and of course the jury trial is more extensive in New-Jersey, than in New-York. In Pennsylvania this is perhaps still more the case; for there is no court of chancery in that state, and its common law courts have equity jurisdiction. It has a court of admiralty, but none of probates, at least on the plan of ours. Delaware has in these respects imitated Pennsylvania. Maryland approaches more nearly to New-York, as does also Virginia, except that the latter has a plurality of chancellors. North Carolina bears most affinity to Pennsylvania; South Carolina to Virginia. I believe, however, that in some of those states, which have distinct courts of admiralty, the causes depending in them are triable by juries. In Georgia there are none but common law courts, and art appeal of course lies from the verdict of one jury to another, which is called a special jury, and for which a particular mode of appointment is marked out. In Connecticut they have no distinct courts, either of chancery, or of admiralty, and their courts of probates have no jurisdiction of causes. Their common law courts have admiralty, and, to a certain extent, equity jurisdiction. In cases of importance, their gens-

CH. XXXVIII.] JUDICIARY--JURISDICTION. 639

been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy. The right to such a trial is, it is be-
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    ral assembly is the only court of chancery. In Connecticut, therefore, the trial by jury extends in practice further, than in any other state yet mentioned. Rhode-Island is, I believe, in this particular, pretty much in the situation of Connecticut. Massachusetts and New-Hampshire, in regard to the blending of law, equity, and admiralty jurisdictions, are in a similar predicament. In the four eastern states, the trial by jury not only stands upon a broader foundation, than in the other states, but it is attended with a peculiarity unknown, in its Full extent, to any of them. There is an appeal of course From one jury to another, till there have been two verdicts out of three on one side.

    "From this sketch it appears, that there is a material diversity, u well in the modification, u in the extent of the institution of' trial by jury in civil cases, in the several states; and from this fact, these obvious reflections flow; first, that no general rule could have been fixed upon by the convention, which would have corresponded with the circumstances of all the states; and, secondly, that more, or at least u much might have been hazarded, by taking the system of any one state For a standard, as by omitting a provision altogether, and leaving the matter. as has been done, to legislative regulation.

    "The propositions, which have been made for supplying the omission, have rather served to illustrate, than to obviate the difficulty of the thing. The minority of Pennsylvania have proposed this mode of expression for the purpose, 'Trial by jury shall be as heretofore;' and this, I maintain, would be inapplicable and indeterminate. The United States, in their collective capacity, are the object, to which all general provisions in the constitution must be understood to refer. Now, it is evident, that though trial by jury, with various limitations, is known in each state individually, yet in the United States, as such, it is, strictly speaking, unknown; because the present federal. government has no judiciary power whatever; end consequently there is no antecedent establishment, to which the term 'heretofore' could properly relate. It would, therefore, be destitute of precise meaning, and inoperative from its uncertainty.

    "As, on the one hand, the form of the provision would not fulfil the intent of its proposers; so, on the ether, if I apprehend that intent rightly, it would be in itself inexpedient. I presume it to be, that causes in tile federal courts should be tried by jury, if in the state where the courts sat, that mode of trial would obtain in a similar case in the state courts; that is to say, admiralty causes should be tried in Connecticut by a jury, in New-York without one. The capricious operation of so

640 CONSTITUTION OF THE U. STATES. [BOOK III.

lieved, incorporated into, and secured in every state constitution in the Union; and it is found in the constitution of Louisiana. One of the strongest objec-
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    dissimilar a method of trial in the same cases, under the same government, is of itself sufficient to indispose every well-regulated judgment towards it. Whether the cause should be tried with, or without a jury, would depend, in a great number of cases, on the accidental situation of the court and parties.

    "But this is not, in my estimation, the greatest objection. I feel a deep and deliberate conviction, that there are many cases, in which the trial by jury is an ineligible one. I think it so particularly in suits, which concern the public peace with foreign nations; that is, in most cases, where the question turns wholly on the laws of nations. Of this nature, among others, are all prize causes. Juries cannot be supposed competent to investigations, that require n thorough knowledge of the laws and usages of nations; and they will sometimes be under the influence of impressions, which will not suffer them to pay sufficient regard to those considerations of public policy, which ought to guide their inquiries. There would of course be always danger, that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. Though the true province of juries be to determine matters of fact, yet, in most cases, legal consequences are complicated with fact in such a manner, as to render a separation impracticable.

    "It will add great weight to this remark, in relation to prize causes, to mention, that the method of determining them has been thought worthy of particular regulation, in various treaties between different powers of Europe, and that, pursuant to such treaties, they arc determinable in Great Britain, in the last resort, before the king himself in his privy council, where the lect, as well as the law, undergoes a reexamination. This alone demonstrates the impolicy of inserting a fundamental provision in the constitution, which would make the state systems a standard for the national government in the article under consideration, and the danger of encumbering the government with any constitutional provisions, the propriety of which is not indisputable.

    "My convictions are equally strong, that, great advantages result from the separation of the equity from the law jurisdiction; and that the causes, which belong to the former, would be improperly committed to juries. The great and primary use of a court of equity is to give relief in extraordinary cases, which are exceptions to general rules. To unite the jurisdiction of such cases with the ordinary jurisdiction, must have a tendency to unsettle the general rules, and to subject every case that arises to a special determination; while a separation between the

CH. XXXVIII.] JUDICIARY--JURISDICTION. 641

tions, originally taken against the constitution of the United States, was the want of an express provision securing the right of trial by jury in civil cases. As
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    jurisdictions has the contrary effect of rendering one a sentinel over the other, and of keeping each within the expedient limits. Besides this, the circumstances, that constitute cases proper for courts of equity, are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. They require often such long and critical investigation, as would be impracticable to men called occasionally from their occupations, and obliged to decide, before they were permitted to return to them. The simplicity and expedition, which form the distinguishing characters of this mode of trial, require, that the matter to be decided should be reduced to some single and obvious point; while the litigations, usual in chancery, frequently comprehend long train of minute and independent particulars.

