CH. XXXVIII.] JUDICIARY--IMPORTANCE OF. 425

CHAPTER XXXVIII.

JUDICIARY -- ORGANIZATION AND POWERS.

1567. THE order of the subject next conducts us to the consideration of the third article of the constitution, which embraces the organization and powers of the judicial department.

1568. The importance of the establishment of a judicial department in the national government has been already incidentally discussed under other heads. The want of it constituted one of the vital defects of the confederation.1 And every government must, in its essence, be unsafe and unfit for a free people, where such a department does not exist, with powers co-extensive with those of the legislative department.2 Where there is no judicial department to interpret, pronounce, and execute the law, to decide controversies, and to enforce rights, the government must either perish by its own imbecility, or the other departments of government must usurp powers, for the purpose of commanding obedience, to the destruction of liberty.3 The will

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  • 1 The Federalist, No. 22; Cohen, v. Virginia, 6 Wheat. R. 388; 1 Kent's Comm. Lect. 14, p. 277.
    2 The Federalist, No. 80; 1 Kent's Comm. Lect. 14, p. 277; Cohens v. Virginia, 6 Wheat. R. 384; 2 Wilson's Law Lect. ch. 3, p. 201; 3 Elliot's Deb. 143; Osborne v. Bank of United States, 9 Wheat. R. 818, 819. -- Mr. Justice Wilson has traced out, with muchminuteness of detail, the nature and character of the judicial department in ancient, as well as modern nations, and especially in England; and a perusal of his remarks will be found full of instruction. 2 Wilson's Law Lect. ch. 3, p. 201, &c.
    3 1 Kent's Comm. Lect. 14, p. 277. -- It has been finely remarked by Mr. Chief Justice Marshall, that "the judicial department has no will.in any case. Judicial power, as contradistinguished from the power of

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

of those, who govern, will become, under such circumstances, absolute and despotic; and it is wholly immaterial, whether power is vested in a single tyrant, or in an assembly of tyrants. No remark is better founded in human experience, than that of Montesquieu, that "there is no liberty, if the judiciary power be not separated from the legislative and executive powers."1 And it is no less true, that personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice.2 If that government can be truly said to be despotic and intolerable, in which the law is vague and uncertain; it cannot but be rendered still more oppressive and more mischievous, when the actual administration of justice is dependent upon caprice, or favour, upon the will of rulers, or the influence of popularity. When power becomes right, it is of little consequence, whether decisions rest upon corruption, or weakness, upon the accidents of chance, or upon deliberate wrong. In every well organized government, therefore, with reference to the security both of public rights and private rights, it is indispensable, that there should be a judicial department to ascertain, and decide rights, to punish crimes, to administer justice, and to protect the innocent from injury and usurpation.3

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  • the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to fellow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; but always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law."*
    • 1 Montesquieu's Spirit of Laws, B. 11, ch. 13.
      2 1 Kent's Comm. Lect. 14, p. 273.
      3 Rawle on Constitution, ch. 21, p. 199.

    * Osborne v. Bank of United States, 9 Wheat. R. 806.

CH. XXXVIII.] JUDICIARY--IMPORTANCE OF. 427

1569. In the national government the power is equally as important, as in the state governments. The laws and treaties, and even the constitution, of the United States, would become a dead letter without it. Indeed, in a complicated government, like ours, where there is an assemblage of republics, combined under a common head, the necessity of some controlling judicial power, to ascertain and enforce the powers of the Union, is, if possible, still more striking. The laws of the whole would otherwise be in continual danger of being contravened by the laws of the parts.1 The national government would be reduced to a servile dependence upon the states; and the same scenes would be again acted over in solemn mockery, which began in the neglect, and ended in the ruin, of the confederation.2 Power, without adequate means to enforce it, is like a body in a state of suspended animation. For all practical purposes it is, as if its faculties were extinguished. Even if there were no danger of collision between the laws and powers of the Union, and those of the states, it is utterly impossible, that, without some superintending judiciary establishment, there could be any uniform administration, or interpretation of them. The idea of uniformity of decision by thirteen independent and co-ordinate tribunals (and the number is now advanced to twenty-four) is absolutely visionary, if not absurd. The consequence would necessarily be, that neither the constitution, nor the laws, neither the rights and powers of the Union, nor those of the states, would be the same in any two states. And there would be per-

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  • 1 The Federalist, No. 22; Chisholm v. Georgia, 2 Dall. 419, 474; ante, Vol. 1. p. 246, 247; 3 Elliot's Deb. 142.
    2 See Cohens v. Virginia, 6 Wheat. R. 384 to 390; Id. 402 to 404, 415; Osborne v. Bank of United States, 9 Wheat. R. 818, 819; ante, Vol. 1. 266, 267.

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

petual fluctuations and changes, growing out of the diversity of judgment, as well as of local institutions, interests, and habits of thought.1

1570. Two ends, then, of paramount importance, and fundamental to a free government, are proposed to be attained by the establishment of a national judiciary. The first is a due execution of the powers of the government; and the second is a uniformity in the interpretation and operation of those powers, and of the laws enacted in pursuance of them. The power of interpreting the laws involves necessarily the function to ascertain, whether they are conformable to the constitution, or not; and if not so conformable, to declare them void and inoperative. As the constitution is the supreme law of the land, in a conflict between that and the laws, either of congress, or of the states, it becomes the duty of the judiciary to follow that only, which is of paramount, obligation. This results from the very theory of a republican constitution of government; for otherwise the acts of the legislature and executive would in effect become supreme and uncontrollable, notwithstanding any prohibitions or limitations contained in the constitution; and usurpations of the most unequivocal and dangerous character might be assumed, without any remedy within the reach of the citizens.2 The people would thus be at the mercy of their rulers,

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  • 1 Martin v. Hunter, 1 Wheat. R. 304, 345 to 349; The Federalist, No. 22.
    2 The Federalist, No. 78, 80, 81, 82; 1 Tuck. Black. Comm. App. 355 to 360; 3 Elliot's Deb. 134.- This subject is very elaborately discussed in the Federalist, No. 78, from. which the following extract is made: "The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution, 1 understand one, which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no

CH. XXXVIII.] JUDICIARY--IMPORTANCE OF. 429

in the state and national governments; and an omnipotence would practically exist, like that claimed for the British Parliament. The universal sense of America

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  • ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

    "Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination, that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged, that the authority, which can declare the acts of another void, must necessarily be superior to the one; whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the grounds, on which it rests, cannot be unacceptable.

    "There is no position, which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission, under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can he valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men, acting by virtue of powers, may do, not only what their powers do not authorize, but what they forbid.

    "If it be said, that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the constitution. It is not otherwise to be supposed, that the constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as a fundamental law. It must, therefore, belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred: in other words. the constitution ought to be preferred to the statute; the intention of the people to the intention of their agents.

    "Nor does the conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes, that the power of

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

has decided, that in the last resort the judiciary must decide upon the constitutionality of the acts and laws of the general and state governments, so far as they are

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  • the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those, which are not fundamental.

    "This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing st one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation: so far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate, that this should be done: where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule, which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an equal authority, that which was the last indication of its will, should have the preference.

    "But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us, that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the constitution, it will be the duty of the judicial tribunals to adhere to the latter, and disregard the former.

    "It can be of no weight to say, that the courts, on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the.substitution of their pleasure to that of the legislative body. The observation, if it proved any thing, would prove, that there ought to be no judges distinct from that body."

    The reasoning of Mr. Chief Justice Marshall on this subject in Cohens

CH. XXXVIII.] JUDICIARY--IMPORTANCE OF. 431

cognizance of the judiciary, its judgments must be conclusive; for otherwise they may be disregarded, and the acts of the legislature and executive enjoy a secure and capable of being made the subject of judicial controversy.1 It follows, that, when they are subjected to the

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  • v. Virginia, (6 Wheat R. 384 to 390,) has been already cited at large, ante Vol. 1. p. 369 to 372. See also 6 Wheat R. 413 to 423, and the Federalist, No. 22, on the same subject.
    1 1 Kent's Comm. Lect. 20, p. 420 to 426. See also Cohens v. Virginia, 6 Wheat. R. 386 to 390. -- The reasoning of the Supreme Court in Marbury v. Madison, (1 Cranch, 137,) on this subject is so clear and convincing, that it is deemed advisable to cite it in this place, as a corrective to those loose and extraordinary doctrines, which sometimes find their way into opinions possessing official influence.

    "The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it. That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to ,their own happiness, is the basis, on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organises the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits, not to be transcended by those departments.

    "The government of the United States is of the latter description. The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons, on whom they are imposed, and if acts prohibited, and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by

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

irresistible triumph.1 To the people at large, therefore, such an institution is peculiarly valuable; and it ought to be eminently cherished by them. On its firm and inde-

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  • ordinary means, or it is on a level with Ordinary legislative acts, and like other acts, is alterable, when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.

    "Certainly all those, who have framed.written constitutions, contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitution, and is consequently to be considered by this court, as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject. If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative, as if it was a law? This would be to overthrow in fact, what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

    "It is emphatically the province and duty of the judicial department to say, what the law is. Those, who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case; so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine, which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case, to which they both apply.

    "Those, then, who controvert the principle, that the constitution is to he considered, in courts, as a paramount law, are reduced to the necessity of maintaining, that courts must close their eyes on the constitution and see only the law. This doctrine would subvert the very foundation

    1 1 Kent's Comm. Lect. 20, p. 420 to 425. See also 1 Tuck. Black. Comm. App. 354 to 357; The Federalist, No. 3, 22, 80, 82: 2 Elliot's Deb. 380.

CH. XXXVIII.] JUDICIARY--IMPORTANCE OF. 433

pendent structure they may repose with safety, while they perceive in it a faculty, which is only set in motion, when applied to; but which, when thus brought

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  • of all written constitutions. It would declare, that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do, what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath, which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring, that those limits may be passed at pleasure. That it thus reduces to nothing, what we have deemed the greatest improvement on political institutions -- a written constitution-would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.

    "The judicial power of the United States is extended to all cases, arising under the constitution. Could it be the intention of those, who gave this power, to say, that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument, under which it arises? This is too extravagant to be maintained. In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?

    "There are many other parts of the constitution, which serve to illustrate this subject. It is declared, that 'no tax or duty shall be laid on articles exported from any state.' Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law? The constitution declares, that 'no bill of attainder or ex post facto law shall be passed.' If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims, whom the constitution endeavours to preserve? 'No person,' says the constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.' Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

    "From these, and many other selectious, which might be made, it is apparent, that the framers of the constitution contemplated that instru-

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

into action, must proceed with competent power, if required to correct the error, or subdue the oppression of the other branches of the government.1 Fortunately

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  • ment, as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments for violating what they swear to support! The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words, 'I do solemnly swear, that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States.' Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

    "It is also not entirely unworthy of observation, that in declaring, what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United. States generally, but those only, which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are hound by that instrument."

    In the Virginia Convention, Mr. Patrick Henry (a most decided opponent of the Constitution of the United States) expressed a strong opinion in favour of the right of the judiciary to decide upon the constitutionality of laws. His fears were, that the national judiciary was not so organized, as that it would possess an independence sufficient for this purpose. His language was: "The honourable gentleman did our judiciary honour in saying, that they had firmness enough to counteract the legislature in some cases. Yes, sir, our judges opposed the acts of the legislature. We have this land-mark to guide us. They had fortitude to declare, that they were the judiciary, and would oppose unconstitutional acts. Are you sure, that your federal judiciary will act thus?

    1 Rawle on Const. ch. 21, p. 199; Id. ch. 30, p. 275, 276; 1 Wilson's Law Lect. 460, 461; 3 Elliot's Deb. 143; Id. 245; Id. 280.

CH. XXXVIII.] JUDICIARY--IMPORTANCE OF. 435

too for the people, the functions of the judiciary, in deciding on constitutional questions, is not one, which it is at liberty to decline. While it is bound not to take jurisdiction, if it should not, it is equally true, that it must take jurisdiction, if it should. It cannot, as the legislature may, avoid a measure, because it approaches the confines of the constitution. It cannot pass it by, because it is doubtful. With whatever doubt, with whatever difficulties a case may be attended, it must decide it, when it arises in judgment. It has no more right to decline the exercise of a jurisdiction, which is given, than to usurp that, which is not given. The one, or the other would be treason to the constitution.1

1571. The framers of the constitution, having these great principles in view, adopted two fundamental rules with entire unanimity; first, that a national judiciary ought to be established; secondly, that the national judiciary ought to possess powers co-extensive with

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  • Is that judiciary so well constituted, and so independent of the other branches, as our state judiciary? Where are your land-marks in this government? I will be bold to say, you cannot find any. I take it, as the highest encomium on this country, that the acts of the legislature, if unconstitutional, are liable to be opposed by the judiciary." 2 Elliot's Debates, 248.

    1 Cohens v. Virginia, 6 Wheat. R. 404; 1 Wilson's Law Lect. 461, 462.--Mr. Justice Johnson, in Fullerton v. Bank of United States, (1 Peters's R. 604, 614,) says, "What is the course of prudence and duty, where these cases of difficult distribution as to power and right present themselves? It is to yield rather, than to encroach. The duty is reciprocal, and will no doubt be met in the spirit of moderation and comity. In the conflicts of power and opinion, inseparable from our many peculiar relations, cases may occur, in which the maintenance of principle and the constitution, according to its innate and inseparable attributes, may require a different course; and when such cases do occur, our courts must do their duty." This is a very just admonition, when addressed to other departments of the government. But the judiciary has no authority to adopt any middle course. It is compelled, when called upon, to

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

those of the legislative department.1 Indeed, the latter necessarily flowed from the former, and was treated, and must always be treated, as an axiom of political government.2 But these provisions alone would not be sufficient to, ensure a complete administration of public justice, or to give permanency to the republic. The judiciary must be so organized, as to carry into complete effect all the purposes of its establishment. It must possess wisdom, learning, integrity, independence, and firmness. It must at once possess the power and the means to check usurpation, and enforce execution of its judgments. Mr. Burke has, with singular sagacity and pregnant brevity, stated the doctrine, which every republic should steadily sustain, and conscientiously inculcate. "Whatever," says he, "is supreme in a state ought to have, as much as possible, its judicial authority so constituted, as not only not to depend upon it, but in some sort to balance it. It ought to give security to its justice against its power. It ought to make its judicature, as it were, something exterior to the state."3 The best manner, in which this is to be accomplished, must mainly depend upon the mode of appointment, the tenure of office, the compensation of the judges, and the jurisdiction confided to the department in its various branches.

1572. Let us proceed, then, to the consideration of the judicial department, as it is established by the

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  • decide, whether a law is constitutional, or not. If it declines to declare it unconstitutional, that is an affirmance of its constitutionality. 1 Journ. of Convention, 69, 98, 121, 137, 186, 188, 189, 212; The Federalist, No. 77, 78; 2 Elliot's Debates. 380 to 394; Id. 404.
    2 Cohen, v. Virginia, 6 Wheat. R. 384; 1 Tucker's Black. Comm. App. 350; The Federalist, No. 80; 2 Elliot's Debates, 380, 390, 404; 3 Elliot's Debates, 134, 143; Osborn v. Bank of United States, 9 Wheat. R. 818, 819; 1 Kent's Comm. Lect. 14, p. 277.
    3 Burke's Reflections on the French Revolution.

CH. XXXVIII.] JUDICIARY--ORGANIZATION. 437

constitution, and see, how far adequate means are provided for all these important purposes.

1573. The first section of the third article is as follows: "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts, as the congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour; and shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office." To this may be added the clause in the enumeration of the powers of congress in the first article, (which is but a mere repetition,) that congress 'shall have power "to constitute tribunals inferior to the Supreme Court."1

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  • 1 It is manifest, that the constitution contemplated distinct appointments of the judges of the courts of the United States. The judges of the Supreme Court are expressly required to be appointed by the president, by and with the advice and consent of the senate. They are, therefore, expressly appointed for that court, and for that court only. Can they be constitutionally required to act, as judges of any other court? This question (it now appears) was presented to the minds of the judges of the Supreme Court, who were first appointed under the constitution; and the chief justice (Mr. Jay) and some of his associates were of opinion, (and so stated to President Washington, in 1790, in a letter, which will be cited below at large,) that they could not constitutionally be appointed to hold any other court. They were, however, required to perform the duty of circuit judges in the circuit courts, until the year 1801; and then a new system was established. The latter was repealed in 1802; and the judges of the Supreme Court were again required to perform duty in the circuit courts. In 1803, the point was directly made before the Supreme Court; but the court were then of opinion, that the practice and acquiescence, for such a period of years, commencing with the organization of the judicial system, had fixed the construction, and it could not then be shaken. Stuart v. Laird, (1 Cranch's R. 299, 309.) That there have, notwithstanding, been many scruples and doubts upon the subject, in the minds of the judges of the Supreme Court, since that period, is well known. See 1 Paine's Cirt. Rep.

    We here insert the letter of Mr. Chief Justice Jay and his associates,

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

1574. In the convention, which framed the constitution, no diversity of opinion existed, as to the establishment of a supreme tribunal. The proposition

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  • for which we are indebted to the editors of that excellent work, the American Jurist. It is in the number for October, 1830, (vol. 4, p. 294, &c.)

    "The representation alluded to was in answer to a letter, addressed by General Washington to the court upon its organization, which we have therefore prefixed to it.

    United Sates, April 3d, 1790.

    "'Gentlemen: I have always been persuaded, that the stability and success of the national government, and consequently the happiness of the people of the United States, would depend, in a considerable degree, on the interpretation of its laws. In my opinion, therefore, it is important, that the judiciary system should not only be independent in its operations, but as perfect, as possible, in its formation.

    "'As you are about to commence your first circuit, and many things may occur in such an unexplored field, Which it would be useful should be known, I think it proper to acquaint you, that it will be agreeable to me to receive such information and remarks on this subject, as you shall from time to time judge it expedient to make. Geo. Washington.

    "'The Chief Justice and Associate Justice. of the Supreme Court. of the United States.'

    "'Sir: We, the Chief Justice and Associate Justices of the Supreme Court of the United States, in pursuance of the letter, which you did us the honour to write, on the third of April last, take the liberty of submitting to your consideration the following remarks on the "Act to establish the Judicial Courts of the United States."

    "'It would doubtless have been singular, if a system so new and untried, and which was necessarily formed more on principles of theory, and probable expediency, than former experience, had, in practice, been found entirely free from defects.

    "'The particular and continued attention, which our official duties called upon us to pay to this act, has produced reflections, which at the time it was made and passed, did not, probably, occur in their full extent either to us or others.

    "'On comparing this act with the constitution, we perceive deviations, which, in our opinions, are important.

    "'The first section of the third article of the constitution declares, that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts, as the congress may, from time to time, ordain and establish."

CH. XXXVIII.] JUDICIARY--ORGANIZATION. 439

was unanimously adopted.1 In respect to the establishment of inferior tribunals, some diversity of opinion was in the early stages of the proceedings exhibited.

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  • "'The second section enumerates the cases, to which the judicial power shall extend. It gives to the Supreme Court original jurisdiction in only two cases, but in all the others, vests it with appellate jurisdiction; and that with such exceptions, and under such regulations, as the congress shall make.

    "'It has long and very universally been deemed essential to the due administration of justice, that some national court, or council should be instituted, or authorized to examine the acts of the ordinary tribunals, and ultimately, to affirm or reverse their judgments and decrees; it being important, that these tribunals should be confined to the limits of their respective jurisdiction, and that they should uniformly interpret and apply the law in the same sense and manner.

    "'The appellate jurisdiction of the Supreme Court enables it to confine inferior courts to their proper limits, to correct their involuntary errors, and, in general, to provide, that justice be administered accurately, impartially, and uniformly. These controlling powers were unavoidably great and extensive; and of such a nature, as to render their being combined with other judicial powers, in the same persons, unadvisable.

    "'To the natural. as well as legal incompatibility of ultimate appellate jurisdiction, with original jurisdiction, we ascribe the exclusion of the Supreme Court from the latter, except in two cases. Had it not been for this exclusion, the unalterable, ever binding decisions of this important court, would not have been secured against the influences of those predilections for individual opinions, and of those reluctances to relinquish sentiments publicly, though, perhaps, too hastily given, which insensibly and not unfrequently infuse into the minds of the most upright men, some degree of partiality for their official and public acts.

    "'Without such exclusion, no court, possessing the last resort of justice, would have acquired and preserved that public confidence, which is really necessary to render the wisest institutions useful. A celebrated writer justly observes, that "next to doing right, the great object in the administration of public justice should be to give public satisfaction."

    "'Had the constitution permitted the Supreme Court to sit in judgment, and finally to decide on the acts and errors, done and committed by its own members, as judges of inferior and subordinate courts, much room would have been left for men, on certain occasions, to suspect, that

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  • 1 Journal of Convention, 69, 98, 137, 186.