    "It is true, that the separation of the equity from the legal jurisdiction is peculiar to the English system of jurisprudence; the model, which has been followed in several of the states. But it is equally true, that the trial by jury has been unknown in every instance, in which they have been united. And the separation is essential to the preservation of that institution in its pristine purity. The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law; but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages, which may be derived from courts of chancery on the plan, upon which they are established in this state; but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode.

    "These appear to be conclusive reasons against incorporating the systems of all the states, in the formation of the national judiciary, according to what may be conjectured to have been the intent of the Pennsylvania minority. Let us now examine, how far the proposition of Massachusetts is calculated to remedy the supposed defect.

    "It is in this form: 'In civil actions between citizens of different states, every issue of fact, arising in actions at common law, may be tried by a jury, if the parties, or either of them, request it.'

    "This, at best, is a proposition confined to one description of ceases; and the inference is fair, either that the Massachusetts convention considered that, as the only class of federal causes, in which the trial by jury would be proper; or, that, if desirous of a more extensive provision, they found it impracticable to devise one, which would properly answer the end. If the first, the omission of a regulation, respecting so partial an object, can never be considered. as a material imperfection in the

642 CONSTITUTION OF THE U. STATES. [BOOK III.

soon as the constitution Was adopted, this right was secured by the seventh amendment of the constitution proposed by congress; which received an as-
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    system. If the last, it affords a strong corroboration of the extreme difficulty of the thing.

    "But this is not all. If we advert to the observations already made respecting the courts, that subsist in the several states of the Unions and the different powers exercised by them it will appear, that there ere no expressions more vague and indeterminate, than those which have been employed to characterize that species of causes, which it is intended shall be entitled to a trial by jury. In this state, the boundaries between actions at common law, and actions of equitable jurisdiction, are ascertained in conformity to the rules, which prevail in England upon that subject. In many of the other states, the boundaries are less precise. In some of them every cause is to be tried in a court of common law; and upon that foundation every action may be considered, as an action at common law, to be determined by a jury, if the parties, or either of them, choose it. Hence, the same irregularity and confusion would be introduced by a compliance with this proposition, that I have already noticed, as resulting from the regulation proposed by the Pennsylvania minority. In one state a cause would receive its determination from a jury, if the parties, or either of them, requested it; but in another state, a cause exactly similar to the other must be decided without the intervention of a jury, because the state tribunals varied, as to common law jurisdiction.

    "It is obvious, therefore, that the Massachusetts proposition cannot operate, as a general regulation, until some uniform plan, with respect to the limits of common law and equitable jurisdictions, shall be adopted by the different states. To devise a plan of that kind is a task arduous in itself, and which it would require much time and reflection to mature. It would be extremely difficult, if not impossible, to suggest any general regulation, that would, be acceptable to all the states in the Union, or that would perfectly quadrate with the several state institutions.

    "It may be asked, why could not a reference have been made to the constitution of this state, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer, that it is not very probable the other states should entertain the same opinion of our institutions, which we do ourselves. It is natural to suppose, that they are more attached to their own, and that each would struggle for tim preference. If the plan of taking one state, as a model for the whole, had been thought of in the convention, it is to be presumed, that the adoption of it in that body would have been rendered difficult by the predilection of each representation in favour of its own government; and it must be uncertain, which of the states would have been taken,

CH. XXXVIII.] JUDICIARY--JURISDICTION. 643

sent of the people so general, as to establish its importance, as a fundamental guarantee of the rights and liberties of the people. This amendment de-
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    as the model. It has been shown, that many of them would be improper ones. And I leave it to conjecture, whether, under all circumstances, it is most likely, that New York, or some other state, would have been preferred. But admit, that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other states, at the partiality, which had been shown to the institutions of one. The enemies of the plan would have been furnished with a fine pretext for raising a host of local prejudices against it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment.

    "To avoid tile embarrassments of a definition of the cases, which the trial by jury ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. For this, I believe, no precedent is to be found in any member of the Union; and the considerations, which have been stated in discussing the proposition of the minority of Pennsylvania, must satisfy every sober mind, that the establishment of the trial by jury in all eases would have been an unpardonable error in the plan.

    "In short, the more it is considered, the more arduous will appear the task of fashioning a provision in such a form, as not to express too little to answer the purpose, or too much to be advisable; or which might not have opened other sources of opposition to the great and essential object of introducing a firm national government.

    "I cannot but persuade myself, on the other hand, that the different lights, in which the subject has been placed in the course of these observations, will go far towards removing in candid minds the apprehensions they may have entertained on the point. They have tended to show, that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in tile plan of the convention; that, even in far the greatest proportion of civil cases, those, in which the great body of the community is interested, that mode of trial will remain in full force, as established in the state constitutions, untouched and unaffected by the plan of the convention; that it is in no case abolished by that plan; and that there are great, if not insurmountable difficulties in the way of making any precise and proper provision for it, in the constitution for the United States.

    "The heat judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit, that the changes, which are continually hap-

644 CONSTITUTION OF THE U. STATES. [BOOK III.

clares, that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact, once tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the
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    pening in the affairs of society, may render a different mode of determining questions of property preferable in many cases, in which that mode of trial now prevails. For my own part, I acknowledge myself to be convinced, that even in this state it might be advantageously extended to some cases, to which it does not at present apply, and might as advantageously be abridged in others. It is conceded by all reasonable men, that it ought not to obtain in all cases. The examples of innovations, which contract its ancient limits, as well in these states, as in Great Britain, afford a strong presumption, that its former extent has been found inconvenient; and give room to suppose, that future experience may discover the propriety and utility of other exceptions. I suspect it to be impossible in the nature of the thing to fix the salutary point, at which the operation of the institution ought to stop; and this is with me a strong argument for leaving the matter to the discretion of the legislature.

    "This is now clearly understood to be the case in Great Britain, and it is equally so in the state of Connecticut. And yet it may be safely affirmed, that more numerous encroachments have been made upon the trial by jury in this state since the revolution, though provided for by a positive article of our constitution, than has happened in the same time either in Connecticut, or Great Britain. It may be added, that these encroachments have generally originated with the men, who endeavour to persuade the people, they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favourite career. The truth is, that the general genius of a government is all, that can be substantially relied upon for permanent effects. Particular provisions, though not altogether useless, have far less virtue and efficacy, than are commonly ascribed to them; and the want of them will never be with men of sound discernment a decisive objection to any plan, which exhibits the leading characters of a good government.

    "It certainly sounds not a little harsh and extraordinary to affirm, that there is no security for liberty in a constitution, which expressly establishes a trial by jury in criminal cases, because it does not do it in civil also; while it is a notorious fact, that Connecticut, which has been always regarded, as the most popular state in the Union, can boast of no constitutional provision for either."

      The Federalist, No. 83.
      See also 2 Elliot's Debates, 346, 380 to 410; Id. 413 to 427; 3 Elliot's Debates, 131, 132, 137, 141, 153; Id. 283, 284, 301, 302.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 645

rules of the common law." At this time there were no states in the Union, the basis of whose jurisprudence was not essentially that of the common law in its widest meaning; and probably no states were contemplated, in which it would not exist. The phrase, 'common law,' found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence. The constitution had declared, in the third article, 'that the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority,' &c., and 'to all cases of admiralty and maritime jurisdiction.' It is well known, that in civil causes, in courts of equity and admiralty, juries do not intervene; and that courts of equity use the trial by jury only in extraordinary cases to inform the conscience of the court. When, therefore, we find, that the amendment requires, that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that this distinction was present to the minds of the framers of the amendment. By common law they meant, what the constitution denominated in the third article 'law;' not merely suits, which the common law recognized among its old and settled proceedings, but suits, in which legal rights were to be ascertained and determined, in contradistinction to those, in which equitable rights alone were recognized, and equitable remedies were administered; or in which, as in the admiralty, a mixture of public law, and of maritime law and equity, was often found in the same suit. Probably there were few, if any, states in the Union, in which some new legal remedies differing from the old common law forms were not in use; but in which, however, the

646 CONSTITUTION OF THE U. STATES. [BOOK III.

trial by jury intervened, and the general regulations in other respects were according to the course of the common law. Proceedings in cases of partition, and of foreign and domestic attachment, might be cited, as examples variously adopted, and modified. In a just sense, the amendment then may well be construed to embrace all suits, which are not of equity and admiralty jurisdiction, whatever may be the peculiar form, which they may assume to settle legal rights. And congress seem to have acted with reference to this exposition in the judiciary act of 1789, ch. 20, (which was contemporaneous with the proposal of this amendment;) for in the ninth section it is provided, that 'the trial of issues in fact in the district courts in all causes, except civil causes of admiralty and maritime jurisdiction, shall be by jury;' and in the twelfth section it is provided, that 'the trial of issues in fact in the circuit courts shall in all suits, except those of equity, and of admiralty and maritime jurisdiction, be by jury.' And again, in the thirteenth section, it is provided, that 'the trial of issues in fact in the supreme court, in all actions at law against citizens of the United States, shall be by jury.'

1764. "But the other clause of the amendment is still more important; and we read it, as a substantial and independent clause. 'No fact tried by a jury shall be otherwise re-examinable, in any court of the United States, than according to the rules of the common law.' This is a prohibition to the courts of the United States to re-examine any facts tried by a jury in any other manner. The only modes, known to the common law, to re-examine such facts, are the granting of a new trial by the court, where the issue was tried, or to which the record was properly returnable; or the

CH. XXXVIII.] JUDICIARY--JURISDICTION. 647

award of a venire facias de nove by an appellate court, for some error of law, which intervened in the proceedings. The judiciary act of 1789, ch. 20, sec. 17, has given to all the courts of the United States 'power to grant new trials in cases, where there has been a trial by jury, for reasons, for which new trials have usually been granted in the courts of law.' Andthe appellate jurisdiction has also been amply given by the same act (sec. 22, 24) to this court, to redress errors of law; and for such errors to award a new trial 'in suits at law, which have been tried by a jury.

1765. "Was it the intention of congress, by the general language of the act of 1824, to alter the appellate jurisdiction of this court, and to confer on it the power of granting a new trial by a re-examination of the facts tried by the jury? to enable it, after trial by jury, to do that in respect to the courts of the United States, sitting in Louisiana, which is denied to such courts, sitting in all the other states in the Union? We think not. No general words, purporting only to regulate the practice of a particular court, to conform its modes of proceeding to those prescribed by the state to its own courts, ought, in our judgment, to receive an interpretation, which would create so important an alteration in the laws of the United States, securing the trial by jury. Especially ought it not to receive such an interpretation, when there is a power given to the inferior court itself to prevent any discrepancy between the state laws, and the laws of the United States; so that it would be left to its sole discretion to supersede, or to give conclusive effect in the appellate court to the verdict of the jury.