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

A proposition to establish them was at first adopted. This was struck out by the vote of five states against four, two being divided; and a proposition was then

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  • an unwillingness to be thought and found in the wrong, had produced an improper adherence to it; or that mutual interest had generated mutual civilities and tenderness injurious to right.

    "'If room had been left, for such suspicions, there would have been reason to apprehend, that the public confidence would diminish almost in proportion to the number of cases, in which the Supreme Court might affirm the acts of any of its members.

    "'Appeals are seldom made, but in doubtful cases, and in which there is, at least, much appearance of reason on both sides; in such cases, therefore, not only the losing party, hut others, not immediately interested, would sometimes be led to doubt, whether the affirmance was entirely owing to the mere preponderance of right.

    "'These, we presume, were among the reasons, which induced the convention to confine the Supreme Court, and consequently its judges, to appellate jurisdiction. We say "consequently its judges," because the reasons for the one apply also to the other.

    "'We are aware of the distinction between a court and its judges; and are far from. thinking it illegal or unconstitutional, however it may be inexpedient, to employ them for other purposes, provided the latter purposes be consistent and compatible with the former. But from this distinction it cannot, in our opinions, be inferred, that the judges of the Supreme Court may also be judges of inferior and subordinate courts, and be at the same time both the controllers and the controlled.

    "'The application of these remarks is obvious. The Circuit Courts established by the act are courts inferior and subordinate to the Supreme Court. They are vested with original jurisdiction in the cases, from which the Supreme Court is excluded; and to us it would appear very singular, if the constitution was capable of being so construed, as to exclude the court, but yet admit the judges of the court. We, for our parts, consider the constitution, as plainly opposed to the appointment of the same persons to both offices; nor have we any doubts of their legal incompatibility.

    "'Bacon, in his Abridgment, says, that" offices are said to be incompatible and inconsistent, so as to be executed by one person, when from the multiplicity of business in them, they cannot be executed with care and ability; or when their being subordinate, and interfering with each other, it induces a presumption they cannot be executed with impartiality and honesty; and this, my Lord Coke says, is of that importance, that if all offices, civil and ecclesiastical, &c. were only executed, each by different persons, it would be for the good of the commonwealth and

CH. XXXVIII.] JUDICIARY--ORGANIZATION. 441

adopted, "that the national legislature be empowered to appoint inferior tribunals," by the vote of seven states against three, one being divided;1 and ultimately this proposition received the unanimous approbation of the convention.2

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  • advancement of justice, and preferment of deserving men. If a forester, by patent for his life, is made justice in Eyre of the same forest, hac vice, the forestership is become void; for these offices are incompatible, because the forester is under lite correction of the justice in Eyre, and he cannot judge himself. Upon a mandamus to restore one to the place of town-clerk, it was returned, that he was elected mayor and sworn, and, therefore, they chose another town-clerk; and the court. were strong of opinion, that the offices were incompatible, because of the subordination. A coroner, made a sheriff, ceases to be a coroner; so a parson, made a bishop, and a judge of the Common Pleas, made a judge of the King's Bench," &c.;

    "'Other authorities on this point might be added; but the reasons, on which they rest, seem to us to require little elucidation, or support.

    "'There is in the act another deviation from the constitution, which we think it incumbent on us to mention. "'The second section of the second article of the constitution declares, that the president shall nominate, and by and with the advice and consent of the senate, "shall appoint judges of the Supreme Court, and all other officers of the United States, whose appointments are not therein otherwise provided for."

    "'The constitution not having otherwise provided for the appointment of the judges of the inferior courts, we conceive, that the appointment of some of them, viz. of the Circuit Courts, by an act of the legislature, is a departure from the constitution, and an exercise of powers, which constitutionally and exclusively belong to the president and senate.

    "'We should proceed, sir, to take notice of certain defects in the act relative to expediency, which we think merit the consideration of the congress. But, as these are doubtless among the objects of the late reference, made by the house of representatives to the attorney-general, we think it most proper to forbear making any remarks on this subject at present.

    "'We have the honour to be most respectfully,
    "'Sir, your obedient and humble servants.
    "'The President of the United States.'"

    1 Journal of Convention, 69, 98, 99, 102, 137. 2 Id. 188, 212.

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

1575. To the establishment of one court of supreme and final jurisdiction, there do not seem to have Seen any strenuous objections generally insisted on in the state conventions, though many were urged against certain portions of the jurisdiction, proposed by the constitution to be vested in the courts of the United States.1 The principal question seems to have been of a different nature, whether it ought to be a distinct coordinate department, or a branch of the legislature. And here it was remarked by the Federalist, that the same contradiction of opinion was observable among the opponents of the constitution, as in many other cases. Many of those, who objected to the senate, as a court of impeachment, upon the ground of an improper intermixture of legislative and judicial functions, were, at least by implication, advocates for the propriety of vesting the ultimate decision of all causes in the whole, or in apart of the legislative body.2

1576. The arguments, or rather suggestions, upon which this scheme was propounded, were to the following effect. The authority of the Supreme Court of the United States, as a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the constitution will enable that court to mould them into whatever shape, it may think proper; especially, as its decisions will not be in any manner subject to the revision and correction of the legislative body. This is as unprecedented, as it is dangerous. In Great Britain the judicial power in the last resort resides in the house of lords, which is a branch of the legislature. And this part of the British government has been imi-

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  • 1 See 2 Elliot's Debates, 380 to 427.
    2 The Federalist, No. 81.

CH. XXXVIII.] JUDICIARY--ORGANIZATION. 443

rated in the state constitutions in general. The parliament of Great Britain, and the legislaturesof the several states, can at any time rectify by law the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable, and remediless.1

1577. The friends of the constitution, in answer to these suggestions, replied, that they were founded in false reasoning, or a misconception of fact. In the first place, there was nothing in the plan, which directly empowered the national courts to construe the laws according to the spirit of the constitution, or which gave them any greater latitude in this respect, than what was claimed and exercised by the state courts. The constitution, indeed, ought to be the standard of construction for the laws; and wherever there was an opposition, the laws ought to give place to the constitution. But this doctrine was not deducible from any circumstance peculiar to this part of the constitution, but from the general theory of a limited constitution; and, as far as it was true, it was equally applicable to the state governments.

1578. So far as the objection went to the organization of the Supreme Court, as a distinct and independent department, it admitted of a different answer. It was founded upon the general maxim of requiring a separation of the different departments of government, as most conducive to the preservation of public liberty and private rights. It would not, indeed,

_______________________________

  • 1 The Federalist, No. 81. -- The learned reader will trace out, in subsequent periods of our history, the same objections revived, in other imposing forms under the sanction of men, who have attained high ascendancy and distinction in the struggles of party.

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

absolutely violate that maxim, to allow the ultimate appellate jurisdiction to be vested in one branch of the legislative body. But there were many urgent reasons, why the proposed organization would be preferable. It would secure greater independence, impartiality, and uniformity in the administration of justice.

1579. The reasoning of the Federalist1 on this point is so clear and satisfactory, and presents the whole argument in so condensed a form, that it supersedes all farther formal discussion. "From a body, which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit, which had operated in making them, would be too apt to influence their construction; still less could it be expected, that men, who had infringed the constitution, in the character of legislators, would be disposed to repair the breach in that of judges. Nor is this all. Every reason, which recommends the tenure of good behaviour for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men selected for the knowledge of the laws, acquired by long and laborious study, to the revision and control of men, who, for want of the same advantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications, which fit men for the stations of judges; and as, on this account, there will be great

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  • 1 The Federalist, No. 81.

CH. XXXVIII.] JUDICIARY--ORGANIZATION. 445

reason to apprehend all the ill consequences of defective information; so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear, that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides, will be too apt to stifle the voice both of law and equity.

1580. "These considerations teach us to applaud the wisdom of those states, who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those, who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New-Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia; and the preference, which has been given to these models, is highly to be commended.1

1581. "It is not true, in the second place, that the parliament of Great Britain, or the legislatures of the particular states, can rectify the exceptionable decisions of their respective courts, in any other sense, than might be done by a future legislature of the United States. The theory, neither of the British nor the state constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed constitution, more than in either of them, by which it is forbidden. In the former, as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot re-

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  • 1 At the present time the same scheme of organizing the judicial power exists substantially in every state in the Union, except in N. York.

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

verse a determination, once made, in a particular case; though. it may prescribe a new rule for future cases. This is the principle, and it applies, in all its consequences, exactly in the same manner and extent to the state governments, as to the national government, now under consideration. Not the least difference can be pointed out in any view of the subject.

1582. "It may, in the last place, be observed, that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is, in reality, a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive, as to amount to an inconvenience, or, in any sensible degree, to affect the order of the political system. This may be inferred with certainty from the general nature of the judicial power; from the objects, to which it relates; from the manner, in which it is exercised; from its comparative weakness; and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check, which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger, that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument

CH. XXXVIII.] JUDICIARY--ORGANIZATION. 447

for constituting the senate a court for the trial of impeachments.''

1583. In regard to the power of constituting inferior courts of the Union, it is evidently calculated to obviate the necessity of having recourse to the Supreme Court in every case of federal cognizance. It enables the 'national government to institute, or authorize, in each state or district of the United States, a tribunal competent to the determination of all matters of national jurisdiction within its limits. One of two courses only could be open for adoption; either to create inferior courts under the national authority, to reach all cases fit for the national jurisdiction, which either constitutionally, or conveniently, could not be of original cognizance in the Supreme Court; or to confide jurisdiction of the same cases to the state courts, with a right of appeal to the Supreme Court. To the latter course solid objections were thought to apply, which rendered it ineligible and unsatisfactory. In the first place, the judges of the state courts would be wholly irresponsible to the national government for their conduct in the administration of national justice; so, that the national government would, or might be, wholly dependent upon the good will, or sound discretion of the states, in regard to the efficiency, promptitude, and ability, with which the judicial authority of the nation was administered. In the next place, the prevalency of a local, or sectional spirit might be found to disqualify the state tribunals for a suitable discharge of national judicial functions; and the very modes of appointment of some of the state judges might render them improper channels of the judicial authority of the Union.1

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  • 1 The Federalist, No. 81. See also Cohens v. Virginia, 6 Wheat. 386, 387.

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

State judges, holding their offices during pleasure, or from year to year, or for other short periods, would, or at least might, be too little independent to be relied upon for an inflexible execution of the national laws. What could be done, where the state itself should happen to be in hostility to the national government, as might well be presumed occasionally to be the case, from local interests, party spirit, or peculiar prejudices, if the state tribunals were to be the sole depositaries of the judicial powers of the Union, in the ordinary administration of criminal, as well as of civil justice? Besides; if the state tribunals were thus entrusted with the ordinary administration of the criminal and civil justice of the Union, there would be a necessity for leaving the door of appeal as widely open, as possible. In proportion to the grounds of confidence in, or distrust of the subordinate tribunals, ought to be the facility or difficulty of appeals. An unrestrained course of appeals would be a source of much private, as well as public inconvenience. It would encourage litigation, and lead to the most oppressive expenses.1 Nor should it be omitted, that this very course of appeals would naturally lead to great jealousies, irritations, and collisions between the state courts and the Supreme Court, not only from differences of opinions, but from that pride of character, and consciousness of independence, which would be felt by state judges, possessing the confidence of their own state, and irresponsible to the Union.2

________________________________

  • 1 The Federalist, No. 81.
    2 Mr Rawle has remarked, that "the state tribunals are no part of the government of the United States. To render the government of the United States dependent on them, would be a solecism almost as great, as to leave out an executive power entirely, and to call on the states alone to enforce the laws or the Union." Rawle on Const. ch. 21, p. 20

CH. XXXVIII.] JUDICIARY--POWER OF CONGRESS. 449

1584. In considering the first clause of the third section, declaring, that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts, as the congress may from time to time ordain and establish," we are naturally led to the inquiry, whether congress possess any discretion, as to the creation of a Supreme Court and inferior courts, in whom the constitutional jurisdiction is to be vested. This was at one time matter of much discussion; and is vital to the existence of the judicial department. If congress possess any discretion on this subject, it is obvious, that the judiciary, as a co-ordinate department of the government, may, at the will of congress, be annihilated, or stripped of all its important jurisdiction; for, if the discretion exists, no one can say in what manner, or at what time, or under what circumstances it may, or ought to be exercised. The whole argument, upon which such an interpretation has been attempted to be maintained, is, that the language of the constitution, "shall be vested," is not imperative, but simply indicates the future tense. This interpretation has been overruled by the Supreme Court, upon solemn deliberation.1 "The language of the third article," say the court, "throughout is manifestly designed to be mandatory upon the legislature. Its obligatory force is so imperative, that congress could not, without a violation of its duty, have refused to carry it into operation. The judicial power of the United States shall be vested (not may be vested) in one Supreme Court, and in such inferior courts, as congress

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  • 1 See Martin v. Hunter, 1 Wheat. R. 304, 316. -- The Commentator, in examining the structure and jurisdiction of the judicial department, is compelled by a sense of official reserve to confine his remarks chiefly to doctrines, which are settled, or which have been deemed incontrovertible, leaving others to be discussed by those, who are unrestrained by such considerations.

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

may, from time to time, ordain and establish. Could congress have lawfully refused to create a Supreme Court, or to vest in it the constitutional jurisdiction? 'The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive, for their services, a compensation, which shall not be diminished during their continuance in office.' Could congress create or limit any other tenure of the judicial office? Could they refuse to pay, at stated times, the stipulated salary, or diminish it during the continuance in office? But one answer can be given to these questions; it must be in the negative. The object of the constitution was to establish three great departments of government; the legislative, the executive, and the judicial department. The first was to pass laws, the second to approve and execute them, and the third to expound and enforce them. Without the latter, it would be impossible to carry into effect some of the express provisions of the constitution. How, otherwise, could crimes against the United States be tried and punished? How could causes between two states be heard and determined? The judicial power must, therefore, be vested in some court by congress; and to suppose, that it was not an obligation binding on them, but might, at their pleasure, be omitted, or declined, is to suppose, that, under the sanction of the constitution, they might defeat the constitution itself. A construction, which would lead to such a result, cannot be sound.

1585. "The same expression, 'shall be vested,' occurs in other parts of the constitution, in defining the powers of the other co-ordinate branches of the government. The first article declares, that 'all legislative powers herein granted shall be vested in a congress of the United States.' Will it be contended, that the

CH. XXXVIII.] JUDICIARY--POWER OF CONGRESS. 451

legislative power is not absolutely vested? that the words merely refer to some future act, and mean only, that the legislative power may hereafter be vested? The second article declares, that 'the executive power shall he vested in a president of the United States of America.' Could congress vest it in any other person; or, is it to await their good pleasure, whether it is to vest at all? It is apparent, that such a construction, in either case, would be utterly inadmissible. Why, then, is it entitled to a better support in reference to the judicial department?

1586. If, then, it is a duty of congress to vest the judicial power of the United States, it is a duty to vest the whole judicial power. The language, if imperative, as to one part, is imperative, as to all. If it were otherwise, this anomaly would exist, that congress. might successively refuse to vest the jurisdiction in any one class of cases enumerated in the constitution, and thereby defeat the jurisdiction, as to all; for the constitution has not singled out any class, on which congress are bound to act in preference to others.

1587. "The next consideration is as to the courts, in which the judicial power shall be vested. It is manifest, that a supreme court must be established;but whether it be equally obligatory to establish inferior courts, is a question of some difficulty. If congress may lawfully omit to establish inferior courts, it might follow, that, in some of the enumerated cases, the judicial power could nowhere exist. The supreme court can have original jurisdiction in two classes of cases only, viz. in cases affecting ambassadors, other public ministers and consuls, and in cases, in which a state is a party. Congress cannot vest any portion of the judicial power of the United States, except in courts ordained and established by itself; and if, in any of the

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

cases enumerated in the constitution, the state courts did not then possess jurisdiction, the appellate jurisdiction of the supreme court (admitting that it could act on state courts) could not reach those cases; and, consequently, the injunction of the constitution, that the judicial power 'shall be vested,' would be disobeyed. It would seem, therefore, to follow, that congress are bound to create some inferior courts, in which to vest all that jurisdiction, which, under the constitution, is exclusively vested in the United States, and of which the Supreme Court cannot take original cognizance. They might establish one or more inferior courts; they might parcel out the jurisdiction among such courts, from time to time, at their own pleasure. But the whole judicial power of the United States should be, at all times, vested either in an original or appellate form, in some courts created under its authority.

1588. "This construction will be fortified by an attentive examination of the second section of the third article. The words are 'the judicial power shall extend,' &c. Much minute and elaborate criticism has been employed upon these words. It has been argued, that they are equivalent to the words 'may extend,' and that 'extend' means to widen to new cases not before within the scope of the power. For the reasons, which have been already stated, we are of opinion, that the words are used in an imperative sense. They import an absolute grant of judicial power. They cannot have a relative signification applicable to powers already granted; for the American people had not made. any previous grant. The constitution was for a new government, organized with new substantive powers, and not a mere supplementary charter to a government already existing. The confederation was a compact between states; and its structure and powers were

CH. XXXVIII.] JUDICIARY--POWER OF CONGRESS. 453

wholly unlike those of the national government. The constitution was an act of the people of the United States to supersede the confederation, and not to be ingrafted on it, as a stock through which it was to receive life and nourishment.

1589. "If, indeed, the relative signification could be fixed upon the term 'extend,' it would not (as we shall hereafter see) subserve the purposes of the argument, in support of which it has been adduced. This imperative sense of the words 'shall extend,' is strengthened by the context. It is declared, that 'in all cases affecting ambassadors, &,c, the supreme court shall have original jurisdiction.' Could congress withhold original jurisdiction in these cases from the supreme court? The clause proceeds --'in all the other cases before mentioned 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.' The very exception here shows, that the framers of the constitution used the words in an imperative sense. What necessity could there exist for this exception, if the preceding words were not used in that sense? Without such exception, congress would, by the preceding words, have possessed a complete power to regulate the appellate jurisdiction, if the language were only equivalent to the words 'may have' appellate jurisdiction. It is apparent, then, that the exception was intended as a limitation upon the preceding words, to enable congress to regulate and restrain the appellate power, as the public interests might, from time to time, require.

1590. "Other clauses in the constitution might be brought in aid of this construction; but a minute examination of them cannot be necessary, and would occupy too much time. It will be found, that, whenever a par-

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

ticulat object is to be effected, the language of the constitution is always imperative, and cannot be disregarded, without violating the first principles of public duty. On the other hand, the legislative powers are given in language which implies discretion, as from the nature of legislative power such a discretion must ever be exercised." We shall presently see the important bearing, which this reasoning has upon the interpretation of that section of the constitution, which concerns the jurisdiction of the national tribunals.

1591. The constitution has wisely established, that there shall be one Supreme Court, with a view to uniformity of decision in all cases whatsoever, belonging to the judicial department, whether they arise at the common law or in equity, or within the admiralty and prize jurisdiction; whether they respect the doctrines of mere municipal law, or constitutional law, or the law of nations. It is obvious, that, if there were independent supreme courts of common law, of equity, and of admiralty, a diversity of judgment might, and almost necessarily would spring up, not only, as to the limits of the jurisdiction of each tribunal; but as to the fundamental doctrines of municipal, constitutional, and public law. The effect of this diversity would be, that a different rule would, or might be promulgated on the most interesting subjects by the several tribunals; and thus the citizens be involved in endless doubts, not only as to their private rights, but as to their public duties. The constitution itself would or might speak a different language according to the tribunal, which was called upon to interpret it; and thus interminable disputes embarrass the administration of justice throughout the whole country.1 But the same reason did not

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  • 1 Dr. Paley's remarks, though general in their character, show a striking coincidence of opinion between the wisdom of the new, and the

CH. XXXVIII.] JUDICIARY--POWER OF CONGRESS. 455

apply to the inferior tribunals. These were, therefore, left entirely to the discretion of congress, as to their number, their jurisdiction, and their powers. Experience might, and probably would, show good grounds for varying and modifying them from time to time. It would not only have been unwise, but exceedingly inconvenient, to have fixed the arrangement of these courts in the constitution itself; since congress would have been disabled thereby from adapting them from time to time to the exigencies of the country.2 But, whatever may be the extent, to which the power of congress reaches, as to the establishment of inferior tribunals, it is clear from what has been already stated, that all the jurisdiction contemplated by the constitu-

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  • wisdom of the old world. Speaking on the subject or the necessity of one supreme appellate tribunal he says: "But, lastly, if several courts, co-ordinate to and independent or each other, subsist together in the country, it seems necessary, that the appeals from all of them should meet and terminate in the same judicature; in order, that one supreme tribunal, by whose final sentence all others are hound and concluded, may superintend and preside over the rest. This constitution is necessary for two purposes; -- to preserve a uniformity in the decisions of inferior courts, and to maintain to each the proper limits or its jurisdiction. Without a common superior, different courts might establish contradictory rules or adjudication, and the contradiction be final and without remedy; the same question might receive opposite determinations, according as it was brought before one court or another, and the determination in each be ultimate and irreversible. A common appellant jurisdiction prevents or puts an end to this confusion. For when the judgments upon appeals are consistent, (which may be expected, while it is the same court, which is at last resorted to,) the different courts, from which the appeals are brought will be reduced to a like consistency with one another. Moreover, if questions arise between courts independent or each other, concerning the extent and boundaries of their respective jurisdiction, as each will be desirous or enlarging it, own, an authority, which both acknowledge, can alone adjust the controversy. Such a power, therefore, must reside somewhere, lost the rights and repose of the country be distracted by the endless opposition and mutual encroachments of its courts of justice."
    2 See 2 Elliot's Debates, 380.