1766. "If, indeed, the construction contended for at the bar were to be given to the act of congress, we

648 CONSTITUTION OF THE U. STATES. [BOOK III.

entertain the most serious doubts, whether it would not be unconstitutional. No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it, which should involve a violation, however unintentional, of the constitution. The terms of the present act may well be satisfied by limiting its operation to modes of practice and proceeding in the court below, without changing the effect or conclusiveness of the verdict of the jury upon the facts litigated at the trial. Nor is there any inconvenience from this construction; for the party has still his remedy, by bill of exceptions, to bring the facts in review before the appellate court, l so far as those facts bear upon any question of law arising at the trial; and if there be any mistake of the facts, the court below is competent to redress it, by granting a new trial."1

1767. The appellate jurisdiction is to be "with such exceptions, and under such regulations, as the congress shall prescribe." But, here, a question is presented upon the construction of the constitution, whether the appellate jurisdiction attaches to the Supreme Court, subject to be withdrawn and modified by congress; or, whether an act of congress is necessary to confer the jurisdiction upon the court. If the former be the true construction, then the entire appellate jurisdiction, if congress should make no exceptions or regulations, would attach proprio vigore to the Supreme Court. If the latter, then, notwithstanding the imperative language of the constitution, the Supreme Court is lifeless, until congress have conferred power on it. And if congress may confer power, they may repeal it. So that the whole efficiency of the judicial power is left by the constitution wholly unprotected and inert, if congress shall refrain to act. There is certainly very
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    1 Parsons v. Bedford, 3 Peters's R. 446 to 449.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 649

strong grounds to maintain, that the language of the constitution meant to confer the appellate jurisdiction absolutely on the Supreme Court, independent of any action by congress; and to require this action to divest or regulate it. The language, as to the original jurisdiction of the Supreme Court, admits of no doubt. It confers it without any action of congress. Why should not the same language, as to the appellate jurisdiction, have the same interpretation? It leaves the power of congress complete to make exceptions and regulations; but it leaves nothing to their inaction. This construction was asserted in argument at an earlier period 'of the constitution.1 It was at that time denied; and it was held by the Supreme Court, that, if congress should provide no rule to regulate the proceedings of the Supreme Court, it could not exercise any appellate jurisdiction.2 That doctrine, however, has, upon more mature deliberation, been since overturned; and it has been asserted by the Supreme Court, that, if the judicial act (of 1789) had created the Supreme Court, without defining, or limiting its jurisdiction, it must have been considered, as possessing all the jurisdiction, which the constitution assigns to it. The legislature could have exercised the power possessed by it of creating a Supreme Court, as ordained by the constitution; and, in omitting to exercise the right of excepting from its constitutional powers, would have necessarily left those constitutional powers undiminished. The appellate powers of the Supreme Court are not given by the judicial act (of 1789). They are given by
_________________________

    1 Chisholm v. Georgia, 2 Dall. 419, and Iredell J.'s Opinion, p. 432; S. C. 2 Peters's Cond. R. 635, 638.
    2 Wiscast v. Dauchy, 3 Dall. 321, 326; S.C. 1 Peters's Cond. R. 144, 146.

650 CONSTITUTION OF THE U. STATES. [BOOK III.

the constitution. But they are limited, and regulated by that act, and other acts on the same subject.1 And where a rule is provided, all persons will agree, that it cannot be departed from.

1768. It should be added, that, while the jurisdiction of the courts of the United States is almost wholly under the control of the regulating power of congress, there are certain incidental powers, which are supposed to attach to them, in common with all other courts, when duly organized, without any positive enactment of the legislature. Such are the power of the courts over their own officers, and the power to protect them and their members from being disturbed in the exercise of their functions.2

1769. Although the judicial department under the constitution would, from the exposition, which has thus been made of its general powers and functions, seem above all reasonable objections, it was assailed with uncommon ardour and pertinacity in the state conventions, as dangerous to the liberties of the people, and the rights of the states; as unlimited in its extent, and undefined in its objects; as in some portions of its jurisdiction wholly unnecessary, and in others vitally defective. In short, the objections were of the most opposite characters; and, if yielded to, would have left it without a shadow of power, or efficiency.3
_______________________________________

    1 Durousseau v. United States, 6 Cranch, 307, 313, 314; United States v. Moore, 3 Cranch, 159, 170, 172.
    2 Ex parte Bollman, 4 Cranch, 75; Ex parte Kearney, 7 Wheat. R. 38, 44; Anderson v. Dunn, 6 Wheat. R. 204.
    3 See 2 Elliot's Debates, 380 to 427; 1 Elliot's Debates, 119 to 122; 3 Elliot's Debates, 125 to 145; 2 Amer. Museum, 422, 429, 435; 3 Amer. Museum, 62, 72; Id. 419, 420; Id. 534, 540, 540.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 651

1770. The Federalist has concluded its remarks on the judicial department in the following manner: "The amount of the observations hitherto made on the authority of the judicial department is this:-That it has been carefully restricted to those causes, which are manifestly proper for the cognizance of the national judicature; that, in the partition of this authority, a very small portion of original jurisdiction has been reserved to the Supreme Court, and the rest consigned to the subordinate tribunals; that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all the cases referred to them, but subject to any exceptions and regulations, which may be thought advisable; that this appellate jurisdiction does, in no case, abolish the trial by jury; and that an ordinary degree of prudence and integrity in the national councils, will ensure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences, which have been predicted from that source.1

1771. The functions of the judges of the courts of the United States are strictly and exclusively judicial. They cannot, therefore, be called upon to advise the president in any executive measures; or to give extrajudicial interpretations of law; or to act, as commissioners in cases of pensions, or other like proceedings.2
________________________________________

    1 The Federalist, No. 81. See on the Judiciary the Journal of Convention, p. 98, 99, 100, 188, 189, 295, 301.
    2 5 Marshall's Life of Washington, ch. 6, p. 433, 441; Sergeant on Const. ch. 29, p. 363, (2 edit. ch. 31, p. 375); Marbury v. Madison, 1 Cranch, 171; Dewhurst v. Coulthart, 3 Dall. R. 409; Hayburn's Case, 2 Dall. It. 409, 410, and note Ibid., and p. 411; Sergeant on Const. ch. 33 p. 391, (ch. 34, p. 401, 2d edition.)

652 CONSTITUTION OF THE U. STATES. [BOOK III.

1772. The next clause of the first section of the third article is: "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state, where such crimes shall have been committed. But when not committed within any state, the trial shall be at such place or places, as the congress may by law have directed."

1773. It seems hardly necessary in this place to expatiate upon the antiquity, or importance of the trial by jury in criminal cases. It was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties, and watched with an unceasing jealousy and solicitude. The right constitutes the fundamental articles of Magna Charta,1 in which it is declared, "nullus homo capiatur, nee imprtsonetur, aut exulet, aut aliquo modo destruatur, &c.; nisi per legale judicium parium suorum, vel per legera terrce;" no man shall be arrested, nor imprisoned, nor banished, nor deprived of life, &c. but by the judgment of his peers, or by the law of the land. The judgment of his peers here alluded to, and commonly called in the quaint language of former times a trial per pais, or trial by the country, is the trial by a jury, who are called the peers of the party accused, being of the like condition and equality in the state. When our more immediate ancestors removed to America, they brought this great privilege with them, as their birth-right and inheritance, as a part of that admirable common law, which had fenced round, and interposed barriers on every side against the ap-
__________________________

    1 Magna Charta, ch. 29, (9 Henry 3d); 2 Inst. 45; 3 Black. Comm. 349; 4 Black. Comm. 349.

CH. XXXVIII.] JUDICIARY--TRIAL BY JURY. 653

proaches of arbitrary power.1 It is now incorporated into all our state constitutions, as a fundamental right; and the constitution of the United States would have been justly obnoxious to the most conclusive objection, if it had not recognised, and confirmed it in the most solemn terms.

1774. The great object of a trial by jury in criminal cases is, to guard against a spirit of oppression and tyranny on the part of rulers, and against a spirit of violence and vindictiveness on the part of the people. Indeed, it is often more important to guard against the latter, than the former. The sympathies of all mankind are enlisted against the revenge and fury of a single despot; and every attempt will be made to screen his victims. But how difficult is it to escape from the vengeance of an indignant people, roused into hatred by unfounded calumnies, or stimulated to cruelty by bitter political enmities, or unmeasured jealousies? The appeal for safety can, under such circumstances, scarcely be made by innocence in any other manner, than by the severe control of courts of justice, and by the firm and impartial verdict of a jury sworn to do right, and guided solely by legal evidence and a sense of duty. In such a course there is a double security against the prejudices of judges, who may partake of the wishes and opinions of the government, and against the passions of the multitude, who may demand their victim with a clamorous precipitancy. So long, indeed, as this palladium remains sacred and inviolable, the liberties of a free government cannot wholly fall.2 But to give it real efficiency, it must be
____________________________

    1 2 Kent's Comm. Lect. 24, p. 1 to 9, (2d edition, p. l to 12); 3 Elliot's Debates, 331, 399.
    2 4 Black. Comm 349, 350.

654 CONSTITUTION OF THE U. STATES. [BOOK III.

preserved in its purity and dignity; and not, with a view to slight inconveniences, or imaginary burthens, be put into the hands of those, who are incapable of estimating its worth, or are too inert, or too ignorant, or too imbecile, to wield its potent armour. Mr. Justice Blackstone, with the warmth and pride becoming an Englishman living under its blessed protection, has said: A celebrated French writer, who concludes, that because Rome, Sparta, and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected, that Rome, Sparta, and Carthage, at the time, when their liberties were lost, were strangers to the trial by jury."1

1775. It is observable, that the trial of all crimes is not only to be by jury, but to be held in the state, where they are committed. The object of this clause is to secure the party accused from being dragged to a trial in some distant state, away from his friends, and witnesses, and neighbourhood; and thus to be subjected to the verdict of mere strangers, who may feel no common sympathy, or who may even cherish animosities, or prejudices against him. Besides this; a trial in a distant state or territory might subject the party to the most oppressive expenses, or perhaps even to the inability of procuring the proper witnesses to establish his innocence. There is little danger, indeed, that con-
______________________________

    1 3 Black. Comm. 379. See also Id. 381. -- I commend to the diligent perusal of every scholar, and every legislator, the noble eulogium of Mr. Justice Blackstone on the trial by jury. It is one of the most beautiful, as well as most forcible, expositions of that classical jurist. See 3 Black. Comm. 879, 380, 381; 4 Black. Comm. 349, 350. See also De Lolme, B. 1, ch. 13, B. 2, ch. 16. Dr. Paley's chapter on the administration of justice is not the least valuable part of his work on Moral philosophy. See B. 6, ch. 8. See also a Wilson's Law Lect. P. 2, ch. 6, p. 305, &c.