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

tion must be vested in some of its courts, either in an original, or an appellate form.

1592. We next come to the consideration of those securities, which the constitution has provided for the due independence and efficiency or the judicial department.

1593. The mode of appointment of the judges has necessarily come under review, in the examination of the structure and powers of the executive department. The president is expressly authorized, by and with the consent of the senate, to appoint the judges of the Supreme Court. The appointment of the judges of the inferior courts, is not expressly provided for; but has either been left to the discretion of congress, or silently belongs to the president, under the clause of the constitution authorizing him to appoint "all other officers of the United States, whose appointments are not herein otherwise provided for."1 In the convention, a proposition at first. prevailed, for the appointment of the judges of the Supreme Court by the senate, by a decided majority.2 At a later period, however, upon the report of a committee, the appointment of the judges of the Supreme Court, was given to the president, subject to the advice and consent of the senate, by a unanimous vote.3 The reasons for the change, were doubtless the same as those, which

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  • 1 Whether the Judges of the inferior. courts of the United Slates are such inferior officers, as the constitution contemplates to be within the power of congress, to prescribe the mode of appointment of so as to vest it in the president alone, or in the courts of law, or in the heads of departments, is a point, upon which no solemn judgment has ever been had. The practical construction has uniformly been, that they are not such inferior officers. And no act of congress prescribes the mode of their appointment. See the American Jurist for October, 1830, vol. 4, art. V.p. 298.
    2 Journal of Convention, 19, 98, 121, 137, 186, 187, 195, 196, 211, 212.
    3 Id. 325, 326, 340.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 457

led to the vesting of other high appointments in the executive department.1

1594. The next consideration is the tenure, by which the judges hold their offices. It is declared that "the judges, both of the Supreme and In-

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  • 1 The Federalist, No. 78. -- Mr. Chancellor Kent has summed up the reasoning, in favour of an appointment of he judges by the executive, with his usual strength. "The advantages of the mode of appointment of public officers by the president and senate have been already considered. This mode is peculiarly fit and proper, in respect to the judiciary department. The just and vigorous investigation and punishment of every species of fraud and violence, and the exercise of the power of compelling every men, to the punctual performance of his contracts, are grave duties, not of the most popular character, though the faithful discharge of them, will certainly command the calm approbation of the judicious observer. The fittest men would probably have too much reservedness of manners, and severity of morals, to secure an election resting on universal suffrage. Nor can the mode of appointment by a large deliberative assembly be entitled to unqualified approbation. There are too many occasions, and too much temptation for intrigue, party prejudice, and local interests, to permit such a body of men to act, in respect to such appointments, with a sufficiently single and steady regard for the general welfare. In ancient Rome, the praetor was chosen annually by the people, but it was in the comitia by centuries; and the choice was confined to persons belonging to the patrician order, until the close of the fourth century of the city, when the office was rendered accessible to the plebeians; and when they became licentious, says Montesquieu, the office became corrupt. The popular elections did very well, u he observes. so long as the people were free, and magnanimous, and virtuous, and the public was without corruption. But all plans of government, which suppose the people will always act with wisdom and integrity, are plainly Utopian, and contrary to uniform experience. Government must be framed for man, as he is, and not for man, as he would be, if he were free from vice. Without referring to those cases in our own country, where judges have been annually elected by a popular assembly, we may take the less invidious case of Sweden. During the diets, which preceded the revolution in 1772, the states of the kingdom sometimes appointed commissioners to act as judges. The strongest party, says Catteau, prevailed in the trials, that came before them; and persons condemned by one tribunal were acquitted by another" 1 Kent's Comm. Lect 14, p. 273, 274, (2d edition. p. 291, 292.)

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

ferior Courts shall hold their offices during good behaviour."1 Upon this subject, the Federalist has spoken with so much clearness and force, that little can be added to its reasoning. "The standard of good behaviour, for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy, it is an excellent barrier to the despotism of the prince: in a republic, it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient, which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. Whoever attentively considers the different departments of power, must perceive, that in a government, in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy, or injure them. The executive not only dispenses the honours, but holds the sword of the community. The legislature, not only commands the purse, but prescribes the rules, by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword, or the purse; no direction either of the strength, or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force, nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm, for the efficacious exercise even of this faculty.

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  • 1 For the interpretation of the meaning of the words. good behaviour, see the judgment of Lord Holt, in Harcourt v. Fox; 1 Shower's R. 426, 506, 536. S. C. Shower's Cases in Parl. 158.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 459

1595. "This simple view of the matter suggests several important consequences. It proves incontestibly that the judiciary is, beyond comparison, the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that, though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter: I mean, so long as the judiciary remains truly distinct from both the legislature and executive. -- For I agree, that 'there is no liberty, if the power of judging be not separated from the legislative and executive powers.' It proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that, as all the effects of such an union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; that, as nothing can contribute so much to its firmness and independence, as permanency in office, this quality may, therefore, be justly regarded, as an indispensable ingredient in its constitution; and, in a great measure, as the citadel of the public justice and the public security."

1596. "If then, the courts of justice are to be considered, as the bulwarks of a limited constitution against legislative encroachments; this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute, so much

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

as this, to that independent spirit in the judges, which must be essential to the faithful performance of so arduous a duty. This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves; and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the mean time, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though, I trust, the friends of the proposed constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the fight of the people to alter or abolish the established constitution, whenever they find it inconsistent with their happiness; yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 461

fortitude in the judges to do their duty, as faithful guardians of the constitution, where legislative invasions of it have been instigated by the major voice of the community.

1597. "But it is not with a view to infractions of the constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humours in the society. These sometimes extend no further, than to the injury of the private rights of particular classes of citizens by unjust and partial laws. Here, also, the firmness of the judicial magistracy is of vast importance, in mitigating the severity, and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those, which may have been passed; but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of an iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may imagine. The benefits of the integrity and moderation of the judiciary have already been felt in more states than one; and though they may have displeased those, whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men of every description ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure, that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable ten-

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

dency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.

1598. "That inflexible and uniform adherence to the rights of the constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges, who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the executive or legislature, there would be danger of an improper complaisance to the branch, which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity to justify a reliance, that nothing would be consulted, but the constitution and the laws.

1599. "There is yet a further and a weighty reason for the permanency of judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable, that they should be bound down by strict rules and precedents, which serve to define, and point out their duty in every particular case, that comes before them. And it will readily be conceived, from the variety or controversies, which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 463

swell to a very considerable bulk, and must demand long and laborious study, to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society, who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those, who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit characters; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands, less able, and less well qualified to conduct it with utility and dignity. In the present circumstances of this country, and in those, in which it is likely to be for a long time to come, the disadvantages on this score would be greater, than they may at first sight appear; but it must be confessed, that they are far inferior to those, which present themselves under the other aspects of the subject.

1600. "Upon the whole, there can be no room to doubt, that the convention acted wisely in copying from the models of those constitutions, which have established good behaviour,as the tenure of judicial offices in point of duration; and that, so far from being blameable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government The experience of Great Britain affords an illustrious comment on the excellence of the institution."

1601. These remarks will derive additional

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

strength and confirmation, from a nearer survey of the judicial branch of foreign governments, as well as of the several states composing the Union. In England, the king is considered, as the fountain of justice; not indeed as the author, but as the distributer of it; and he possesses the exclusive prerogative of erecting courts of judicature, and appointing the judges.1 Indeed, in early times, the kings of England often in person heard and decided causes between party and party. But as the constitution of government became more settled, the whole judicial power was delegated to the judges of the several courts of justice; and any attempt, on the part of the king, now to exercise it in person, Would be deemed an usurpation.2 Anciently, the English judges held their offices according to the tenure of their commissions, as prescribed by the crown, which was generally during the pleasure of the crown, as is the tenure of office of the Lord Chancellor, the judges of the courts of admiralty, and others, down to the present day. In the time of Lord Coke, the Barons of the Exchequer held their offices during good behaviour, while the judges of the other courts of common law held them only during pleasure.3 And it has been said, that, at the time of the restoration of Charles the Second, the commissions of the judges were during good behaviour.4 Still, however, it was at the

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  • 1 1 Black. Comm. 267; 2 Hawk. B. 2, ch. 1, 1, 2, 3; Corn. Dig. Prerogative, D. 28; Id. Courts, A; Id. Officers, A.; Id. Justices, A.
    2 Ibid; 1 Woodes. Lect. III, p. 87; 4 Inst. 70, 71; 2 Hawk. B. 2, ch. 1, 2, 3; 1 Black. Comm. 41, and note by Christian.
    3 4 Coke Inst. ch. 12, p. 117; Id. ch. 7, p. 75. -- The tenure of office of the Attorney and Solicitor General was at this period during good behaviour; 4 Coke, Inst. 117.
    4 1 Kent's Comm. Lect. 14, p. 275.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 465

pleasure of the crown, to prescribe what tenure of office it might choose, until after the revolution of 1688; and there can be no doubt, that a monarch so profligate as Charles the Second, would avail himself of the prerogative, as often as it suited his political, or other objects.

1609. It is certain, that this power of the crown must have produced an influence upon the administration, dangerous to private rights, and subversive of the public liberties of the subjects. In political accusations, in an especial manner, it must often have produced the most disgraceful compliances with the wishes of the crown; and the most humiliating surrenders of the rights of the accused.1 The Statute of 13 Will. 3, ch. 2, provided, that the commissions of the judges of the courts of common law should not be as formerly durante bene placito, but should be quam din bene se gesserint, and their salaries be ascertained, and established. They were made removeable, however, by the king, upon the address of both houses of parliament; and their offices expired by the demise of the king. Afterwards by a statute enacted in the reign of George the Third, at the earnest recommendation of the king, a noble improvement was made in the law, by which the judges are to hold their offices during go od behaviour, notwithstanding any demise of the crown; and their full salaries are secured to them, during the continuance of their commissions.2 Upon that occasion, the monarch made a declaration, worthy of perpetual

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  • 1 See De Lolme, B. 2, ch. 16, p. 350 to 354, 362. -- The State Trials before the year 1688 exhibit the most gross and painful illustrations of these remarks. Subserviency to the crown was so general in state prosecutions, that it ceased almost to attract public indignation.
    2 1 Black. Comm. 267, 268.

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

remembrance, that "he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as most conducive to the honour of the crown."1 Indeed, since the independence of the judges has been secured by this permanent duration of office, the administration of justice has, with a single exception,2 flowed on in England, with an uninterrupted, and pure, and unstained current. It is due to the enlightened tribunals of that nation to declare, that their learning, integrity, and impartiality, have commanded the reverence and respect, as well of America, as Europe.3 The judges of the old parliaments of France (the judicial tribunals of that country) were, before the revolution, appointed by the crown; but they held their offices for life; and this tenure of office gave them substantial independence. Appointed by the monarch, they were considered as nearly out of his power. The most determined exertions of that authority against them only showed their radical independence. They composed permanent bodies politic, constituted to resist arbitrary innovation; and from that corporate constitution, and from most of their powers they were well calculated to afford both certainty and stability to the laws. They had been a safe asylum to secure their laws, in all the revolutions of human opinion. They had saved that sacred deposit of the

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  • 1 1 Black. Comm. 267, 268.
    2 Lord Macclesfield.
    3 De Lolme has dwelt on this subject, with abundant satisfaction. (De Lolme, B. 2, ch. 16, p. 363 to 365.) The Eulogy of Emerigon has been often quoted, and in,Iced is as true, as it is striking. 2 Emerigon, 67, cited in 1 Marshall on Insurance, Preliminary Discourse, p. 30, note.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 467

country during the reigns of arbitrary princes, and the struggles of arbitrary factions. They kept alive the memory and record of the constitution. They were the great security to private property, which might be said (when personal liberty had no existence,) to be as well guarded in France, as in any other country.1

1603. The importance of a permanent tenure of office, to secure the independence, integrity, and impartiality of judges, was early understood in France. Louis the Eleventh, in 1467, made a memorable declaration, that the judges ought not to be deposed, or deprived of their offices, but for a forfeiture previously adjudged, and judicially declared by a competent tribunal. The same declaration was often confirmed by his successors; and after the first excesses of the French revolution were passed, the same principle obtained a public sanction. And it has now become incorporated, as,a fundamental principle, into the present charter of France, that the judges appointed by the crown shall be irremoveable.2 Other European nations have followed the same example;3 and it is highly probable, that as the principles of free governments prevail, the necessity of thus establishing the independence of the judiciary will be generally felt, and firmly provided for.4

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  • 1 This is the very language of Mr. Burke in his Reflections on the French Revolution. See also De Lolme, B. 1, ch. 12, p. 159, note.
    2 Merlin's Repertoire, art. Juge, No. 3.
    3 1 Kent's Comm. Lect. 14. p. 275.
    4 Dr. Paley's remarks on this subject are not the least valuable of his excellent writings. "The next security for the impartial administration of justice, especially in decisions, to which government is a party, is the independency of the judges. As protection against every illegal attack upon the rights of the subject by the servants of the crown is to be sought for from these tribunals, the judges of the land become not unfrequently the arbitrators between the king and the people; on

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

1604. It has sometimes been suggested, that, though in monarchial governments the independence of the judiciary is essential, to guard the rights of the subjects from the injustice and oppression of the crown; yet that the same reasons do not apply to a republic, where the popular will is sufficiently known, and ought always to be obeyed.1 A little consideration of the subject will satisfy us, that, so far from this being true, the reasons in favour of the independence of the judiciary apply with augmented force to republics; and especially to such as possess a written constitution with defined powers, and limited rights.

1605. In the first place, factions and parties are quite as common, and quite as violent in republics, as in monarchies; and the same safeguards are as indispensable in the one, as in the other, against the encroachments of party spirit, and the tyranny of factions. Laws, however wholesome or necessary, are frequently the objects of temporary aversion, and popular odium, and sometimes of popular resistance.2

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  • which account they ought to be independent of either; or, what is the same thing, equally dependent upon both: that is, if they be appointed by the one, they should be removable only by the other. This was the policy, which dictated the memorable improvement in our constitution, by which the judges, who before the revolution held their offices during the pleasure of the king, can now be deprived of them only by an address from both houses of parliament; as the most regular, solemn, and authentic way, by which the dissatisfaction of the people can be expressed. To make this independency of the judges complete, the public salaries of their office ought not only to be certain both in amount and continuance, but so liberal, as to secure their integrity from the temptation of secret bribes; which liberality will answer, also, the further purpose of preserving their jurisdiction from contempt, and their characters from suspicion; as well as of rendering the office worthy of the ambition of men of eminence in their procession." 1 4 Jefferson's Corresp. 287, 288, 289, 316, 352.
    2 1 Kent's Comm. Lect. 14, p. 275.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 469

Nothing is more facile in republics, than for demagogues, under artful pretences, to stir up combinations against the regular exercise of authority. Their selfish purposes are too often interrupted by the firmness and independence of upright magistrates, not to make them at all times hostile to a power, which rebukes, and an impartiality, which condemns them. The Judiciary, as the weakest point in the constitution, on which to make an attack, is therefore, constantly that, to which they direct their assaults; and a triumph here, aided by any momentary popular encouragement, achieves a lasting victory over the constitution itself. Hence, in republics, those, who are to profit by public commotions, or the prevalence of faction, are always the enemies of a regular and independent administration of justice. They spread all sorts of delusion, in order to mislead the public mind, and excite the public prejudices. They know full well, that, without the aid of the people, their schemes must prove abortive; and they, therefore, employ every art to undermine the public confidence, and to make the people the instruments of subverting their own rights and liberties.

1606. It is obvious, that, under such circumstances, if the tenure of office of the judges is not permanent, they will soon be rendered odious, not because they do wrong; but because they refuse to do wrong; and they will be made to give way to others, who shall become more pliant tools of the leading demagogues of the day. There can be no security for the minority in a free government, except through the judicial department. In a monarchy, the sympathies of the people are naturally enlisted against the meditated oppressions of their ruler; and they screen his victims from his vengeance. His is the cause of one against the

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

community. But, in free governments, where the majority, who obtain power for the moment, are supposed to represent the will of the people, persecution, especially of a political nature, becomes the cause of the community against one. It is the more violent and unrelenting, because it is deemed indispensable to attain power, or to enjoy the fruits of victory. In free governments, therefore, the independence of the judiciary becomes far more important to the security of the rights of the citizens, than in a monarchy; since it is the only barrier against the oppressions of a dominant faction, armed for the moment.with power, and abusing the influence, acquired under accidental excitements, to overthrow the institutions and liberties, which have been the deliberate choice of the people.1

1607. In the next place, the independence of the judiciary is indispensable to secure the people against the intentional, as well as unintentional, usurpations of the executive and legislative departments. It has been observed with great sagacity, that power is perpetually stealing from the many to the few; and the tendency of the legislative department to absorb all the other powers of the government has always been dwelt upon by statesmen and patriots, as a general truth, confirmed by all human experience.2 If the judges are appointed at short intervals, either by the legislative, or the executive department, they will naturally, and, indeed, almost necessarily, become mere dependents upon the appointing power. If they have any desire to obtain, or to hold office, they will at all times evince a desire to follow, and obey the will of the predominant power

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  • 1 1 Kent's Comm. Lect. 14, p. 275, 276.
    2 1 Wilson's Law Lect. 461, 462, 463.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 471

in the state. Justice will be administered with a faultering and feeble hand. It will secure nothing, but its own place, and the approbation of those, who value, because they control it. It will decree, what best suits the opinions of the day; and it will forget, that the precepts of the law rest on eternal foundations. The rulers and the citizens will not stand upon an equal ground in litigations. The favourites of the day will overawe by their power, or seduce by their influence; and thus, the fundamental maxim of a republic, that it is a government of laws, and not of men, will be silently disproved, or openly abandoned.1

1608. In the next place, these considerations acquire (as has been already seen) still more cogency and force, when applied to questions of constitutional law. In monarchies, the only practical resistance, which the judiciary can present, is to the usurpations of a single department of the government, unaided, and acting for itself. But, if the executive and legislative departments are combined in any course of measures, obedience to their will becomes a duty, as well as a necessity. Thus, even in the free government of Great Britain, an act of parliament, combining, as it does, the will of the crown, and of the legislature, is absolute and omnipotent. It cannot be lawfully resisted, or disobeyed. The judiciary is bound to carry it into effect at every hazard, even though it should sub-

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  • 1 It is far from being true, that the gross misconduct of the English Judges in many state prosecutions, while they held their offices during the pleasure of the crown, was in compliance only with the mere will of the monarch. On the contrary, they administered but too keenly to popular vengeance, acting under delusions of an extraordinary nature, sometimes political, sometimes religious, and sometimes arising from temporary prejudices.

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

vert private rights and public liberty.1 But it is far otherwise in a republic, like our own, with a limited constitution, prescribing at once the powers of the rulers, and the rights of the citizens.2 This very circumstance would seem conclusively to show, that the independence of the judiciary is absolutely indispensable to preserve the balance of such a constitution. In no other way can there be any practical restraint upon the acts of the government, or any practical enforcement of the rights of the citizens.3 This. subject has been already examined very much at large, and needs only to be touched in this place. No man can deny the necessity of a judiciary to interpret the constitution and laws, and to preserve the citizens against oppression and usurpation in civil and criminal prosecutions. Does it not follow, that, to enable the judiciary to fulfil its functions, it is indispensable, that the judges should not hold their offices at the mere pleasure of those, whose acts they are to check, and, if need be, to declare

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  • 1 See 1 Black. Comm. 9; Woodeson's Elements of Jurisprudence, Lect. 3, p. 48.
    2 1 Wilson's Law Lect. 460, 462.
    3 The remarks of Mr. Boudinot on this subject, in a debate in the house of representatives, deserve insertion in this place, from his high character for wisdom and patriotism. "It has been objected," says he, "that, by adopting the bill before us, we expose the measure to be considered, and defeated t,y the judiciary of the United States, who may adjudge it to be contrary to the constitution, and therefore void, and not lend their aid to carry it into execution. This gives me no uneasiness. I am so far from controverting this right in the judiciary, that it is my boast, and my confidence. It leads me to greater decision on all subjects of a constitutional nature, when I reflect, that, if from inattention, want of precision, or any other defect, I should do wrong, there is a power in the government, which can constitutionally prevent the operation of a wrong measure from affecting my constituents. I am legislating for a nation, and for thousands yet unborn; and it is the glory of the constitution, that there is a remedy for the failures even of the legislature itself." 1 Wilson's Law Lect. 462, 463.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 479

void? Can it be supposed for a moment, that men holding their offices for the short period of two, or four, or even six years, will be. generally found firm enough to resist the will of those, who appoint them, and may remove them?

1609. The argument of those, who contend for a short period of office of the judges, is founded upon the necessity of a conformity to the will of the people. But the argument proceeds upon a fallacy, in supposing, that the will of the rulers, and the will of the people are the same. Now, they not only may be, but often actually are, in direct variance to each other. No man in a republican government can doubt, that the will of the people is, and ought to be, supreme. But it is the deliberate will of the people, evinced by their solemn acts, and not the momentary ebullitions of those, who act for the majority, for a day, or a month, or a year. The constitution is the will, the deliberate will, of the people. They have declared under what circumstances, and in what manner it shall be amended, and altered; and until a change is effected in the manner prescribed, it is declared, that it, shall be the supreme law of the land, to which all persons, rulers, as well as citizens, must bow in obedience. When it is constitutionally altered, then and not until then, are the judges at liberty to disregard its original injunctions. When, therefore, the argument is pressed, that the judges ought to be subject to the will of the people, no one doubts the propriety of the doctrine in its true and legitimate sense.

1610. But those, who press the argument, use it in a far broader sense. In their view, the will of the people, as exhibited in the choice of the rulers, is to be followed. If the rulers interpret the constitution dif-

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

ferently from the judges, the former are to be obeyed, because they represent the opinions of the people; and therefore, the judges ought to be removable, or appointed for a short period, so as to became subject to the will of the people, as expressed by and through their rulers. But, is it not at once seen, that this is in fact subverting the constitution? Would it not make the constitution an instrument of flexible and changeable interpretation, and not a settled form of government with fixed limitations? Would it not become, instead of a supreme law for ourselves and our posterity, a mere oracle of the powers of the rulers of the day, to which implicit homage is to be paid, and speaking at different times the most opposite commands, and in the most ambiguous voices? In short, is not this an attempt to erect, behind the constitution, a power unknown, and unprovided for by the constitution, and greater than itself? What become of the limitations of the constitution, if the will of the people, thus inofficially promulgated, forms, for the time being, the supreme law, and the supreme exposition of the law? If the constitution defines the powers of the government, and points out the mode of changing them; and yet, the instrument is to expand in the hands of one set of rulers, and to contract in those of another, where is the standard? If the will of the people is to govern in the construction of the powers of the constitution, and that will is to be gathered at every successive election at the polls, and not from their deliberate judgment, and solemn acts in ratifying the constitution, or in amending it, what certainty can there be in those powers? If 'the constitution is to be expounded, not by its written text, but by the opinions of the rulers for the time being, whose opinions are to

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 475

prevail, the first, or the last? When, therefore, it is said, that the judges ought to be subjected to the will of the people, and to conform to their interpretation of the constitution, the practical meaning must be, that they should be subjected to the control of the representatives of the people in the executive and legislative departments, and should interpret the constitution, as the latter may, from time to time, deem correct.

1611. But it is obvious, that ejections can rarely, if ever, furnish any sufficient proofs, what is deliberately the will of the people, as to any constitutional or legal doctrines. Representatives and rulers must be ordinarily chosen for very different purposes; and, in many instances, their opinions upon constitutional questions must be unknown to their constituents. The only means known to the constitution, by which to ascertain the will of the people upon a constitutional question, is in the shape of an affirmative or negative proposition by way of amendment, offered for their adoption in the mode prescribed by the constitution. The elections in one year may bring one party into power; and in the next year their opponents, embracing opposite doctrines, may succeed; and so alternate success and defeat may perpetually recur in the same districts, and in the same, or different states.

1612. Surely it will not be pretended, that any constitution, adapted to the American people, could ever contemplate the executive and legislative departments of the government, as the ultimate depositaries of the power to interpret the constitution; or as the ultimate representatives of the will of the people, to change it at pleasure. If, then, the judges were appointed for two, or four, or six years, instead of during good behaviour, the only security, which the peo-

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

pie would have for a due administration of public justice, and a firm support of the constitution, would be, that being dependent upon the executive for their appointment during their brief period of office, they might, and would represent more fully, for the time being, the constitutional opinion of each successive executive; and thus carry into effect his system of government. Would this be more wise, or more safe, more for the permanence of the constitution, or the preservation of the liberties of the people, than the present system? Would the judiciary, then, be, in fact, an independent co-ordinate department? Would it protect the people against an ambitious or corrupt executive; or restrain the legislature from acts of unconstitutional authority?1

1613. The truth is, that, even with the most secure tenure of office, during good behaviour, the danger is not, that the judges will be too firm in resisting public opinion, and in defence of private rights or public liberties; but, that they will be too ready to yield themselves to the passions, and politics, and prejudices of the day. In a monarchy, the judges, in the performance

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  • 1 Mr. Jefferson, during the latter years of his life, and indeed from the time, when he became president of the United States, was a most strenuous advocate of the plan of making the judges hold their offices for a limited term of years only lie proposed, that their appointments should be for four, or six years, renewable by the president and senate. It is not my purpose to bring his opinions into review, or to comment on the terms, in which they are expressed. It is impossible not to perceive, that he entertained a decided hostility to the judicial department; and that he allowed himself in language of insinuation against the conduct of judges, which is little calculated to add weight to his opinions. He wrote on this subject apparently with the feelings of a partisan, and under influences, which his best friends will most regret. See 1 Jefferson's Corresp. 65, 66; 4 Jefferson's Corresp. 74, 75, 287, 288, 289, 317, 337, 352. His earlier opinions were of a different character. See Jefferson's Notes on Virginia, 195; Federalist, No. 48.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 477

of their duties with uprightness and impartiality, will always have the support of some of the departments of the government, or at least of the people. In republics, they may sometimes find the other departments combined in hostility against the judicial; and even the people, for a while, under the influence of party spirit and turbulent factions, ready to abandon them to their fate.1 Few men possess the firmness to resist the torrent of popular opinion; or are content to sacrifice present ease and public favour, in order to earn the slow rewards of a conscientious discharge of duty; the sure, but distant, gratitude of the people; and the severe, but enlightened, award of posterity.2

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  • 1 An objection was taken in the Pennsylvania convention against the constitution of the United States, that the judges were not made sufficiently independent, because they might hold other offices. 3 Elliot's Debates, 300, 313, 314.
    2 Mr. (now Judge) Hopkinson has treated this subject, as he has treated every other, failing within the range of his forensic or literary labours, in a masterly manner. I extract the following passages from his Defence of Mr. Justice Chase, upon his Impeachment, as equally remarkable for truth, wisdom, and eloquence.

    "The pure and upright administration of justice is of the utmost importance to any people; the other movements of government are not of such universal concern. Who shall be president,.or what treaties or general statutes shall be made, occupies the attention of a few busy politicians; but these things touch not, or but seldom, the private interests and happiness of the great mass of the community. But the settlement of private controversies, the administration of law between man and man, the distribution of justice and right to the citizen in his private business and concern, comes to every man's door, and is essential to every man's prosperity and happiness. Hence I consider the judiciary of our country most important among the branches of government, and its purity and independence of the most interesting consequence to every man. Whilst it is honorably and fully protected from the influence of favour, or fear, from any quarter, the situation of a people can never be very uncomfortable or unsafe. But if a judge is for ever to be exposed to prosecutions and impeachments for his official conduct on the mere suggestions of caprice, and to be condemned by the mere voice of prejudice, under the specious name of common sense, can he hold

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

1614. If passing from general reasoning, an appeal is made to the lessons of experience, there is every thing to convince us, that the judicial depart-

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  • that firm and steady hand his high functions require? No; if his nerves ere of iron, they must tremble in so perilous a situation. In England the complete independence of the judiciary has been considered, and has been found the best and surest safeguard of true liberty, securing a government of known and uniform laws, acting alike upon every man. It has, however, been suggested by some of our newspaper politicians, perhaps from a higher source, that although this independent judiciary is very necessary in a monarchy to protect the people from the oppression of a court, yet that in our republican institution the same reasons for it do not exist; that it is indeed inconsistent with the nature of our government, that any part or branch of it should be independent of the people, from whom the power is derived. And, as the house of representatives come most frequently from this great source of power, they claim the best right of knowing and expressing its will; and of course the right of a controlling influence over the other branches. My doctrine is precisely the reverse of this.

    "If I were called upon to declare, whether the independence of judges were more essentially important in a monarchy, or a republic, I should certainly say, in the latter, all governments require, in order to give them firmness, stability, and character, some permanent principle; some settled establishment. The want of this is the great deficiency in republican institutions; nothing can be relied upon; no faith can be given, either at home or abroad, to a people, whose systems, and operations, and policy, are constantly changing with popular opinion; if, however, the judiciary is stable and independent; if the rule of justice between men rests on permanent and known principles, it gives a security end character to a country, which is absolutely necessary in its intercourse with the world, and in its own internal concerns. This independence is further requisite, as a security from oppression. History demonstrates; from page to page, that tyranny and oppression have not been confined to despotisms, but have been freely exercised in republics, both ancient and modern; with this difference, -- that in the latter, the oppression has sprung from the impulse of some sudden gust of passion or prejudice, while, in the former, it is systematically planned and pursued, as an ingredient and principle of the government; the people destroy not deliberately, and will return to reflection and justice, if passion is not kept alive and excited by artful intrigue; but, while the fit is on, their devastation and cruelty is more terrible and unbounded, than the most monstrous tyrant. It is for their own benefit, and to protect them from the violence of their own passions, that it is essential to have some firm, unshaken, independent, branch of government, able

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 479

ment is safe to a republic, with the tenure of office during good behaviour; and that justice will ordinarily be best administered, where there is most independence. Of the state constitutions, five only out of twentyfour have provided for any other tenure of office, than during good behaviour; and those adopted by the new states admitted into the Union, since the formation of the national government, have, with two or three exceptions only, embraced the same permanent tenure of office.1 No one can hesitate to declare, that in the states, .where the judges hold their offices during good. behaviour, justice is administered with wisdom, moderation, and firmness; and that the public confidence has reposed upon the judicial department, in the most critical times, with unabated respect. If the same can be said in regard to other states, where the judges enjoy a less permanent tenure of office, it will not answer the reasoning, unless it can also be shown, that the judges have never been removed for political causes, wholly distinct from their own merit; and yet have often deliberately placed themselves in opposition to the popular opinion.2

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  • and willing to resist their phrenzy; if we have read of the death of Seneca, under the ferocity of a Nero; we have read too of the murder of a Socrates, under the delusion of a republic. An independent and firm judiciary, protected god protecting by the laws, would have snatched the one from the fury of a despot, and preserved the other from the madness ore people." 2 Chase's Trial, 18, 19, 20. 1 Dr. Lieber's Encyclopedia Americana, Art. Constitutions of the United Stales.
    2 It affords me very great satisfaction to be able to cite the opinions of two eminent commentators on this subject, who, differing in many other views of constitutional law, concur in upholding the necessity of an independent judiciary in a republic. Mr. Chancellor Kent, in his Commentaries, says:

    "In monarchical governments, the independence of the judiciary is essential to guard the rights of the subject from the injustice of the crown; but in republics it is equally salutary, in protecting the constitution and

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

1615. The considerations above stated lead to the conclusion, that in republics there are, in reality, stronger reasons for an independent tenure of office

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  • laws from the encroachments and the tyranny of faction. Laws, however wholesome or necessary, are frequently the object or temporary aversion, and sometimes of popular resistance. It is requisite, that the courts of justice should be able at all times, to present a determined countenance against all licentious acts; and, to give them the firmness to do it, the judges ought to be confident of the security of their stations. Nor is an independent judiciary less useful, as a check upon the legislative power. which is sometimes disposed, from the force of passion, or the temptations of interest, to make a sacrifice of constitutional rights; and it is a wise and necessary principle of our government, as will be shown hereafter in the course of these lectures, that legislative acts are subject to the severe scrutiny and impartial interpretation of the courts of justice, who are bound to regard the constitution, as the paramount law, and the highest evidence of the will of the people." 1 Kent's Comm. Lect 14, p. 293, 294.

    Mr. Tucker, in his Commentaries, makes the following remarks:

    "The American constitutions appear to be the first, in which this absolute independence of tim judiciary hag formed one of the fundamental principles of the government. Doctor Ratherforth considers the judiciary, as a branch only of the executive authority; and such, in strictness, perhaps, it is in other countries, its province being to advise the executive, rather than to act independently of it." "But, in the United States of America, the judicial power is a distinct, separate, independent, and co-ordinate branch of the government; expressly recognized as such in our state bill of rights, and constitution. and demonstrably so, likewise, by the federal constitution, from which the courts of the United States derive all their powers, in like manner, as the legislative and executive departments derive. theirs. The obligation, which the constitution imposes upon the judiciary department, to support the constitution of the United States, would be nugatory, if it were dependent upon either of the other branches of the government, or in any manner subject to their control, since such control might operate to the destruction, instead of the support, of the constitution. Nor can it escape observation, that to require such an oath on the part of the judges, on the one hand, and yet suppose them hound by acts of the legislature, which may violate the constitution, which they have sworn to support. carries with it such a degree of impiety, as well as absurdity, as no man, who pays any regard to the obligations of an oath, can be supposed, either to contend for, or to defend.

    "This absolute independence of the judiciary, both of the executive and the legislative departments, which I contend is to be found, both

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 481

by the judges, a tenure during good behaviour, than in a monarchy. Indeed, a republic with a limited constitution, and yet without a judiciary sufficiently inde-

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  • in the letter, and spirit of our constitutions, is not less necessary to the liberty and security of the citizen, and his property, in a republican government, than in a monarchy. If, in the latter, the will of the prince may be considered, as likely to influence the conduct of judges created occasionally, and holding their offices only during his pleasure, more especially in eases, where a criminal prosecution may be carried on by his orders, and supported by his influence; in a republic, on the other hand, the violence and malignity of party spirit, as well in the legislature, as in the executive, requires not less the intervention of, calm, temperate, upright, and independent judiciary, to prevent that violence and malignity from exerting itself 'to crush in dust and ashes' all opponents to its tyrannical administration, or ambitious projects. Such an independence can never be perfectly attained, but by a constitutional tenure of office, equally independent of the frowns and smiles of the other branches of the government. Judges ought, not only to be incapable of holding any other office at the same time, but even of appointment to any but a judicial office. For the hope of favour is always more alluring, and generally more dangerous, than the fear of offending. In England, according to the principles of the common law, a judge cannot hold any other office; and according to the practice there for more than a century, no instance can, I believe, be shown, where a judge has been appointed to any other, than a judicial office, unless it be the honorary post of privy counsellor, to which no emolument is attached. And even this honorary distinction is Seldom conferred, but upon the chief justice of the king's bench, if I have been rightly informed. To this cause, not less than to tile tenure of their offices during good behaviour, may we ascribe that pre-eminent integrity, which amidst surrounding corruption, beams with genuine lustre from the English courts of judicature, as from the sun through surrounding clouds and mists. To emulate both their wisdom and integrity is an ambition, worthy of the greatest characters in any country.

    "If we consider the nature of the judicial authority, and the manner, in which it operates, we shall discover, that it cannot, of itself oppress any individual; for the executive authority must lend its aid in every instance, where oppression can ensue from its decisions: whilst, on the contrary, its decisions in favour of the citizen are carried into instantaneous effect, by delivering him from the custody and restraint of the executive officer, the moment, that an acquittal is pronounced. And herein consists one of the great excellencies of our constitution: that no individual can be oppressed, whilst this branch of the government remains independent, and uncorrupted: it being a necessary check

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

pendent to check usurpation, to protect public liberty, and to enforce private rights, would be as visionary and absurd, as a society organized without any restraints of law. It would become a democracy with unlimited powers, exercising through its rulers a universal despotic sovereignty. The very theory of a balanced republic of restricted powers presupposes some organized means to control, and resist, any excesses of authority. The people may, if they please, submit all power to their rulers for the time being; but, then, the government should receive its true appellation and character. It would be a government of tyrants, elective, it is true, but still tyrants; and it would become the more fierce, vindictive, and sanguinary, because it would perpetually generate factions in its own bosom, who could succeed only by the ruin of their enemies. It would be alternately characterized, as a reign of terror, and a reign of imbecility. It would be as cor-

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  • upon the encroachments, or usurpations of power, by either of the other."

    "That absolute independence of the judiciary, for which we contend, is not, then, incompatible with the strictest responsibility; (for a judge is no more exempt from it, than .any other servant of the people, according to the true principles of the constitution;) but such an independence of the other co-ordinate branches of the government, as seems absolutely necessary to secure to them the free exercise of their constitutional functions, without the hope of pleasing, or the fear of offending. And, as from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches, who have the custody of the purse and sword of the confederacy; and as nothing can contribute so much to its firmness and independence, as permanency in office, this quality, therefore, may be justly regarded, as an indispensable ingredient in its constitution; and in great measure, as the citadel of the public justice, and the public security." 1 Tuck. Black. Comm. App. 354, 356 to 360.

    There is also a very temperate, and, at the same time, a very satisfactory elucidation of the same subject, in Mr. Rawle's work on the Constitution, (ch. 30.) It would be cheerfully extracted, if this note had not already been extended to an inconvenient length.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 483

rupt, as it would be dangerous. It would form another model of that profligate and bloody democracy, which, at one time, in the French revolution, darkened by its deeds the fortunes of France, and left to mankind the appalling lesson, that virtue, and religion, genius, and learning, the authority of wisdom, and the appeals of innocence, are unheard and unfelt in the frenzy of popular excitement; and, that the worst crimes may be sanctioned, and the most desolating principles inculcated, under the banners, and in the name of liberty. In human governments, there are but two controlling powers; the power of arms, and the power of laws. If the latter are not enforced by a judiciary above all fear, and above all reproach, the former must prevail; and thus lead to the triumph of military over civil institutions. The framers of the constitution, with profound wisdom, laid the corner stone of our national republic in the permanent independence of the judicial establishment. Upon this point. their vote was unanimous.1 They adopted the results of an enlightened experience. They were not seduced by the dreams of human perfection into the belief, that all power might be safely left to the unchecked operation of the private ambition, or personal virtue of rulers. Nor, on the other hand, were they so lost to a just estimate of human concerns, as not to feel, that confidence must be reposed somewhere; if either efficiency, or safety are to be consulted in the plan of government. Having provided amply for the legislative and executive authorities, they established a balance-wheel, which, by its independent structure, should adjust the irregularities, and check the excesses of the occasional movements of the system.

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  • 1 Journal of Convention, 100, 188.

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

1616. In the convention a proposition was offered to make the judges removeable by the president, upon the application of the senate and house of representatives; but it received the support of a single state only.1

1617. This proposition doubtless owed its origin to the clause in the act of parliament, (13 Will. 3 ch. 2,) making it lawful for the king to remove the judges on the address of both houses of parliament, notwithstanding the tenure of their offices during good behaviour, established by the same act.2 But a moment's reflection will teach us, that there is no just analogy in the cases. The object of the act of parliament was to secure the judges from removal at the mere pleasure of the crown; but not to render them independent of the action of parliament. By the theory of the British constitution, every act of parliament is supreme and omnipotent. It may change the succession to the crown; and even the very fundamentals of the constitution. It would have been absurd, therefore, to have exempted the judges alone from the general jurisdiction of this supreme authority in the realm. The clause was not introduced into the act, for the purpose of conferring the power on parliament, for it could not be taken away, or restricted; but simply to recognize it, as a qualification of the tenure of office; so that the judges should have no right to complain of any breach of an implied contract with them, and the crown should not be deprived of the means to remove an unfit judge, whenever parliament should in their discretion signify their assent. Besides; in England the judges are not, and cannot be, called upon to de-

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  • 1 Journ. of Convention, 296.
    2 1 Black. Comm. 266.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 485

cide any constitutional questions; and therefore there was no necessity to place them, and indeed there would have been an impropriety in placing them, even if it had been possible, (which it clearly was not) in a situation, in which they would not have been under the control of parliament.