CH. XXXVIII.] JUDICIARY--TRIAL BY JURY. 655

gress would ever exert their power in such an oppressive, and unjustifiable a manner.1 But upon a subject, so vital to the security of the citizen, it was fit to leave as little as possible to mere discretion. By the common law, the trial of all crimes is required to be in the county, where they are committed. Nay, it originally carried its jealousy still farther, and required, that the jury itself should come from the vicinage of the place, where the crime was alleged to be committed.2 This was certainly a precaution, which, however justifiable in an early and barbarous state of society, is little commendable in its more advanced stages. It has been justly remarked, that in such cases to summon a jury, labouring under local prejudices, is laying a snare for their consciences; and though they should have virtue and vigour of mind sufficient to keep them upright, the parties will grow suspicious, and indulge other doubts of the impartiality of the trial.3 It was doubtless by analogy to this rule of the common law, that all criminal trials are required to be in the state, where committed. But as crimes may be committed on the high seas, and elsewere, out of the territorial jurisdiction of a state, it was indispensable, that, in such cases, congress should be enabled to provide the place of trial.

1776. But, although this provision of a trial by jury in criminal cases is thus constitutionally preserved to all citizens, the jealousies and alarms of the opponents of the constitution were not quieted. They insisted, that a bill of rights was indispensable upon other subjects, and that upon this, farther auxiliary
_____________________

    1 See 2 Elliot's Debates, 399, 400, 407, 420.
    2 2 Hale, P.C. ch. 24, p. 260, 264; Hawk, P.C., B. 2, ch. 25, 34; 4 Black. Comm. 305.
    3 3 Black. Comm. 383.

656 CONSTITUTION OF THE U. STATES. [BOOK III.

rights ought to have been secured.1 These objections found their way into the state conventions, end were urged with great zeal against the constitution. They did not, however, prevent the adoption of that instrument. But they produced such a strong effect upon the public mind, that congress, immediately after their first meeting, proposed certain amendments, embracing all the suggestions, which appeared of most force; and these amendments were ratified by the several states, and are now become a part of the constitution. They are contained in the fifth and sixth articles of the amendments, and are as follows:

"No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war, or public danger: nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district, wherein the crime shall have been committed; which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining wit-
___________________________

    1 See 2 Elliot's Debates, 331, 380 to 427; 1 Elliot's Debates, 119, 120, 121, 122; 3 Elliot's Debates, 139, 140, 149, 153, 300.

CH. XXXVIII.] JUDICIARY--TRIAL BY JURY. 657

nesses in his favour; and to have the assistance of counsel for his defence."

1777. Upon the main provisions of these articles a few remarks only will be made, since they are almost self-evident, and can require few illustrations to establish their utility and importance.

1778. The first clause requires the interposition of a grand jury, by way of presentment or indictment, before the party accused can be required to answer to any capital and infamous crime, charged against him. And this is regularly true at the common law of all offences, above the grade of common misdemeanors. A grand jury, it is well known, are selected in the manner prescribed by law, and duly sworn to make inquiry, and present all offences committed against the authority of the state government, within the body of the county, for which they are impannelled. In the national courts, they are sworn to inquire, and present all offences committed against the authority of the national government within the state or district, for which they are impannelled, or elsewhere within the jurisdiction of the national government. The grand jury may consist of any number, not less than twelve, nor more than twenty-three; and twelve at least must concur in every accusation.1 They sit in secret, and examine the evidence laid before them by themselves. A presentment, properly speaking, is an accusation made ex mero motu by a grand jury of an offence upon their own observation and knowledge, or upon evidence before them, and without any bill of indictment laid before them at the suit of the government. An indictment is a written accusation of an offence
__________________________

    1 4 Black. Comm. 302, 306.

658 CONSTITUTION OF THE U. STATES. [BOOK III.

preferred to, and presented, upon oath, as true, by a grand jury at the suit of the government. Upon a presentment the proper officer of the court must frame an indictment, before the party accused can be put to answer it.1 But an indictment is usually in the first instance framed by the officers of the government, and laid before the grand jury. When the grand jury have heard the evidence, if they are of opinion, that the indictment is groundless, or not supported by evidence, they used formerly to endorse on the back of the bill, "ignoramus," or we know nothing of it, Whence the bill was said to be ignored. But now they assert in plain English, "not a true bill," or which is a better way, "not found;" and then the party is entitled to be discharged, if in custody, without farther answer. But a fresh bill may be preferred against him by another grand jury. If the grand jury are satisfied of the truth of the accusation, then they write on the back. of the bill, "a true bill," (or anciently, "billa vera.") The bill is then said to be found, and is publicly returned into court; the party stands indicted, and may then be required to answer the matters charged against him.2

1779. From this summary statement it is obvious, that the grand jury perform most important public functions; and are a great security to the citizens against vindictive prosecutions, either by the government, or by political partisans, or by private enemies. Nor is this all;3 the indictment must charge the time, and place, and nature, and circumstances, of the offence, with clearness and certainty; so that the party
_________________________________

    1 4 Black. Comm, 301,302.
    2 4 Black. Comm. 305, 306.
    3 See 1 Tuck. Black. Comm. App. 304, 305; Rawle on Const. ch. 10, p. 132.

CH. XXXVIII.] JUDICIARY--TRIAL BY JURY. 659

may have full notice of the charge, and be able to make his defence with all reasonable knowledge and ability.

1780. There is another mode of prosecution, which exists by the common law in regard to misdemeanors; though these also are ordinarily prosecuted upon indictments found by a grand jury. The mode, here spoken of, is by an information, usually at the suit of the government or its officers. An information generally differs in nothing from an indictment in its form and substance, except that it is filed at the mere. discretion of the proper law officer of the government ex officio, without the intervention or approval of a grand jury.1 This process is rarely recurred to in America; and it has never yet been formally put into operation by any positive authority of congress, under the national government, in mere cases of misdemeanor; though common enough in civil prosecutions for penalties and forfeitures.

1781. Another clause declares, that no person shall be subject, "for the same offence, to be twice put "in jeopardy of life and limb." This, again, is another great privilege secured by the common law.2 The meaning of it is, that a party shall not be tried a second time for the same offence, after he has once been convicted, or acquitted of the offence charged, by the verdict of a jury, and judgment has passed thereon for or against him. But it does not mean, that he shall not be tried for the offence a second time, if the jury have been discharged without giving any verdict; or, if, having given a verdict, judgment has been arrested upon it, or a new trial has been granted in his favour;
________________________________

    1 4 Black. Comm. 308, 309.
    2 Hawk. P.C., B. 2, ch. 35; 4 Black. Comm. 335.

660 CONSTITUTION OF THE U. STATES. [BOOK III.

for, in such a case, his life or limb cannot judicially be said to have been put in jeopardy.1

1782. The next clause prohibits any person from being compelled, in any criminal case, to be a witness against himself, or being deprived of life, liberty, or property, without due process of law. This also is but an affirmance of a common law privilege. But it is of inestimable value. It is well known, that in some countries, not only are criminals compelled to give evidence against themselves, but are subjected to the rack or torture in order to procure a confession of guilt. And what is worse, it has been (as if in mockery or scorn) attempted to excuse, or justify it, upon the score of mercy and humanity to the accused. It has been contrived, (it is pretended,) that innocence should manifest itself by a stout resistance, or guilt by a plain confession; as if a man's innocence were to be tried by the hardness of his constitution, and his guilt by the sensibility of his nerves.2 Cicero, many ages ago,3 though he lived in a state, wherein it was usual to put slaves to the torture, in order to furnish evidence, has denounced the absurdity and wickedness of the measure in terms of glowing eloquence, as striking, as they are brief. They are conceived in the spirit of Tacitus, and breathe all his pregnant and indignant sarcasm.4 Ulpian, also, at a still later period in Roman jurisprudence, stamped the practice with severe reproof.5
_________________________________________

    1 See United States v. Haskell, 4 Wash. Cir. R. 402, 410; United States v. Perez, 9 Wheat. R. 579; Hawk. P.C., B. 2, ch. 35, 8; 1 Tuck. Black. Comm. App. 305; Rawle on the Constitution, ch. 10,p. 132, 133.
    2 4 Black. Comm. 326; 3 Wilson's Law Lect. 154 to 159.
    3 Cicero, Pro Sulla, 28.
    4 Mr. Justice Blackstone quotes them in 4 Black. Comm. 326; 1 Tuck. Black. Comm. App. 304, 305; Ratherforth, Inst. B. 1, ch. 18, 5.
    5 See 3 Wilson's Law Lect. 158; 1 Gilb. Hist. 249.

CH. XXXVIII.] JUDICIARY--TRIAL BY JURY. 661

1783. The other part of the clause is but an enlargement of the language of magna charta, "nec super eum ibimus, nec super eum mittimus, nisi per legale judicium parium suorum, vet per legem terrae," neither will we pass upon him, or condemn him,but by the lawful judgment of his peers, or by the law of the land. Lord Coke says, that these latter words, per legem terrae (by the law of the land,) mean by due process of law, that is, without due presentment or indictment, and being brought in to answer thereto by due process of the common law.1 So that this clause in effect affirms the right of trial according to the process and proceedings of the common law.2

1784. The concluding clause is, that private property shall not be taken for public use without just compensation. This is an affirmance of a great doctrine established by the common law for the protection of private property.3 It is founded in natural equity, and is laid down by jurists as a principle of universal law.4 Indeed, in a free government, almost all other rights would become utterly worthless, if the government possessed an uncontrollable power over the private fortune of every citizen. One of the fundamental objects of every good government must be the due administration of justice; and how vain it would be to speak of such an administration, when all property is subject to the will or caprice of the legislature, and the rulers.5
_____________________________________

    1 2 Inst. 50, 51; 2 Kent's Comm. Lect. 24, p. 10, (2d edit. p. 13); Cave's English Liberties, p. 19; 1 Tucker's Black. Comm. App. 304, 305.
    2 Ibid.
    3 1 Black. Comm. 138. 139.
    4 2 Kent's Comm. Lect. 24, p. 275, 276, (2d. edit. p. 339, 340); 3 Wilson's Law Lect. 203; Ware v. Hylton, 3 Dall. R. 194, 235; S.C. 1 Peters's Cond. R. 99, 111; 1 Black. Comm. 138,139, 140.
    5 See I Tuck. Black. Comm. App. 305, 306; Rawle on Const. ch. 10,p. 133. See also Van Horne v. Dorrance, 2 Dall. 384.

662 CONSTITUTION OF THE U. STATES. [BOOK Ill.

1785. The other article, in declaring, that the accused shall enjoy the right to a speedy and public trial by an impartial jury or the state or district, wherein the crime shall have been committed, (which district shall be previously ascertained by law,) and to be informed of the nature and cause of the accusation, and to be confronted with the witnesses against him, does but follow out the established course of the common law in all trials for crimes. The trial is always public; the witnesses are sworn, and give in their testimony (at least in capital cases) in the presence of the accused; the nature and cause of the accusation is accurately laid down in the indictment; and the trial is at once speedy, impartial, and in the district of the offence.1 Without in any measure impug ning the propriety of these provisions, it may be suggested, that there seems to have been an undue solicitude to introduce into the constitution some of the general guards and proceedings of the common law in criminal trials, (truly admirable in themselves) without sufficiently adverting to the consideration, that unless the whole system is incorporated, and especially the law of evidence, a corrupt legislature, or a debased and servile people, may render the whole little more, than a solemn pageantry. If, on the other hand, the people are enlightened, and honest; and zealous in defence of their rights and liberties, it will be impossible to surprise them into a surrender of a single valuable appendage of the trial by jury.2

1786. The remaining clauses are of more direct significance, and necessity. The accused is entitled to
_______________________

    1 See 4 Black. Comm. ch. 23 to ch. 28; Hawkins, P.C., B. 2, ch. 46, 1; 1 Tuck. Black. Comm. App. 304, 305.
    2 See Rawle on Const. ch. 10, p. 228, 129.