1618. Far different is the situation of the people of the United States. They have chosen to establish a constitution of government, with limited powers and prerogatives, over which neither the executive, nor the legislature, have any power, either of alteration or control. It is to all the departments equally a supreme, fundamental, unchangeable law, which all must obey, and none are at liberty to disregard. The main security, relied on to check any irregular, or unconstitutional measure, either of the executive, or the legislative department, was (as we have seen) the judiciary. To have made the judges, therefore, removable, at the pleasure of the president and congress, would have been a virtual surrender to them of the custody and appointment of the guardians of the constitution. It would have been placing the keys of the citadel in the possession of those, against whose assaults the people were most strenuously endeavouring to guard themselves. It would be holding out a temptation to the president and congress, whenever they were resisted in any of their measures, to secure a perfect irresponsibility by removing those judges from office, who should dare to oppose their will. In short, in every violent political commotion or change, the judges would be removed from office, exactly as the lord chancellor in England now is, in order, that a perfect harmony might be established between the operations of all the departments of government. Such a power would have

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

been a signal proof of a solicitude to erect defences round the constitution, for the sole purpose of surrendering them into the possession of those, whose acts they were intended to guard against. Under such circumstances, it might well have been asked, where could resort be had to redress grievances, or to overthrow usurpations? Quis custodiet oustodes?

1619. A proposition of a more imposing nature was to authorize a removal of judges for inability to discharge the duties of their offices. But all considerate persons will readily perceive, that such a provision would either not be practised upon, or would be more liable to abuse, than calculated to answer any good purpose. The mensuration of the faculties of the mind has no place in the catalogue of any known art or science. An attempt to fix the boundary between the region of ability and inability would much oftener give rise to personal, or party attachments and hostilities, than advance the interests of justice, or the public good.1 And instances of absolute imbecility would be too rare to justify the introduction of so dangerous a provision.

1620. In order to avoid investigations of this sort, which must for ever be vague and unsatisfactory, some persons have been disposed to think, that a limitation of age should be assumed as a criterion of inability; so that there should be a constitutional removal from office, when the judge should attain a certain age. Some of the state constitutions have adopted such a limitation. Thus, in New-York, sixty years of age is a disqualification for the office of judge; and in some other states the period is prolonged to seventy. The value of these

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  • 1 The Federalist, No. 79. See Rawle on Constitution, ch. 30, p. 278, 279.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 487

provisions has never, as yet, been satisfactorily established by the experience of any state. That they have worked mischievously in some cases is matter of public notoriety. The Federalist has remarked, in reference to the limitation in New-York,1 "there are few at present, who do not disapprove of this provision. There is no station, in which it is less proper, than that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men, who survive it. And when, in addition to this circumstance, we consider how few there are, who outlive the season of intellectual vigour, and how improbable it is, that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude, that limitations of this sort have little to recommend them. In a

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  • 1 The limitation of New-York struck from its bench one of the greatest names, that ever adorned it, in the full possession of his extraordinary powers. I refer to Mr. Chancellor Kent, to whom the jurisprudence of New-York owes a debt of gratitude, that can never be repaid. He is at once the compeer of Hardwicke and Mansfield. Since his removal from the bench, he has composed his admirable Commentaries,* a work, which will survive, as an honor to the country, long after all the perishable fabrics of our day shall be buried in oblivion. If he had not thus secured an enviable fame since his retirement, the public might have had cause to regret, that New-York should have chosen to disfranchise her best citizens at the time, when their services were most important, and their judgments most mature.

    Even the age of seventy would have excluded from public service some of the greatest minds which have belonged to our country. At eighty, said Mr. Jefferson, Franklin was the ornament of human nature. At eighty, Lord Mansfield still possessed in vigor his almost unrivalled powers. If seventy had been the limitation in the constitution of the United States, the nation would have lost seven years of as brilliant judicial labors, us have ever adorned the annals of the jurisprudence of any country.

    * While the present work was passing through the press, a second edition has been published by the learned author; and it his been greatly improved by his severe, gate, and accurate judgment.

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

republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations, in which they have served their country long and usefully, and on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity, than is to be found in the imaginary danger of a superannuated bench."1

1621. It is observable, that the constitution has declared, that the judges of the inferior courts, as well as of the Supreme Court, of the United States, shall hold their offices during good behaviour. In this respect there is a marked contrast between the English government and our own. In England the tenure is exclusively confined to the judges of the superior courts, and does not (as we have already seen) even embrace all of these. In fact, a great portion of all the civil and criminal business of the whole kingdom is performed by persons delegated, pro hac vice, for this purpose under commissions issued periodically for a single circuit.2 It is true, that it is, and for a long period has been, ordinarily administered by the judges of the courts of King's Bench, Common Pleas, and Exchequer; but it is not so merely virtute officii, but under special commissions investing them from time to time with this authority in conjunction with other persons named in the commission. Such are the commissions of oyer and terminer, of assize, of gaol delivery, and of nisi prius, under which all civil and criminal trials of matters of fact are had at the circuits, and in the metropolis.3 By the constitu-

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  • 1 The Federalist, No. 79. See Rawle on Const. ch. 30, p. 278, 279.
    2 1 Wilson's Law Lect. 463, 464; 2 Wilson's Law Lect. 258, 259.
    3 See 3 Black. Comm. 58, 59, 60.

CH. XXXVIII.] JUDICIARY--TENURE OF OFFICE. 489

tion of the United States all criminal and civil jurisdiction must be exclusively confided to judges holding their office during good behaviour; and though congress may from time to time distribute the jurisdiction among such inferior courts, as it may create from time to time, and withdraw it at their pleasure, it is not competent for them to confer it upon temporary judges, or to confide it by special commission. Even if the English system be well adapted to the wants of the nation, and secure a wise and beneficent administration of justice in the realm, as it doubtless does; still it is obvious, that, in our popular government, it would be quite too great a power, to trust the whole administration of civil and criminal justice to commissioners, appointed at the pleasure of the president. To the constitution of the United States, and to those, who enjoy its advantages, no judges are known, but such, as hold their offices during good behaviour.1

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  • 1 1 Wilson's Law Lect. 464, 465. -- Mr. Tucker has spoken with a truly national pride and feeling on the subject of the national judiciary, in comparing it with that of England. "Whatever then has been said," says he, "by Baron Montesquieu, De Lolme, or Judge Blackstone, or any other writer, on the security derived to the subject from the independence of the judiciary of Great Britain, will apply at least as forcibly to that of the United States. We may go still further. In England the judiciary may be overwhelmed by a combination between the executive and the legislature. In America, (according to the true theory of our constitution,) it is rendered absolutely independent of, and superior to the attempts of both, to control, or crush it: First, by the tenure of office, which is during good behaviour; these words (by a long train of decisions in England, even as far back, as the reign of Edward the Third) in all commissions and grants, public or private, importing an office, or estate, for the life of the grantee, determinable only by his death, or breach of good behaviour. Secondly, by the independence of the judges, in respect to their salaries, which cannot be diminished. Thirdly, by the letter of the constitution, which defines and limits the powers of the several co-ordinate branches of the government; and the spirit of it, which forbids any attempt on the part of either to subvert the

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

1622. The next clause of the constitution declares, that the judges of the supreme and inferior courts "shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." Without this provision the other, as to the tenure of office, would have been utterly nugatory, and indeed a mere mockery. The Federalist has here also spoken in language so direct and convincing, that it supersedes all other argument.

1623. "Next to permanency in office, nothing can contribute more to the independence of the judges, than a fixed provision for their support. The remark made in relation to the president is equally applicable here. In the general course of human nature, a power over a man's subsistence amounts to a power over his will. And we can never hope to see realized in practice the complete separation of the judicial from the legislative power, in any system, which leaves the former dependent for pecuniary resource on the occasional grants of the latter. The enlightened friends to good government in every state have seen cause to lament the want of precise and explicit precautions in the state constitutions on this head. Some of these indeed have declared, that permanent salaries should be established for the judges; but the experiment has in some instances shown, that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been

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  • constitutional independence of the others. Lastly, by that uncontrollable authority in all eases of litigation, criminal or civil, which from the very nature of things is exclusively vested in this department, and extends to every supposable case, which can affect the life, liberty, or property of the citizens of America, under the authority of the federal constitution, and laws, except in the case of an impeachment." 1 Tuck. Black. Comm. App. 353, 354.

CH. XXXVIII.] JUDICIARY--COMPENSATION. 491

evinced to be requisite. The plan of the convention accordingly has provided, that the judges of the United States "shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office."

1624. "This, all circumstances considered, is the most eligible provision, that could have been devised. It will readily be understood, that the fluctuations in the value of money, and in the state of society, rendered a fixed rate of compensation in the constitution inadmissible. What might be extravagant to-day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances; yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands; and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause, which has been quoted, combines both advantages. The salaries of judicial offices may from time to time be altered, as occasion shall require; yet so as never to lessen the allowance, with which any particular judge comes into office, in respect to him. It will be observed, that a difference has been made by the convention between the compensation of the president and of the judges. That of the former can neither be increased, nor diminished. That of the latter can only not be diminished. This probably arose from the difference in the duration of the respective offices. As the president is to be electedfor no more than four years, it can rarely happen, that an adequate salary, fixed at the commencement of that period, will not

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

continue to be such to its end. But with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service.

1625. "This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed, that together With the permanent tenure of their offices, it affords a better prospect of their independence, than is discoverable in the constitutions of any of the states, in regard to their own judges. The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for maleconduct by the house of representatives, and tried by the senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point, which is consistent with the necessary independence of the judicial character; and is the only one, which we find in our own constitution, in respect to our own judges."1

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  • 1 Mr. Chancellor Kent has written a few brief but pregnant sentences on this subject; and he has praised the constitution of the United States, as in this respect an improvement upon all previously existing constitutions, in this, or in any other country. 1 Kent's Comm. Lect. 14, p. 276. In big second edition, (Id. p. 294,) he has in some manure limited the generality of expression of the first, by stating, that by the English act of settlement, of 12 &, 13 Will. 3, it was declared, that the salaries of the judges should be ascertained and established; and by the statute 1 George 3, the salaries of the judges were absolutely secured to them, during the continuance of their commissions.* Still there remains a striking difference in favour of the American constitution, inasmuch as in England the compensation, as well as the tenure of office, is within

    * See l Black. Comm. 267, 268.

CH. XXXVIII.] JUDICIARY--COMPENSATION. 493

1626. Mr. Justice Wilson also has, with manifest satisfaction, referred to the provision, as giving a decided superiority to the national judges over those of England. "The laws," says he, "in England, respecting the independency of the judges, have been construed, as confined to those in the superior courts. In the United States, this independency extends to judges in courts inferior, as well as supreme. This independency reaches equally their salaries, and their commissions. In England, the judges of the superior courts do not now, as they did formerly, hold their commissions and their salaries at the pleasure of the crown; but they still hold them at the pleasure of the parliament: the judicial subsists, and may be blown to annihilation, by the breath of the legislative department. In the United States, the judges stand upon the sure basis of the constitution: the judicial department is independent of the department of legislature. No act of congress can shake their commissions, or reduce their salaries. 'The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished, during their continuance in office.' It is not lawful for the president of the United States to remove them on the address of the two houses of congress. They may be removed, however, as they ought to be, on conviction of high crimes and misdemeanours. The judges of the United States stand on a much more independent footing, than that on which the judges of England stand, with

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  • the reach of the repealing power of parliament; but in the national government it constitutes a part of the supreme fundamental law, unalterable, except by an amendment of the constitution.

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

with regard to jurisdiction, as well as with regard to commissions and salaries. In many cases, the jurisdiction of the judges of the United States is ascertained, and secured by the constitution. As to these, the power of the judicial is co-ordinate with that of the legislative department. As to the other cases, by the necessary result of the constitution, the authority of the former is paramount to the authority of the latter."

1627. It would be a matter of general congratulation, if this language had been completely borne out by the perusal, of our juridical annals. But, unfortunately, a measure was adopted in 1802 under the auspices of president Jefferson,1 which, if its constitutionality can be successfully vindicated, prostrates in the dust the independence of all inferior judges, both as to the tenure of their office, and their compensation for services, and leaves the constitution a miserable and vain delusion. In the year 1801, congress passed an act2 reorganizing the judiciary, and authorizing the appointment of sixteen new judges, with suitable salaries, to hold the circuit courts of the United States, in the different circuits created by the act, Under this act the circuit judges received their appointments, and performed the duties of their offices, until the year 1802, when the courts, established by the act, were abolished by a general repeal of it by congress, without in the slightest manner providing for the payment of the salaries of the judges, or for any continuation of their offices.3 The result of this act, therefore, is

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  • 1 See Mr. Jefferson's Message, Dec. 8, 1801; 4 Wait's State Papers, p. 332.
    2 Act of 1801, ch. 75.
    3 Act of 8th of March, 1809. ch. 8.

CH. XXXVIII.] JUDICIARY--COMPENSATION. 495

(so far as it is a precedent,) that, notwithstanding the constitutional tenure of office of the judges of the inferior courts is during good behaviour, congress may, at any time, by a mere act of legislation, deprive them of their offices at pleasure, and with it take away their whole title to their salaries.1 How this can be reconciled with the terms, or the intent of the constitution, is more, than any ingenuity of argument has ever, as yet, been able to demonstrate.2 The system fell, because it was unpopular with those, who were then in possession of power; and the victims have hitherto remained without any indemnity from the justice of the government.

1628. Upon this subject a learned commentator3 has spoken with a manliness and freedom, worthy of himself and of his country. To those, who are alive to the just interpretation of the constitution; those, who, on the one side, are anxious to guard it against usurpations of power, injurious to the states; and those, who, on the other side, are equally anxious to

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  • 1 See Sergeant on Const. ch. 30, [ch. 32.]
    2 The act gave rise to one of the most animated debates, to be found in the annals of congress; and was resisted by a power of argument and eloquence, which has never been surpassed. These debates were collected, and printed in a volume at Albany in 1802; and are worthy of the* most deliberate perusal of every constitutional lawyer. The act may be asserted, without fear of contradiction, to have been against the opinion of a great majority of all the ablest lawyers at the time; and probably now, when the passions of the day have subsided, law lawyers will be found to maintain the constitutionality of the act. No one can doubt the perfect authority of congress to remodel their courts or to confer, or withdraw their jurisdiction at their pleasure. But the question is, whether they can deprive them of the tenure of their office, and their salaries, after they have once become constitutionally vested in them. See 3 Tuck. Black. Comm. App. 22 to 25.
    3 Mr. Tucker, 1 Tuck. Black. Comm. App. 360; 3 Tuck. Black. Comm. App. 22 to 25.

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

prevent a prostration of any of its great departments to the authority of the others; the language can never be unseasonable, either for admonition or instruction, to warn us of the facility, with which public opinion may be persuaded to yield up some of the barriers of the constitution under temporary influences, and to teach us the duty of an unsleeping vigilance to protect that branch, which, though weak in its powers, is yet the guardian of the rights and liberties of the people. "It was supposed," says the learned author, "that there could not be a doubt, that those tribunals, in which justice is to be dispensed, according to the constitution and laws of the confederacy; in which life, liberty, and property are to be decided upon; in which questions might arise as to the constitutional powers of the executive, or the constitutional obligation of an act of the legislature; and in the decision of which the judges might find themselves constrained by duty, and by their oaths, to pronounce against the authority of either, should be stable and permanent; and not dependent upon the will of the executive or legislature, or both, for their existence. That without this degree of permanence, the tenure of office during good behaviour could not secure to that department the necessary firmness to meet unshaken every question, and to decide, as justice and the constitution should dictate, without regard to consequences. These considerations induced an opinion, which, it was presumed, was general, if not universal, that the power vested in congress to erect, from time to time, tribunals inferior to the supreme court, did not authorize them, at pleasure, to demolish them. Being built upon the rock of the constitution, their foundations were supposed to partake of its perma-

CH. XXXVIII.] JUDICIARY--COMPENSATION. 497

nency, and to be equally incapable of being shaken by the other branches of the government. But a different construction of the constitution has lately prevailed. It has been determined, that a power to ordain and establish from time to time, carries with it a discretionary power to discontinue, or demolish. That although the tenure of office be during good behaviour, this does not prevent the separation of the office from the officer, by putting down the office; but only secures to the officer his station, upon the terms of good behaviour, so long as the office itself remains. Painful indeed is the remark, that this interpretation seems calculated to subvert one of the fundamental pillars of free governments, and to have laid the foundation of one of the most dangerous political schisms, that has ever happened in the United States of America."1

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  • 1 Whether justices of the peace, appointed under the authority of the United States, are inferior courts, within the sense of the constitution, has been in former times a matter of some controversy, but has never been decided by the Supreme Court. They ere doubtless officers of the government of the United States; but their duties are partly judicial, and partly executive or ministerial.* In these respects they have been supposed to be like commissioners of excise, of bankruptcy, commissioners to take depositions, and commissioners under treaties. And it has been said, that the constitution, in speaking of courts and judges, means those, who exercise all the regular and permanent duties, which belong to a court in the ordinary popular signification of the terms.+

    At present the courts of the United States, organized under the constitution, consist of district courts, (one of which at least is established in every state in the Union,) of circuit courts, and of a Supreme Court, the latter being composed of seven judges. The judiciary act of 1789, ch. 20; and the judiciary act of 1802, ch. 31, are those, which make the general provisions for the establishments of these courts, and for their jurisdiction, original and appellate. Mr. Chancellor Kent has given a brief but accurate account of the examination of the courts of the United States. 1 Kent's Comm. Lect 14, p. 279 to 985. [2d edit p. 298 to 305.]

    * Wise v. Withers, 3 Cranch's R. 336; S. C. 1 Peters's Cond. R. 552.
    + Sergeant on Const. (2d edit.) ch. 32, p. 377, 378.

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

1629. It is almost unnecessary to add, that, although the constitution has, with so sedulous a care, endeavoured to guard the judicial department from the overwhelming influence or power of the other coordinate departments of the government, it has not conferred upon them any inviolability, or irresponsibility for an abuse of their authority. On the contrary for any corrupt violation or omission of the high trusts confided to the judges, they are liable to be impeached, (as we have already seen,) and upon conviction, removed from office. Thus, on the one hand, a pure and independent administration of public justice is amply provided for; and, on the other hand, an urgent responsibility secured for fidelity to the people.

1630. The judges of the inferior courts, spoken of in the constitution, do not include the judges of courts appointed in the territories of the United States under the authority, given to congress, to regulate the territories of the United States. The courts of the territories are not constitutional courts, in which the judicial power conferred by the constitution on the general government, can be deposited. They are legislative courts, created in virtue of the general sovereignty, which exists in the national government over its territories. The jurisdiction, with which they are invested, is not a part of the judicial power, which is defined in the third article of the constitution; but arises from the same general sovereignty. In legislating for them, congress exercises the combined powers of the general, and of a state government. Congress may, therefore, rightfully limit the tenure of office of the judges of the territorial courts, as well as their jurisdiction; and it

CH. XXXVIII.] JUDICIARY--JURISDICTION. 499

has been accordingly limited to a short period of years.1

1631. The second section of the third article contains an exposition of the jurisdiction appertaining to the, judicial power of the national government. The first clause is as follows: "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; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies, to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state, claiming lands under grants of different states; and between a state, or the citizens thereof, and foreign states, citizens, or subjects."2

1632. Such is the judicial power, which the constitution has deemed essential, in order to follow out one of its great objects stated in the preamble, "to establish justice." Mr. Chief Justice Jay, in his very

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  • 1 The American Insurance Company v. Canter, 1 Peters's Sup. R. 511, 546.
    2 It has been very correctly remarked by Mr. Justice Iredell, that "the judicial power of the United States is of a peculiar kind. It is, indeed, commensurate with the ordinary legislative and executive powers of the general government, and the powers, which concern treaties. But it also goes further. When certain parties are concerned, although the subject in controversy does not relate to any special objects of authority of the general government, wherein the separate sovereignties of the separate states are blended in one common mass of supremacy; yet the general government has a judicial authority in regard to such subjects of controversy; and the legislature of the United States may pass all laws necessary to give such judicial authority its proper effect." Chisholm v. Georgia, 2 Dall. 433, 431; S. C. 2 Peters's Cond. R. 641.

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

able opinion, in Chisholm v. The State of Georgia,1 has drawn up a summary of the more general reasoning, on which each of these delegations of power is founded. "It may be asked," said he, "what is the precise sense and latitude, in which the words 'to establish justice,' as here used, are to be understood? The answer to this question will result from the provisions made in the constitution on this head. They are specified in the second section of the third article, where it is ordained, that the judicial power of the United States shall extend to ten descriptions of cases, viz. 1. To all cases arising under this constitution; because the meaning, construction, and operation of a compact ought always to be ascertained by all the parties, not by authority derived only from one of them. 2. To all cases arising under the laws of the United States; because, as such laws, constitutionally made, are obligatory on each state, the measure of obligation and obedience ought not to be decided and fixed by the party, from whom they are due, but by a tribunal deriving authority from both the parties. 3. To all cases arising under treaties made by their authority; because, as treaties are compacts made by, and obligatory on, the whole nation, their operation ought not to be affected, or regulated by the local laws, or courts of a part of the nation. 4. To all cases affecting ambassadors, or other public ministers, and consuls; because, as these are officers of foreign nations, whom this nation are bound to protect, and treat according to the laws of nations, cases affecting them ought only to be cognizable by national authority. 5. To all cases of admiralty and maritime jurisdiction; because, as the seas are the joint property
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  • 1 2 Dill R. 419, 475; S. C. 2 Peters's Cond. R. 635,671.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 501

of nations, whose right and privileges relative thereto, are regulated by the law of nations and treaties, such cases necessarily belong to national jurisdiction. 6. To controversies, to which the United States shall be a party; because in cases, in which the whole people are interested, it would not be equal, or wise, to let any one state decide, and measure out the justice due to others. 7. To controversies between two or more states; because domestic tranquillity requires, that the contentions of states should be peaceably terminated by a common judicatory; and, because, in a free country, justice ought not to depend on the will of either of the litigants. 8. To controversies between a state and citizens of another state; because, in case a state (that is, all the citizens of it) has demands against some citizens of another state, it is better, that she should prosecute their demands in a national court, than in a court of the state, to which those citizens belong; the danger of irritation and crimination, arising from apprehensions and suspicions of partiality, being thereby obviated. Because, in cases, where some citizens of one state have demands against all the citizens of another state, the cause of liberty and the rights of men forbid, that the latter should be the sole judges of the justice due to the latter; and true republican government requires, that free and equal citizens should have free, fair, and equal justice. 9. To controversies between citizens of the same state, claiming lands under grants of different states; because, as the rights of the two states to grant the land are drawn into question, neither of the two states ought to decide the controversy. 10. To controversies between a state, or the citizens thereof, and foreign states, citizens, or subjects; because, as

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

every nation is responsible for the conduct of its citizens towards other nations, all questions touching the justice due to foreign nations, or people, ought to be ascertained by, and depend on, national authority. Even this cursory view of the judicial powers of the United States leaves the mind strongly impressed with the. importance of them to the preservation of the tranquillity, the equal sovereignty, and the equal rights of the people."

1633. This opinion contains a clear, and, as far as it goes, an exact outline; but it will be necessary to examine separately every portion of the jurisdiction here given, in order that a more full and comprehensive understanding of all the reasons, on which it is founded, may be attained. And I am much mistaken, if such an examination will not display in a more striking light the profound wisdom and policy, with which this part of the constitution was framed.

1634. And first, the judicial power extends to all cases in law and equity, arising under the constitution, the laws, and the treaties of the United States.1 And by cases in this clause we are to understand criminal, as well as civil cases.2

1635. The propriety of the delegation of jurisdiction, in "cases arising under the constitution," rests on the obvious consideration, that there ought always to be some constitutional method of giving effect to
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  • 1 In the first draft of the constitution the clause was, "the jurisdiction of the Supreme Court shall extend to all cases arising under the laws passed by the legislature of the United States;" the other words, "the constitution," and "treaties," were afterwards added without any apparent objection. Journal of Convention, 226, 297, 298.
    2 1 Tucker's Black. Comm. App. 420, 421; Cohen, v. Virginia, 6 Wheat. It. 399; Rawle on Const. ch. 24, p. 226.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 503

constitutional provisions.1 What, for instance, would avail restrictions on the authority of the state legislatures, without some constitutional mode of enforcing the observance of them?2 The states are by the
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  • 1 Cohens v. Virginia, 6 Wheat. R. 415; Id. 402 to 404, ante, Vol. l. 266, 267.
    2 Mr. Madison, in the Virginia Resolutions and Report, January, 1800, says, that "cases arising under the constitution," in the sense of this clause, are of two descriptions. One of these comprehends the cases growing out of the restrictions on the legislative power of the states, such as emitting bills of credit, making any thing but gold and silver a tender in payment of debts. "Should this prohibition be violated," says he, "and a suit between citizens of the same stale be the consequence, this would be a case arising under the constitution before the judicial power of the United States. A second description comprehends suits between citizens and foreigners, or citizens of different states, to be decided according to the state or foreign laws; but submitted by the constitution to the judicial power of the United States; the judicial power being, in several instances, extended beyond the legislative power of the United States." [p. 28.] Mr. Tucker. in his Commentaries uses the following language: "The judicial power of the federal government extends to all cases in law and equity arising under the constitution. Now, the powers granted to the federal government, or prohibited to the states, being all enumerated, the cases arising under the constitution can only be such, as arise out of some enumerated power delegated to the federal government, or prohibited to those of the several states. These general words include what is comprehended in the next clause, viz. cases arising under the laws of the United States. But, as contradistinguished from that clause, it comprehends some cases afterwards enumerated; for example, controversies between two or more states; between a state and foreign states; between citizens of the same state claiming lands under grants of different states; all which may arise under the constitution, and not under any law of the United States. Many other cases might be enumerated, which would fall strictly under this clause, and no other. As, ifs citizen of one state should be denied the privileges of a citizen in another; so, if a person held to service or labour in one state, should escape into another and obtain protection there, as a free man; so, if a state should coin money, and declare the same to be a legal tender in payment of debt, the validity of such a tender, if made, would fail within the meaning of this clause. So also, if a state should, without the consent of congress, lay any duty upon goods imported, the question, as to the validity of such an act, if disputed, would come within the meaning of this clause and not of any other.

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

constitution prohibited from doing a variety of things; some of which are incompatible with the interests of the Union; others with its peace and safety; others with the principles of good government," The imposition of duties on imported articles, the declaration of war, and the emission of paper money, are examples of each kind. No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain, or correct the infractions of them.1 The power must be either a direct negative on the state laws, or an authority in the national courts to overrule such, as shall manifestly be in contravention to the constitution. The latter course was thought by the convention to be preferable to the former; and it is, without question, by far the most acceptable to the states.2

1636. The same reasoning applies with equal force to "cases arising under the laws of the United States." In fact, the necessity of uniformity in the interpretation of these laws would of itself settle every doubt, that could be raised on the subject. "Thirteen independent: courts of final jurisdiction (says the Federalist) over the same causes is a
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  • In all these cases equitable circumstances may arise, the cognizance of which, as well as such, as were strictly legal, would belong to the federal judiciary, in virtue of this clause." 1 Tuck. Black. Comm. App. 418, 419. See also 2 Elliot's Debates, 380, 383, 390, 400, 418, 419.
    • 1 See 3 Elliot's Debates, 142.
      2 The Federalist, No. 80. See also Id. No. 22; 2 Elliot's Debates, 389, 390. -- The reasonableness of this extent of the judicial power is very much considered by Mr. Chief Justice Marshall, in delivering the opinion of the court, in Cohens v. Virginia, (6 Wheat. R. 413 to 423,) from which some extracts will be made, in considering the appellate jurisdiction of the Supreme Court, in a future page.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 505

Hydra in government, from which nothing but contradiction and confusion can proceed."1

1637. There is still more cogency, if it be possible, in the reasoning, as applied to "cases arising under treaties made, or which shall be made, under the authority of the United States." Without this power, there would be perpetual danger of collision, and even of war, with foreign powers, and an utter incapacity to fulfil the ordinary obligations of treaties.2 The want of this power was (as we have seen3) a most mischievous defect in the confederation; and subjected the country, not only to violations of its plighted faith, but to the gross, and almost proverbial imputation of punic insincerity.4

1638. But, indeed, the whole argument on this subject has been already exhausted in the preceding part of these Commentaries, and therefore it may be dismissed without farther illustrations, although many humiliating proofs are to be found in the records of the confederation.5
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  • 1 The Federalist, No. 80; Id. No. 22; Id. No. 15; 2 Elliot's Debates, 389, 590: 3 Elliot's Debates, 142, 143. -- In the Convention, which framed the constitution, the following resolution was unanimously adopted. "That the jurisdiction of the national judiciary shall extend to cases arising under laws passed by the general legislature, and to such other questions, as involve the national peace and harmony." Journ. of Convention, 188, 189.
    2 The Federalist, No. 22 No. 80; 2 Elliot's Debates, 390, 400; The Federalist, No. 80. -- The remarks of The Federalist, No. 80, on this subject will be found very instructive, and should be perused by every constitutional lawyer.
    3 Ante, Vol. I. 266, 267, 483, 484; 3 Elliot's Debates, 148, 280.
    4 3 Elliot's Debates, 281.
    5 Ante, Vol. I. 266, 267, 483, 484; The Federalist, No. 22, No. 80; 1 Tuck. Black. Comm. App. 418, 419, 420. -- This clause was opposed with great earnestness in some of the state conventions, and particularly in that of Virginia, as alarming and dangerous to the rights and

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

1639. It is observable, that the language is, that "the judicial power shall extend 10 all cases in law and equity," arising under the constitution, laws, and treaties of the United States.1 What is to be understood by "cases in law and equity," in this clause? Plainly, cases at the common law, as contradistinguished from cases in equity, according to the known distinction in the jurisprudence of England, which our ancestors brought with them upon their emigration, and with which all the American states were familiarly acquainted.2 Here, then, at least, the constitution of the United States appeals to, and adopts, the common law to the extent of making it a rule in the pursuit of remedial justice in the courts of the Union.3 If the remedy must be in law, or in equity, according to the course of proceedings at the common law, in cases arising under the constitution, laws, and treaties, of the United States, it would seem irresistibly
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  • liberties of the states, since it would bring every thing within the vortex of the national jurisdiction. It was defended with great ability and conclusiveness of reasoning, as indispensable to the existence of the national government, and perfectly consistent with the safety and prerogatives of the states. See 2 Elliot's Debates, 380 to 427; 3 Elliot's Debates, 125, 128, 129, 133, 143; Id. 280; 4 Elliot's Debates; (Martin's Letter,) 45.
    • 1 Bee 3 Elliot's Debates, 127, 198, 129, 130, 133, 141, 143, 154.
      2 See Robinson v. Campbell, 3 Wheat. R. 212, 221, 223.
      3 It is a curious fact, that while the adoption of the common law, as the basis of the national jurisprudence, has been, in later times, the subject of such deep political alarm with some statesmen, the non-existence of it, as such a basis, was originally pressed by some of the ablest opponents of the constitution, as a principal defect. Mr. George Mason of Virginia urged that the want of a clause in the constitution, securing to the people the enjoyment of the common law, was a fatal defect. 2 American Museum, 534; ante, Vol. 1. p. 275. Yet the whole argument in the celebrated Resolutions of Virginia of January, 1800, supposes, that the adoption of it would have been a moat mischievous provision.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 507

to follow, that the principles of decision, by which these remedies must be administered, must be derived from the same source. Hitherto, such has been the uniform interpretation and mode of administering justice in civil cases, in the courts of the United States in this class of cases.1

1640. Another inquiry may be, what constitutes a case, within the meaning of this clause. It is clear, that the judicial department is authorized to exercise jurisdiction to the full extent of the constitution, laws, and treaties of the United States, whenever any question respecting, them shall assume such a form, that the judicial power is capable of acting upon it. When it has assumed such a form, it then becomes a case; and then, and not till then, the judicial power attaches to it. A case, then, in the sense of this clause of the constitution, arises, when some subject, touching the constitution, laws, or treaties of the United States, is submitted to the courts by a party, who asserts his rights in the form prescribed by law.2 In other words, a case is a suit in law or equity, instituted according to the regular course of judicial proceedings; and, when it involves any question arising under the constitution, laws, or treaties of the United States, it is within the judicial power confided to the Union.3
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  • l See Cox & Dick v. United States, 6 Peters's Sup. R. 172, 203; Robinson v. Campbell, 3 Wheat. R. 212. See Madison's Report, 7 January, 1800, p. 28, 29; Chisholm's Execulors v. Georgia, 2 Dall. R. 419, 433, 437; S. C. 2 Cond. R. 635, 640, 642, per Iredell J.; The Federalist, No. 80, No. 83.
    2 Osborn v. The Bank of the United States, 9 Wheat. R. 819. See Mr. Marshall's Speech on the case of Jonathan Robbins; Bee's Adm. R. 277.
    3 See 1 Tuck. Black. Comm. App. 418, 419, 420; Madison's Virginia

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

1641. Cases arising under the constitution, as contradistinguished from those, arising under the laws of the United States, are such as arise from the powers conferred, or privileges granted, or rights claimed, or protection secured, or prohibitions contained in the constitution itself, independent of any particular statute enactment. Many cases of this sort may easily be enumerated. Thus, if a citizen of one state should be denied the privileges of a citizen in another state;1 if a state should coin money, or make paper money a tender; if a person, tried for a crime against the United States, should be denied a trial by jury, or a trial in the state, where the crime is charged to be committed; if a person, held to labour, or service in one state, under the laws thereof, should escape into another, and there should be a refusal to. deliver him up to the party, to whom such service or labour may be due; in these, and many other cases, the question, to be judicially decided, would be a case arising under the constitution.2 On the other hand, cases arising under the laws of the United States are such, as grow out of the legislation of congress, within the scope of their constitutional authority, whether they constitute the right, or privilege, or claim, or protection, or defence, of the party, in whole or in part, by whom they are asserted.3 The same reasoning applies to cases arising under treaties. Indeed, wherever, in a judi-
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  • Resolutions and Report, January, 1800, p. 28; Marbury v. Madison, 1 Cranch's R. 137, 173, 174; Owing v. Norwood, 5 Cranch, R. 344. See 2 Elliot's Debates, 4 18, 419.
    • 1 The Federalist, No. 80.
      2 1 Tucker's Black. Comm. App. 418, 419; ante, Vol. II.
      3 Marbury v. Madison, 1 Cranch, 137, 173, 174.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 509

cial proceeding, any question arises, touching the validity of a treaty, or statute, or authority, exercised under the United States, or touching the construction of any clause of the constitution, or any statute, or treaty of the United States; or touching the validity of any statute, or authority exercised under any state, on the ground of repugnancy to the constitution, laws, or treaties, of the United States, it has been invariably held to be a case, to which the judicial power of the United States extends.1

1642. It has sometimes been suggested, that a case, to be within the purview of this clause, must be one, in which a party comes into court to demand something conferred on him by the constitution, or a law, or a treaty, of the United States. But this construction is clearly too narrow. A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the constitution, or a law, or a treaty, of the United States, whenever its correct decision depends on the construction of either. This is manifestly the construction given to the clause by congress, by the 25th section of the Judiciary Act, (which was almost contemporaneous with the constitution,) and there is no reason to doubt its solidity or correctness.2 Indeed, the main object of this clause would be defeated by any narrower construction; since the power was conferred for the purpose, in an especial manner, of
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  • 1 See Judiciary Act of 1789, ch. 20, 25; Martin v. Hunter, 1 Wheat. R. 304; Cohens v. Virginia, 6 Wheat. R. 264; Osborn v. Bank of the United States, 9 Wheat. R. 738; Gibbons v. Ogden, 9 Wheat. R. 1.
    2 Cohens v. Virginia, 6 Wheat. R. 378, 379, 391, 392. See also 1 Tuck. Black. Comm. App. 419, 420; Judiciary Actor 1789, ch. 20.

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

producing a uniformity of construction of the constitution, laws, and treaties of the United States.1

1643. This subject was a good deal discussed in a recent case 2 before the Supreme Court, where one of the leading questions was, whether congress could constitutionally confer upon the bank of the United States, (as it has done by the seventh section of its charter,3) general authority to sue, and be sued in the circuit courts of the United States. It was contended, that they could not, because several questions might arise in such suits, which might depend upon. the general principles of law, and not upon any act of congress. It was held, that congress did constitutionally possess the power, and had rightfully conferred it in that charter.

1644. The reasoning, on which this decision was founded, cannot be better expressed, than in the very language, in which it was delivered by Mr. Chief Justice Marshall. "The question," said he, "is whether it (the case) arises under a law of the United States. The appellants contend, that it does not, because several questions may arise in it, which depend on the general principles of the law, not on any act of congress. If this were sufficient to withdraw a case from the jurisdiction of the federal courts, almost every case, although involving the construction of a law, would be withdrawn; and a clause in the constitution, relating to a subject of vital importance to the government, and expressed in the most comprehensive terms, would be construed to mean almost nothing. There is scarcely any case, every part of which depends on the constitution, laws, or treaties of the United
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  • 1 The Federalist, No. 80; Cohens v. Virginia, 6 Wheat. R. 391, 392.
    2 Osborn v. Bank of the United States, 9 Wheat R. 738, 819, 820.
    3 Act of 1816, ch, 44, 7.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 511

States. The questions, whether the fact, alleged as the foundation of the action, be real or fictitious; whether the conduct of the plaintiff has been such as to entitle him to maintain his action; whether his right is barred; whether he has received satisfaction, or has, in any manner, released his claims; are questions, some or all, of which may occur in almost every case; and if their existence be sufficient to arrest the jurisdiction of the court, words, which seem intended to be as extensive, as the constitution, laws, and treaties of the Union, which seem designed to give the courts of the government the construction of all its acts, so far as they affect the rights of individuals, would be reduced to almost nothing."1

1645. After adverting to the fact, that there is nothing in the constitution to prevent congress giving to inferiour courts original jurisdiction in cases, to which the appellate power of the Supreme Court may extend, he proceeds: "We perceive, then, no ground, on which the proposition can be maintained, that congress is incapable of giving the circuit courts original jurisdiction, in any case, to which the appellate jurisdiction extends. We ask, then, if it can be sufficient to exclude this jurisdiction, that the case involves questions depending on general principles? A cause may depend on several questions of fact and law. Some of these may depend on the construction of a law of the United States; others on principles unconnected with that law. If it be a sufficient foundation for jurisdiction, that the title or right, set up by the party, may be defeated by one construction of the constitution or law of the United
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  • 1 Osborn v. Bank of the United States, 9 Wheat. R. 819, 820.

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

States, and sustained by the opposite construction, provided the facts necessary to support the action be made out, then all the other questions must be decided, as incidental to this, which gives that jurisdiction. Those other questions cannot arrest the proceedings. Under this construction, the judicial power of the Union extends effectively and beneficially to that most important class of cases, which depend on the character of the cause. On the opposite construction, the judicial power never can be extended to a whole case, as expressed by the constitution; but to those parts of cases only, which present the particular question involving the construction of the constitution or the law. We say it never can be extended to the whole case; because, if the circumstance, that other points are involved in it, shall disable congress from authorizing the courts of the Union to take jurisdiction of the original cause, it equally disables congress from authorizing those courts to take jurisdiction of the whole cause, on an appeal; and thus it will be restricted to a single question in that cause. And words obviously intended to secure to those, who claim rights under the constitution, laws, or treaties, of the United States, a trial in the federal courts, will be restricted to the insecure remedy of an appeal upon an insulated point, after it has received that shape, which may be given to it by another tribunal, into which he is forced against his will. We think, then, that when a question, to which the judicial power of the Union is extended by the constitution, forms an ingredient of the original cause, it is in the power of congress to give the circuit courts jurisdiction of that cause, although other questions of fact or of law may be involved in it."

CH. XXXVIII.] JUDICIARY--JURISDICTION. 513

1646. "The case of the bank is, we think, a very strong case of this description. The charter of incorporation not only creates it, but gives it every faculty, which it possesses. The power to acquire rights of any description, to transact business of any description, to make contracts of any description, to sue on those contracts, is given and measured by its charter; and that charter is a law of the United States. This being can acquire no right, make no contract, bring no suit, which is not authorized by a law of the United States. It is not only itself the mere creature of a law, but all its actions, and all its rights are dependent on the same law. Can a being, thus constituted, have a case, which does not arise literally, as well as substantially, under the law? Take the case of a contract, which is put as the strongest against the bank. When a bank sues, the first question, which presents itself, and which lies at the foundation of the cause, is, has this legal entity a right to sue? Has it a right to come, not into this court particularly, but into any court? This depends on a law of the United States. The next question is, has this being a right to make this particular contract? If this question be decided in the negative, the cause is determined against the plaintiff; and this question, too, depends entirely on a law of the United States. These are important questions, and they exist in every possible case. The right to sue, if decided once, is decided for ever; but the power of congress was exercised antecedently to the first decision on that right; and if it was constitutional then, it cannot cease to be so, because the particular question is decided. It may be revived at the will of the party, and most probably would be renewed, were the tribunal to be changed. But the

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

question, respecting the right to make a particular contract, or to acquire a particular property, or to sue on account of a particular injury, belongs to every particular case, and may be renewed in every case. The question forms an original ingredient in every cause: Whether it be in fact relied on, or not, in the defence, it is still a part of the cause, and may be relied on. The right of the plaintiff to sue cannot depend on the defence, which the defendant may choose to set up. His right to sue is anterior to that defence, and must depend on the state of things, when the action is brought. The questions, which the case involves, then, must determine its character, whether those questions be made in the cause or not. The appellants say, that the case arises on the contract; but the validity of the contract depends on a law of the United States, and the plaintiff is compelled, in every case, to show its validity. The case arises emphatically under the law. The act of congress is its foundation. The contract could never have been made, but under the authority of that act. The act itself is the first ingredient in the case, is its origin, is that, from which every other part arises. That other questions may also arise, as the execution of the contract, or its performance, cannot change the case, or give it any other origin, than the charter of incorporation. The action still originates in, and is sustained by, that charter.