CH. XXXVIII.] JUDICIARY--TRIAL BY JURY. 663

have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel. A very short review of the state of the common law, on these points, will put their propriety beyond question. In the first place, it was an anciently and commonly received practice, derived from the civil law, and which Mr. Justice Blackstone says,1 in his day, still obtained in France, though since the revolution it has been swept away, not to suffer the party accused in capital cases to exculpate himself by the testimony of any witnesses. Of this practice the courts grew so heartily ashamed from its unreasonable and oppressive character, that another practice was gradually introduced, of examining witnesses for the accused, but not Upon oath; the consequence of which was, that the jury gave less credit to this latter evidence, than to that produced by the government. Sir Edward Coke denounced the practice as tyrannical and unjust; and denied, that, in criminal cases, the party accused was not to have witnesses sworn for him. The house of commons, soon after the accession of the house of Stuart to the throne of England, insisted, in a particular bill then pending, and, against the efforts both of the crown and the house of lords, caused a clause affirming the right, in cases tried under that act, of witnesses being sworn for, as well as against, the accused. By the statute of 7 Will. 3, ch. 3, the same measure of justice was established throughout the realm, in cases of treason; and afterwards, in the reign of Queen Anne, the like rule was extended to all cases of treason and felony.2 The right seems never to have been doubted, or denied, in cases of mere mis-
___________________________

    1 4 Black. Comm. 359; Rawle on Const. ch. 10, p. 128, 129.
    2 4 Black. Comm. 359, 360; 3 Wilson's Law Lect. 170, 171; Hawk. P.C. ch. 46, 160; 2 Hale P. C.283.

664 CONSTITUTION OF THE U. STATES. [BOOK III.

demeanors.1 For what causes, and upon what grounds this distinction was maintained, or even excused, it is impossible to assign any satisfactory, or even plausible reasoning.2 Surely, a man's life must be of infinitely more value, than any subordinate punishment; and if he might protect himself against the latter by proofs of his innocence, there would seem to be irresistible reasons for permitting him to do the same in capital offences.3 The common suggestion has been, that in capital cases no man could, or rather ought, to be convicted, unless upon evidence so conclusive and satisfactory, as to be above contradiction or doubt. But who can say, whether it be in any case so high, until all the proofs in favour, as well as against, the party have been heard? Witnesses for the government may swear falsely, and directly to the matter in charge; and, until opposing testimony is heard, there may not be the slightest ground to doubt its truth; and yet, when such is heard, it may be incontestible, that it is wholly unworthy of belief. The real fact seems. to be, that the pract ice was early adopted into the criminal law in capital cases, in which the crown was supposed to take a peculiar interest, in base subserviency to the wishes of the latter. It is a reproach to the criminal jurisprudence of England, which the state trials, antecedently to the revolution of 1688, but too strongly sustain. They are crimsoned with the blood of persons, who were condemned to death, not only against law, but against the clearest rules of evidence.
___________________________

    1 Hawk. P.C. ch. 46, 159; 2 Hale P.C. 283; 1 Tuck. Black. Comm. App. 305.
    2 2 Hale P.C. 283.
    3 Rawle on Const. ch. 10, p. 129, 139.

CH. XXXVIII.] JUDICIARY--TRIAL BY JURY. 665

1787. Another anomaly in the common law is, that in capital cases the prisoner is not, upon his trial upon the general issue, entitled to have counsel, unless some matter of law shall arise, proper to be debated. That is, in other words, that he shall not have the benefit of the talents and assistance of counsel in examining the witnesses, or making his defence before the jury. Mr. Justice Blackstone, with all his habitual reverence for the institutions of English jurisprudence, as they actually exist, speaks out upon this subject with the free spirit of a patriot and a jurist. This, he says, is "a rule, which, however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner, that is, shall see, that the proceedings against him are legal, and strictly regular, seems to be not all of a piece with the rest of the humane treatment of prisoners by the English law. For upon what face of reason can that assistance be denied to save the life of a man, which is yet allowed him in prosecutions for every petty trespass."1 The defect has indeed been cured in England in cases of treason;2 but it still remains unprovided for in all other cases, to, what one can hardly help deeming, the discredit of the free genius of the English constitution.

1788. The wisdom of both of these provisions is, therefore, manifest, since they make matter of constitutional right, what the common law had left in a most imperfect and questionable state.3 The right to have
____________________________

    1 4 Black. Comm. 355.-- Mr. Christian in his note on the passage has vindicated the importance of allowing counsel in a strain of manly reasoning. 4 Black. Comm. 356, note 9.
    2 4 Black. Comm. 356; 1 Tuck. Black. Comm. App. 305.
    3 3 Wilson's Law Lect. 170, 171; 1 Tuck. Black. Comm. App. 305; Rawle on Const. ch. 10, p. 128, 129.

666 CONSTITUTION OF THE U. STATES. [BOOK III.

witnesses sworn, and counsel employed for the prisoner, are scarcely less important privileges, than the right of a trial by jury. The omission of them in the constitution is a matter of surprise; and their present incorporation is matter of honest congratulation among all the friends of rational liberty.

1789. There yet remain one or two subjects connected With the judiciary, which, however, grow out of other amendments made to the constitution; and will naturally find their place in our review of that part of these Commentaries, which embraces a review of the remaining amendments.