1647. "The clause, giving the bank.a right to sue in the circuit courts of the United States, stands on the same. principle with the acts authorizing officers of the United States, who sue in their own names, to sue in the courts of the United States. The post-master general, for example, cannot sue

CH. XXXVIII.] JUDICIARY--JURISDICTION. 515

under that part of the constitution, which gives jurisdiction to the federal courts, in consequence of the character of the party, nor is he authorized to sue by the judiciary act. He comes into the courts of the Union under the authority of an act of congress, the constitutionality of which can only be sustained by the admission, that his suit is a case arising under a law of the United States. If it be said, that it is such a case, because a law of the United States authorizes the contract, and authorizes the suit, the same reasons exist with respect to a suit brought by the bank. That, too, is such a case; because that suit, too, is itself authorized, and is brought on a contract authorized by a law of the United States. It depends absolutely on that law, and cannot exist a moment without its authority.

1648. "If it be said, that a suit brought by the bank may depend in fact altogether on questions, unconnected with any law of the United States, it is equally true with respect to suits brought by the post-master general. The plea in bar may be payment, if the suit be brought on a bond, or nonassumpsit, if it be brought on an open account, and no other question may arise, than what respects the complete discharge of the demand. Yet the constitutionality of the act, authorizing the post-master general to sue in the courts of the United States, has never been drawn into question. It is sustained singly by an act of congress, standing on that construction of the constitution, which asserts the right of the legislature to give original jurisdiction to the circuit courts, in cases arising under a law of the United States. The clause in the patent law, authorizing suits in the circuit courts, stands, we

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

think, on the same principle. Such a suit is a case arising under a law of the United States. Yet the defendant may not, at the trial, question the validity of the patent, or make any point, which requires the construction of an act of congress. He may rest his defence exclusively on the fact, that he has not violated the right of the plaintiff. That this fact becomes the sole question made in the cause, cannot oust the jurisdiction of the court, or establish the position: that the case does not arise under a law of the United States.

1649. "It is said, that a clear distinction exists between the party and the cause; that the party may originate under a law, with which the cause has no connexion; and that congress may, with the same propriety, give a naturalized citizen, who is the mere creature of a law, a right to sue in the courts of the United States, as give that right to the bank. This distinction is not denied; and,if the act of congress was a simple act of incorporation, and contained nothing more, it might be entitled to great consideration. But the act does not stop with incorporating the bank. It proceeds to bestow upon the being. it has made, all the faculties and capacities, which that being possesses. Every act of the bank grows out of this law, and is tested by it. To use the language of the constitution, every act of the bank arises out of this law. A naturalized citizen is indeed made a citizen under an act of congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize con-

CH. XXXVIII.] JUDICIARY--JURISDICTION. 517

gress to enlarge or abridge those rights. The simple power of the national legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other fights, extends to him the capacity of suing in the courts of the United States, precisely under the same circumstances, under which a native might sue. He is distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none. There is, then, no resemblance between the act incorporating the bank, and the general naturalization law. Upon the best consideration, we have been able to bestow on this subject, we are of opinion, that the clause in the act of incorporation, enabling the bank to sue in the courts of the United States, is consistent with the constitution, and to be obeyed in all courts."1

1650. Cases may also arise under laws of the United States by implication, as well as by express enactment; so, that due redress may be administered by the judicial power of the United States. It is not unusual for a legislative act to involve consequences, which are not expressed. An officer, for example, is ordered to arrest an individual. It is not necessary, nor is it usual, to say, that he shall not be punished for obeying this order. His security is implied in the order itself. It is no unusual thing for an act of congress to imply, without expressing, this very exemption from state control. The collectors of the revenue, the carriers of the mail, the mint
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  • 1 Osborn v. Bank of the United State, 9 Wheat R. 821 to 828. See also Bank of the United States v. Georgia, 9 Wheat. R. 904.

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

establishment, and all those institutions, which are public in their nature, are examples in point. It has never been doubted, that all, who are employed in them, are protected, while in the line of their duty; and yet this protection is not expressed in any act of congress. It is incidental to, and is implied in, the several acts, by which those institutions are created; and is secured to the individuals, employed in them, by the judicial power alone; that is, the judicial power is the instrument employed by the government in administering this security.1

1651. It has also been asked, and may again be asked, why the words, "cases in equity," are found in this clause? What equitable causes can grow out of the constitution, laws, and treaties of the United States? To this the general answer of the Federalist2 seems at once clear and satisfactory. "There is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable, rather than of legal jurisdiction, as the distinction is known and established in several of the states. It is the peculiar province, for instance, of a court of equity, to relieve against what are called hard bargains: these are contracts, in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law; yet there may have been some undue, and unconscionable advantage taken of the necessities, or misfortunes of one of the parties, which a
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  • 1 Osborn v. Bank of United States, 9 Wheat. R. 865, 866; Id. 847, 848.
    2 The Federalist, No. 80. See also 1 Tuck. Black. Comm. App. 418, 419; 2 Elliot's Debates, 389, 390.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 519

court of equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice, without an equitable, as well as a legal jurisdiction. Agreements to convey lands, claimed under the grants of different states, may afford another example of the necessity of an equitable jurisdiction in the federal courts. This reasoning may not be so palpable in those states, where the formal and technical distinction between taw and Equity is not maintained, as in this state, where it is exemplified by every day's practice."

1652. The next clause, extends the judicial power "to all cases affecting ambassadors, other public ministers, and consuls." The propriety of this delegation of power to the national judiciary will scarcely be questioned by any persons, who have duly reflected upon the subject. There are various grades of public ministers, from ambassadors (which is the highest grade,) down to common resident ministers, whose rank, and diplomatic precedence, and authority, are well known, and well ascertained in the law and usages of nations.1 But whatever may be their relative rank and grade, public ministers of every class are the immediate representatives of their sovereigns. As such representatives, they owe no subjection to any laws, but those of their own
__________________________________

  • 1 Three classes are usually distinguished in diplomacy; 1. Ambassadors, who are the highest order, who are considered as personally representing their sovereigns; 2. Envoys Extraordinary, and ministers plenipotentiary; 3. Ministers resident, and ministers charges d'affaires. Mere common charges d'affaires, are deemed of still lower rank. Dr. Lieber's Encyclopedia Americana, art. Ministers, Foreign. Vattel, B. 4, ch. 6, 71 to 74.

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

country, any more than. their sovereign; and their actions are not generally deemed subject to the control of the private law of that state, wherein they are appointed to reside. He, that is subject to the coercion of laws, is necessarily dependent on that power, by whom those laws were made. But public ministers ought, in order to perform their duties to their own sovereign, to be independent of every power, except that by which they are sent; and, of consequence, ought not to be subject to the mere municipal law of that nation, wherein they are to exercise their functions.1 The rights, the powers, the duties,
_____________________________________

  • 1 1 Black. Comm. 253; Vattel, B. 4, ch. 7, 80, 81, 92, 99, 101; l Kent's Comm. Lect. 2, p. 37, 38. (2d edition, p. 38, 39.) -- In the cue of the Schooner Exchange v. M'Faddon, (7 Cranch, 116, 138,) the Supreme Court state the grounds of the immunity of foreign ministers, in a very clear manner, leaving the important question, whether that immunity can be forfeited by misconduct, open to future decision. "A second case," (says Mr. Chief Justice Marshall, in delivering the opinion of the court,) "standing on the same principles with the first, is the immunity, which all civilized nations allow to foreign ministers. Whatever may be the principle, on which his immunity is established, whether we consider him, as in the place of the sovereign he represents, or by a political fiction suppose him to be extra-territorial, and, therefore, in point of law, not within the jurisdiction of the sovereign, at whose court he resides; still, the immunity itself is granted by the governing power of the nation, to which the minister is deputed. This fiction of ex-territoriality could not be erected, and supported against the will of the sovereignof the territory. He is supposed to assent to it.

    "This consent is not expressed. It is true, that, in some countries, and in this, among others, a special law is enacted for. the case. But the law obviously proceeds on the idea of prescribing the punishment of an act previously unlawful, not of granting to a foreign minister a privilege, which he would not otherwise possess.

    "The assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction, which are admitted to attach to foreign ministers, is implied from the considerations, that, without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the ob-

CH. XXXVIII.] JUDICIARY--JURISDICTION. 521

and the privileges of public ministers are, therefore, to be determined, not by any municipal constitutions, but by the law of nature and nations, which is equally obligatory upon all sovereigns, and all states.1 What these rights, powers, duties, and privileges are, are inquiries properly belonging to a treatise on the law of nations, and need not be discussed here.2 But it is obvious, that every question, in which these rights, powers, duties, and privileges are involved, is so intimately connected with the public peace, and policy, and diplomacy of the nation, and touches the dignity and interest of the sovereigns of the ministers concerned so deeply, that it would be unsafe, that they should be submitted to any other, than, the highest judicature of the nation.
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  • jects of his mission. A sovereign, committing the interests of his nation with a foreign power to the care of a person, whom he has selected for that purpose, cannot intend to subject his minister in any degree to that power; and, therefore, a consent to receive him implies a consent, that he shall possess those privileges, which his principal intended he should retain--privileges which are essential to the dignity of his sovereign, and to the duties he is bound to perform.

    "In what cases a minister, by infracting the laws of the country, in which he resides, may subject himself to other punishment, than will be inflicted by his own sovereign, is an inquiry foreign to the present purpose. If his crimes be such, as to render him amenable to the local jurisdiction, it must be, because they forfeit the privileges annexed to his character; and the minister, by violating the conditions, under which he was received, as the representative of a foreign sovereign, has surrendered the immunities granted on those conditions; or, according to the true meaning of the original assent, has ceased to be entitled to them." See also I Black. Comm. 254, and Christian's note, (4); Vattel, B. 4, ch. 7, 92, 99, 101; Id. ch. 8, 113, 114, 115, 116; Id. ch. 9, 117, 119, 120, 121, 122, 123, 124; 1 Kent's Comm. Lect 2.

    • 1 Ex parte Cabrera, 1 Wash. Cir. R. 232.
      2 Vattel discusses the subject of the rights, privileges, and immunities of foreign ambassadors very much at large, in B. 4, ch. 7, of his Treatise on the Law of Nations.

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

1653. It is most fit, that this judicature should, in the first instance, have original jurisdiction of such cases,1 so that, if it should not be exclusive, it might at least be directly resorted to, when the delays of a procrastinated controversy in inferior tribunals might endanger the repose, or the interests of the government.2 I.t is well known, that an arrest of the Russian ambassador in a civil suit in England, in the reign of Queen Anne, was well nigh bringing the two countries into open hostilities; and was stoned for only by measures, which have been deemed, by her own writers, humiliating. On that occasion, an act of parliament was passed, which made it highly penal to arrest any ambassador, or his domestic servants, or to seize or distrain his goods; and this act, elegantly engrossed and illuminated, accompanied by aletter from the queen, was sent by an ambassador extraordinary, to propitiate the offended czar.3 And a statute to the like effect exists in the criminal code established by the first congress, under the constitution of the United States.4

1654. Consuls, indeed, have not in strictness a diplomatic character. They are deemed, as mere commercial agents; and therefore partake of the ordinary character of such agents; and are subject to the municipal laws of the countries, where they re-
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  • 1 The Federalist, No. 80. See also 2 Elliot's Debates, 390, 400; The Federalist, No. 80; Marbury v. Madison, 1 Cranch, R. 137, 174, 175.
    2 1 Tuckers Black. Comm. App. 361; Ex parte Cabrera, 1 Wash. Cirt. R. 232.
    3 1 Black. Comm. 255, 256; 4 Id. 70.
    4 Act of 1790, ch. 36, 26, 27; 1 Kent's Comm. Lect. 9, p. 170, 171, (2d edition, p. 182, 183.)

CH. XXXVIII.] JUDICIARY--JURISDICTION. 523

side.1 Yet, as they are the public agents of the nation, to which they belong, and are often entrusted with the performance of very delicate functions of state, and as they might be greatly embarrassed by being subject to the ordinary jurisdiction of inferior tribunals, state and national, it was thought highly expedient to extend the original jurisdiction of the Supreme Court to them also.2 The propriety of vesting jurisdiction, in such cases, in some of the national courts seems hardly to have been questioned by the most zealous opponents of the constitution.3 And in cases against ambassadors, and other foreign ministers, and consuls, the jurisdiction has been deemed exclusive.4
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  • 1 See Vattel, B. 2, ch. 2, 34; Id. B. 4, ch. 6, 75; Wicquefort, B. 1, 5; 1 Kent's Comm. Lect. 2, p. 40, 43, [2d edition, p. 41 to 44;] 2 Brown's Adm. Law, ch. 14, p. 503; Viveash v. Becket, 3 Maule & Sel. R. 284; Rawle on Const. ch. 24, p. 224 to 226.
    2 The Federalist, No. 80; Cohens, v. Virginia, 6 Wheat. R. 396; 1 Kent's Comm. Lect. 9. p. 44, (2d edition, p. 45;) Rawle on Const. ch. 24, p. 224 to 226.
    3 2 Elliot's Debates, 383, 384, 418; 3 Id. 281; 1 Tuckers Black. Comm. App. 183. -- Under the confederation no power existed in the national government, to punish any person for the violation of the rights of ambassadors, and other foreign ministers, and consuls. Congress, in November, 1781, recommended to the legislatures of the states, to pass laws punishing infractions of the law of Nations, committed by violating safe conducts, or passports granted by congress; by acts of hostility against persons in amity with the United States; by infractions of the immunities of ambassadors; by infractions of treaties, or conventions; and to erect a tribunal, or to vest one, already existing, with power to decide on offences against the law of nations; and to authorize suits for damages by the party injured, and for compensation to the United States, for damages sustained by them, from an injury done to a foreign power by a citizen. This, like other recommendations, was silently disregarded, or openly refused. See Journal of Congress, 23d of Nov. 1781, p. 934. Sergeant on Const. Introduction, p. 16, (2d edition.)
    4 Rawle on Constitution, ch. 91, p. 903; Id. ch. 94, p. 229, 223;

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

1655. It has been made a question, whether this clause, extending jurisdiction to all cases affecting ambassadors, ministers, and consuls, includes cases of indictments found against persons for offering violence to them; contrary to the statute of the United States, punishing such offence. And it has been held, that it does not. Such indictments are mere public prosecutions, to which the United States and the offender only are parties, and which are conducted by the United States, for the purpose of vindicating their own laws, and the law of nations. They are strictly, therefore, cases affecting the United States; and the minister himself, who has been injured by the offence, has no concern in the event of the prosecution, or the costs attending it.1 Indeed, it seems difficult to conceive, how there can be a case affecting an ambassador, in the sense of the constitution, unless he is a party to the suit on record, or is directly affected, and bound by the judgment.2

1656. The language of the constitution is perhaps broad enough to cover cases, where he is not a party; but may yet be affected in interest. This peculiarity in the language has been taken notice of, in a recent case, by the Supreme Court.3 "If a suit
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  • 1 Kent's Comm. Lect, 2, p. 44, (2d edition, p. 45); hi. Lect. 15, p. 294, 295, (2d edition, p. 314, 315); Commonwealth v. Kosloff, 5 Serg. & Rawle, 545; Hail v. Young, 3 Pick. R. 80; United States v. Ortega, 11 Wheat. R. 467, and Mr. Wheaton's note, Id. 469 to 475; Manhardt v. Soderstrom, l Binn. R. 138; United States v. Ravara, 2 Doll. R. 297; Cohens v. Virginia, 6 Wheat. II. 396, 397; Osborn v. Bank of United States, 9 Wheat. R. 820, 821; Chisholm v. Georgia, 2 Doll. R. 431, per Iredell, J.
    • 1 United States v. Ortega, II Wheat. R. 467. See also Osborn v. Bank of United States, 9 Wheat. R. 854, 855.
      2 Ibid.
      3 4 Ibid.

(CH. XXXVIII.] JUDICIARY--JURISDICTION. 525

be brought against a foreign minister," (Said Mr. Chief Justice Marshall, in delivering the opinion of the court) "the Supreme Court alone has original jurisdiction, and this is shown on the record. But, suppose a suit to be brought, which affects the interest of a foreign minister, or by which the person of his secretary, or of his servant, is arrested. The minister does not, by the mere arrest of his secretary, or his servant, become a party to this suit; but the actual defendant pleads to the jurisdiction of the court, and asserts his privilege. If the suit affects a foreign minister, it must be dismissed, not because he is a party to it, but because it affects him. The language of the constitution in the two cases is different. This court can take cognizance of all cases, 'affecting' foreign ministers; and, therefore, jurisdiction does not depend on .the party named in the record. But this language changes, when the enumeration proceeds to states. Why this change? The answer is obvious. In the case of foreign ministers, it was intended, for reasons, which all comprehend, to give the national courts jurisdiction over all cases, by which they were in any manner affected. In the case of states, whose immediate, or remote interests were mixed up with a multitude of cases, and who might be affected in an almost infinite variety of ways, it was intended to give jurisdiction in those cases only, to which they were actual parties."

1657. The next clause extends the judicial power "to all cases of admiralty and maritime jurisdiction."

1658. The propriety of this delegation of power seems to have been little questioned at the time of adopting the constitution. "The most bigotted idol-

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

izers of state authority," said the Federalist,1 "have not thus far shown a disposition to deny the national judiciary the cognizance of maritime causes. These so generally depend on the law of nations, and so commonly affect the rights of foreigners, that they fall within the considerations, which are relative to the public peace." The subject is dismissed with an equally brief notice by Mr. Chief Justice Jay, in the case of Chisholm v. Georgia, in the passage already cited.2 It demands, however, a more enlarged examination, which will clearly demonstrate its utility and importance, as a part of the national power.

1659. It has been remarked by the Federalist, in another place, that the jurisdiction of the court of admiralty, as well as of other courts, is a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits, by which it is circumscribed.3 This remark is equally tree in respect to England and America; to the high court of admiralty sitting in the parent country; and to the vice-admiralty courts sitting in the colonies. At different periods, the jurisdiction has been exercised to a very different extent; and in the colonial courts it seems to have had boundaries different from those prescribed to it in England. It has been exercised to a larger extent in Ireland, than in England; and down to this very day it has a most comprehensive reach in Scotland.4 The jurisdiction claimed by the courts of admiralty, as properly belonging to them, extends to all acts and
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  • 1 The Federalist, No. 80. See also 2 Elliot's Debates, 383, 384, 390, 418, 419.
    2 2 Dall. R. 475; ante Vol. 111. 1633.
    3 The Federalist, No. 37. See 1 Kent's Comm. Lect. 17.
    4 See De Lovto v. Boit, 2 Gallison's R. 398; 1 Kent's Comm. Lect. 17, passim.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 527

torts done upon the high seas, and within the ebb and flow of the sea, and to all maritime contracts, that is, to all contracts touching trade, navigation, or business upon the sea, or the waters of the sea within the ebb and flow of the tide. Some part of this jurisdiction has been matter of heated controversy between the courts of common law, and the high court of admiralty in England, with alternate success and defeat. But much of it has been gradually yielded to the latter, in consideration of its public convenience, if not of its paramount necessity. It is not our design to go into a consideration of these vexed questions, or to attempt any general outline of the disputed boundaries. It will be sufficient in this place to present a brief view of that, which is admitted, and is indisputable.1

1660. The admiralty and maritime jurisdiction, (and the word, "maritime," was doubtless added to guard against any narrow interpretation of the preceding word, "admiralty,") conferred by the constitution, embraces two great classes of cases; one dependent upon locality, and the other upon the nature of the contract. The first respects acts or injuries done upon the high sea, where all nations claim a
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  • 1 Upon this subject the learned reader is referred to Sergeant on Const. Law, ch. 21, and the authorities there cited; to Gordon's Digest, art. 763 to 792; to 1 Kent's Comm. Lect. 17, passim; 2 Brown's Adm. Law, ch. 4, 6, 19. Mr. Sergeant, in his introduction to the second edition of his very valuable work on Constitutional Law, (p. 3, 4, and note,) seems to suppose, that the admiralty commission of the governor of New-Hampshire, referred to in De Lovio v. Boit, 2 Gallison's R. 470, 471, might be an extension of the ordinary commissions of the colonial admiralty judges, It is believed, that he is mistaken in this, supposition. In Stokes's History of the Colonies there is a commission similar in its main clauses; and Mr. Stokes says, that it was the usual form of the commissions. Stokes's Hist. of Colon. ch. 4, p. 166. See also Mr. Wheaton's Notes to the case of United States v. Bevans, 3 Wheat. R. 336, 357, 361, 365.

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

common right and common jurisdiction; or acts, or injuries done upon the coast of the sea; or, at farthest, acts and injuries done within the ebb and flow of the tide. The second respects contracts, claims, and services purely maritime, and touching rights and duties appertaining to commerce and navigation. The former is again divisible into two great branches, one embracing captures, and questions of prize arising jure belli; the other embracing acts, torts, and injuries strictly of civil cognizance, independent of belligerent operations.1

1661. By the law of nations the cognizance of all captures, jure belli, or, as it is more familiarly phrased, of all questions of prize, and their incidents, belongs exclusively to the courts of the country, to which the captors belong, and from whom they derive their authority to make the capture. No neutral nation has any right to inquire into, or to decide upon, the validity of such capture, even though it should concern property belonging to its own citizens or subjects, unless its own sovereign or territorial rights are violated; but the sole and exclusive jurisdiction belongs to the courts of the capturing belligerent. And this jurisdiction, by the common consent of nations, is vested exclusively in courts of admiralty, possessing an original, or appellate jurisdiction. The courts of common law are bound to abstain from any decision of questions of this sort, whether they arise directly or indirectly in judgment. The remedy for illegal acts of capture is by the institution of proper prize proceedings in the prize courts of the captors.2 If justice be there denied, the nation itself
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  • 1 See Martin v. Hunter, 1 Wheat. R. 335.
    2 Le Caux v. Eden, Doug. R. 594; Lindo v. Rodney, Doug. R. 613, note; L'Invincible, 1 Wheat. R. 238; The Estrella, 4 Wheat. R. 298;

CH. XXXVIII.] JUDICIARY--JURISDICTION. 529

becomes responsible to the parties aggrieved; and if every remedy is refused, it then becomes a subject for the consideration of the nation, to which the parties aggrieved belong, which may vindicate their rights, either by a peaceful appeal to negotiation, or a resort to arms.

1662. It is obvious upon the slightest consideration, that cognizance of all questions of prize, made under the authority of the United States, ought to belong exclusively to the national courts. How, otherwise, can the legality of the captures be satisfactorily ascertained, or deliberately vindicated? It seems not only a natural, but a necessary appendage to the power of war, and negotiation with foreign nations. It would otherwise follow, that the peace of the whole nation might be put at hazard at any time by the misconduct of one of its members. It could neither restore upon an illegal capture; nor in many cases afford any adequate redress for the wrong; nor punish the aggressor. It would be powerless and palsied. It could not perform, or compel the performance of the duties required by the law of nations. It would be a sovereign without any solid attribute of sovereignty; and move in vinculis only to betray its imbecility. Even under the confederation, the power to decide upon questions of capture and prize was exclusively conferred in the last resort upon the national court of appeals.1 But like all other powers conferred by that instrument, it was totally disregarded, wherever it interfered with state policy, or with extensive popular interests. We have seen, that the sentences of the
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  • Bingham v. Cabot, 3 Dall. 19; La Amistad de Rues, 5 Wheat. R. 385; 1 Kent's Comm. Lect. 17, p. 334, (2 edition, p. 356.)
    • 1 Confederation, Art. 9.

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

national prize court of appeals were treated, as mere nullities; and were incapable of being enforced, until after the establishment of the present constitution.1 The same reasoning, which conducts us to the conclusion, that the national courts ought to have jurisdiction of this class of admiralty cases, conducts us equally to the conclusion, that, to be effectual for the administration of international justice, it ought to be exclusive. And accordingly it has been constantly held, that this jurisdiction is exclusive in the courts of the United States.2

1663. The other branch of admiralty jurisdiction, dependent upon locality, respects civil acts, torts, and injuries done on the sea, or (in certain cases) on waters of the sea, where the tide ebbs and flows, without amy claim of exercising the rights of war. Such are cases of assaults, and other personal injuries; cases of collision, or running of ships against each other; cases of spoliation and damage, (as they are technically called,) such as illegal seizures, or depredations upon property; cases of illegal dispossession, or withholding possession from the owners of ships, commonly called possessory suits; cases of seizures under municipal authority for supposed breaches of revenue, or other prohibitory laws; and cases of salvage for meritorious services performed in saving property, whether derelict, or wrecked, or captured, or otherwise in imminent hazard from extraordinary perils.3
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  • 1 See Penhallow v. Doane, 3 DaIl. R. 52; Jennings v. Carson, 4 Cranch 2; ante, Vol. I,
    2 See Martin v. Hunter, 1 Wheat. R. 345, 337; United States v. Bevans, 3 Wheat. R. 387; Houston v. Moore, 5 Wheat. It. 49; Ogden v. Saunders, 12 Wheat. R. 278; 1 Kent's Comm. Lect. 17, p. 330 to 337, [2 edition, p. 353 to 360.]
    3 See La Vengeanee, 3 Dall. R. 297; Martin v. Hunter, 1 Wheat. R. 335, 337; The Sarah, 8 Wheat. R. 391, 394; McDonough v. Dannery,

CH. XXXVIII.] JUDICIARY--JURISDICTION. 531

1664. It is obvious, that this class of cases has, or may have, an intimate relation to the rights and duties of foreigners in navigation and maritime commerce. It may materially affect our intercourse with foreign states; and raise many questions of international law, not merely touching private claims, but national sovereignty, and national reciprocity. Thus, for instance, if a collision should take place at sea between an American and a foreign ship, many important questions of public law might be connected with its just decision; for it is obvious, that it could not be governed by the mere municipal law of either country. So, if a case of recapture, or other salvage service performed to a foreign ship, should occur, it must be decided by the general principles of maritime law, and the doctrines of national reciprocity. Where a recapture is made of a friendly ship from the hands of its enemy, the general doctrine now established is, to restore it upon salvage, if the foreign country, to which it belongs, adopts a reciprocal rule; or to condemn it to the recaptors, if the like rule is adopted in the foreign country. And in other cases of salvage the doctrines of international and maritime law come into full activity, rather than those of any mere municipal code.1 There is, therefore, a peculiar fitness in
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  • 3 Dall. R. 189; The Blaireau, 2 Cranch, 249; The Amiable Nancy, 3 Wheat. R. 546; The General Smith, 4 Wheat R. 438; Rose v. Himeley, 4 Cranch, 241; Manro v. Almeida, 10 Wheat R. 473; The Apollon, 9 Wheat. R. 369; The Marianna Flora, 11 Wheat. R. 1, 42; The Fabius, 2 Rob. R. 245; The Thames, 5 Rob. R. 345; The St. Juan Baptista, 5 Rob. R. 33, 40, 41; Abbott on Shipping, P. 2, ch. 4, note to American edition, 1829, p. 139. 138; The Dundee, 1 Hagg. Adm. R. 109; The Ruckers, 4 Rob. R. 73; 1 Kent's Comm. Lect. 17, p. 342 to 352, [2 edition, p. 365 to 377 4 The Agincourt, l Hagg. R. 271.
    • 1 The Santa Cruz, 1 Rob. R. 50; The San Francisco, 1 Edw. p. 179; The Adeline, 9 Cranch, 344; 2 Wheat. R. App. 40 to 45; Abbott on Shipping, (Amer. edit. 1823,) P. 3, ch. 10, p. 397, 417, 422.

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

appropriating this class of cases to the national tribunals; since they will be more likely to be there decided upon large and comprehensive principles, and to receive a more uniform adjudication; and thus to become more. satisfactory to foreigners.

1665. The remaining class respects contracts, claims, and services purely maritime. Among these are the claims of material-men and others for repairs and outfits of ships belonging to foreign nations, or to other states;1 bottomry bonds for monies lent to ships in foreign ports to relieve their distresses, and enable them to complete their voyages;2 surveys of vessels damaged by perils of the seas;3 pilotage on the high seas;4 and suits for mariners wages.5 These, indeed, often arise in the course of the commerce and navigation of the United States; and seem emphatically to belong, as incidents, to the power to regulate commerce. But they may also affect the commerce and navigation of foreign nations. Repairs may be done, and supplies furnished to foreign ships; money may be lent on foreign bottoms; pilotage and mariners' wages may become due in voyages in foreign employment; and in such cases the general maritime law enables the courts of admiralty to administer a wholesome and prompt justice.6 Indeed, in many of these cases, as the courts of admiralty entert ain suits
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  • 1 The St. Jago de Cuba, 9 Wheat. R. 409, 416; The Aurora, l Wheat. R. 105.
    2 The Aurora, 1 Wheat. R. 96.
    3 Janney v. Columbia Insurance Company, 10 Wheat. R. 412, 415, 418.
    4 The Anne, 1 Mason's R. 508.
    5 The Thomas Jefferson, 10 Wheat.R. 428.
    6 The Two Friends, 1 Rob. R. 271; The Helena, 4 Rob. R. 3; The Jacob, 4 Rob. R. 245; The Gratitudine, 3 Rob. R. 240; The Favourite, 2 Rob. R. 232; Abbott on Shipping, P. 2, ch. 3, p. 115, Story's note; Id. P. 4, ch. 4; The Aurora, 1 Wheat R. 96.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 533

in rem, as well as in personam, they are often the only courts, in which an effectual redress can be afforded, especially when it is desirable to enforce a specific maritime lien.1

1666. So that we see, that the admiralty jurisdiction naturally connects itself, on the one hand, with our diplomatic relations and duties to foreign nations, and their subjects; and, on the other hand, with the great interests of navigation and commerce, foreign and domestic.2 There is, then, a peculiar wisdom in giving to the national government a jurisdiction of this sort, which cannot be wielded, except for the general good; and which multiplies the securities for the public peace abroad, and gives to commerce and navigation the most encouraging support at home. It may be added, that, in many of the cases included in these latter classes, the same reasons do not exist, as in cases of prize, for an exclusive jurisdiction; and, therefore, whenever the common law is competent to give a remedy in the state courts, they may retain their accustomed concurrent jurisdiction in the administration of it.3
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  • 1 Manro v. Almeida, 10 Wheat R. 473; The Merino, 9 Wheat. R. 391, 416, 417; The General Smith, 4 Wheat. R. 438; The Thomas Jefferson, 10 Wheat. R. 428; Sheppard v. Taylor, 5 Peters's Sup. R. 675; 1 Kent's Comm. Lect 17, p. 352 to 354, (2 edition, p. 378 to 381;) 2 Brown's Adm. Law, ch. 71.
    2 "The admiralty jurisdiction," said the Supreme Court in a celebrated case, "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." Martin v. Hunter, 1 Wheat. R. 335.
    3 Mr. Chancellor Kent and Mr. Rawle seem to think,* that the admiralty jurisdiction, given by the constitution, is in all cases necessarily

    * 1 Kant's Comm. Lect. 17, p. 351, (2 edit. p. 377;) Rawle on the Const. ch. 21, p. 202. See also 1 Tucker's Black. Comm. App 181, 182; 2 Elliot's Deb. 390; 10 Wheat. R. 418.

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

1667. We have been thus far considering the admiralty and maritime jurisdiction in civil cases only. But it also embraces all public offences, committed on the high seas, and in creeks, havens, basins, and bays within the ebb and flow of the tide, at least in such as are out of the body of any county of a state. In these places the jurisdiction of the courts of admiralty over offences is exclusive; for that of the courts of common law is limited to such offences, as are committed within the body of some county. And on the sea coast, there is an alternate, or divided
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  • exclusive. But it is believed, that this opinion is founded in a mistake. It is exclusive in all matters of prize, for the reason, that at the common law this jurisdiction is vested in the courts of admiralty, to the exclusion of the .courts of common law. But in cases, where the jurisdiction of the courts of common law and the admiralty are concurrent, (as in cases of possessory suits, mariners, wages, and marine torts,) there is nothing in the constitution, necessarily leading to the conclusion, that the jurisdiction was intended to be exclusive; and there is as little ground, upon general reasoning, to contend for it. The reasonable interpretation of the constitution would seem to be, that it conferred on the national judiciary the admiralty and maritime jurisdiction, exactly according to the nature and extent and modifications, in which it existed in the jurisprudence of the common law. Where the jurisdiction was exclusive, it remained so; where it was concurrent, it remained so. Hence, the states could have no right to create courts of admiralty, as such, or to confer on their own courts, the cognizance of such cases, as were exclusively cognizable in admiralty courts. But the states might well retain and exercise the jurisdiction in cases, of which the cognizance was previously concurrent in the courts of common law. This latter class of cases can be no more deemed cases of admiralty and maritime jurisdiction, than cases of common law jurisdiction. The judiciary act, of 1789, ch. 20, 9, has manifestly proceeded upon this supposition; for, while it has conferred on the District Courts, "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction," it has, at the same time, saved "to the suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." We shall, hereafter, have occasion to consider more at large, in what cases there is a concurrent jurisdiction in the national and state courts.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 535

jurisdiction of the courts of common law, and admiralty, in places between high and low water mark; the former having jurisdiction when, and as fat as the lids is out, and the latter when, and as far as the tide is in, usque ad filum aquae, or to high water mark.1 This criminal jurisdiction of the admiralty is therefore exclusively vested in the national government; and may be exercised over such crimes and offences, as congress may, from time to time, delegate to the cognisance of the national courts.2 The propriety of vesting this criminal jurisdiction in the national government depends upon the same reasoning, and is established by the same general considerations, as have been already suggested in regard to civil cases. It is essentially connected with the due regulation, and protection of our commerce and navigation on the high seas, and with our rights and duties in regard to foreign nations, and their subjects, in the exercise of common sovereignty on the ocean. The states, as such, are not known in our intercourse with foreign nations, and not recognised as common sovereigns on the ocean. And if they were permitted to exercise criminal or civil jurisdiction thereon, there would be endless embarrassments, arising from the
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  • 1 Constable's cue, 5 Co. R. 106; 2 Instit. 51; 1 Black. Comm. 110; Hale in Harg. Law Tracts, pt. 1, ch. 3; Id. ch. 4, p. 10, 12, pt. 2, ch. 7, p. 88; 2 Hale, P.C.p. 13, &c.; 64 Corn. Dig. Navigation, A. & B.; Id. Admiralty, E. J.; United States v. Grush, 5 Mason's R. 290; l Kent's Comm. Lect 17, p. 337 to 342, [2d edition, p. 360 to 365;] United States v. Bevans, 3 Wheat. R. 336; Id. 357; Mr. Wheaton's notes, 357, 361, 365, 366, 368, 369; Beeve's case, 2 Leach. Cir. Cas. 1093, (4th edition;) Ryan & Russ. Cas. 243; 4 Tucker's Black. Comm. App. 7.
    2 United States v. Bevans, 3 Wheat. R. 356, 386 to 389; 4 Elliot's Deb. 290, 1291; 1 Kent's Comm. Lect. 16, p. 319, 320, (2d edition, p. 339, 340;) Lect. 17, p. 337, (2d edition, p. 360.)

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

conflict of their laws, and the most serious dangers of perpetual controversies with foreign nations. In short, the peace of the Union would be constantly put at hazard by acts, over which it had no control; and by assertions of right, which it might wholly disclaim.1

1668. The next clause extends the judicial power "to controversies, to which the United States shall be a party."2 It scarcely seems possible to raise a rea-
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  • 1 It has been made a question, whether the admiralty jurisdiction can be exercised within the territories of the United States by the judges of the territorial courts, appointed under the territorial governments, as they are appointed for a limited term only, and not during good behaviour. The decision has been in favour of the jurisdiction, upon the ground, (already suggested,) that congress have the exclusive power to regulate such territories, as they may choose; and they may confer on the territorial government such legislative powers, is they may choose. The courts appointed in such territories, are not constitutional courts, in which the judicial powers conferred by constitution on the general government can be deposited. They are merely legislative courts; and the jurisdiction, with which they are invested, is not a part of the judicial power, defined in the third article of the constitution. The American Insurance Company v. Canter, 1 Peters's Sup. R. 511.
    2 Mr. Tucker, distinguishes between the word "cases," used in the preceding clauses, and the word "controversies" here used. The former he deems to include all suits, criminal as well as civil. The latter, as including such only, as are of a civil nature. As here applied, controversies "seem" (says he) "particularly appropriated to such disputes, as might arise between the United States, and any one or more states, respecting territorial or fiscal matters; or between the United States and their debtors, contractors, and agents. This construction is confirmed by the application of the word in the ensuing clauses, where it evidently refers to disputes of a civil nature only, such, for example, as may arise between two or more states, or between citizens of different states, or between a state and the citizens of another state, &c." l Tucker's Black. Comm. App. 420, 421. Mr. Justice Iredell, in his opinion in Chisholm v. Georgia, 2 Dull. R. 419, 431, 432, gives the same construction to the word "controversies," confining it to such as are of a civil nature.

    In the original draft of the constitution, this clause, "controversies to which the United States shall be a party," was omitted. It was add

CH. XXXVIII.] JUDICIARY--JURISDICTION. 537

sonable doubt, as to the propriety of giving to the national courts jurisdiction of cases, in which the United States are a party.1 It would be a perfect novelty in the history of national jurisprudence, as well as of public law, that a sovereign had no authority to sue in his own courts. Unless this power were given to the United States, the enforcement of all their rights, powers, contracts, and privileges in their sovereign capacity, would be at the mercy of the states. They must be enforced, if at all, in the state tribunals. And there would not only not be any compulsory power over those courts to perform such functions; but there would not be any means of producing uniformity in their decisions. A sovereign without the means of enforcing civil rights, or compelling the performance, either civilly or criminally, of public duties on the part of the citizens, would be a most extraordinary anomaly. It would prostrate the Union at the feet of the states. It would compel the national government to become a supplicant for justice before the judicature of those, who were by other parts of the constitution placed in subordination to it.2

1669. It is observable, that the language used does not confer upon any court cognizance of all controversies, to which the United States shall be a party, so as to justify a suit to be brought against the United States without the consent of congress. And
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  • ed afterwards without any apparent objection. Journal of Convention, 226, 297, 298.
    • 1 The Federalist, No. 80; 3 Elliot's Debates, 280, 281. See also 2 Elliot's Deb. 380, 383, 384, 389, 390, 400, 404.
      2 Mr. Sergeant, in his Introduction to his work on Constitutional Law, has abundantly shown the mischief of such a want of power under the confederation. See Serg. Const. Law, Introd. p. 15 to 18.

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

the language was doubtless thus guardedly introduced, for the purpose of avoiding any such conclusion. It is a known maxim, justified by the general sense and practice of mankind, and recognized in the law of nations, that it is inherent in the nature of sovereignty not to be amesnable to the suit of any private person, without its own consent.1 This exemption is an attribute of sovereignty, belonging to every state in the Union; and was designedly retained by the national government.2 The inconvenience of subjecting the government to perpetual suits, as a matter of right, at the will of any citizen, for any real or supposed claim or grievance, was deemed far greater, than any positive injury, that could be sustained by any citizen by the delay or refusal of justice. Indeed, it was presumed, that it never would be the interest or inclination of a wise government to withhold justice from any citizen. And the difficulties of guarding itself against fraudulent claims, and embarrassing and stale controversies, were believed far to outweigh any mere theoretical advantages, to be derived from any attempt to provide a system for the administration of universal justice.

1670. It may be asked, then, whether the citizens of the United States are wholly destitute of remedy, in case the national government should invade their rights, either by private injustice and injuries, or by public oppression? To this it may be answered, that in a general sense, there is a remedy in both cases. In
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  • 1 The Federalist, No. 81. See Chisholm v. Georgia, 2 Dall. R. 419, 478, S. C.; 2 Peters's Cond. R. 635, 674; 1 Black. Comm. 241 to 243; Cohens v. Virginia, 6 Wheat. R. 380; Id. 411, 412.
    2 Mr. Locke strenuously contends for this exemption of the sovereign from judicial amesnability; and in this, he does but follow out the doctrines of Puffendorf, and other writers on the law of nations. See Locke on Government, Pt. 2, 205; Puffendorf's Law of Nature and Nations, B. 8, ch. 10; Vattel, B. 1, ch. 4, 49, 50.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 539

regard to public oppressions, the whole structure of the government is so organized, as to afford the means of redress, by enabling the people to remove public functionaries, who abuse their trust, and to substitute others more faithful, and more honest, in their stead. If the oppression be in the exercise of powers clearly constitutional, and the people refuse to interfere in this manner, then indeed, the party must submit to the wrong, as beyond the reach of all human power; for how can the people themselves, in their collective capacity, be compelled to do justice, and to vindicate the rights of those, who are subjected to their sovereign control?1 If the oppression be in the exercise of unconstitutional powers, then the functionaries, who wield them, are amesnable for their injurious acts to the judicial tribunals of the country, at the suit of the oppressed.

1671. As to private injustice and injuries, they may regard either the rights of property, or the rights of contract; for the national government is per se incapable of any merely personal wrong, such as an assault and battery, or other personal violence. In regard to property, the remedy for injuries lies against the immediate perpetrators, who may be sued, and cannot shelter themselves under any imagined immunity of the government from due responsibility.2 If, therefore, any agent of the government shall unjustly invade the property of a citizen under colour of a public authority, he must, like every other violator of the laws, re-
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  • 1 See on this subject, 1 Black. Comm. 243 to 245.
    2 See Hoyt v. Gelston, 3 Wheat. R. 246; Osborn v. Bank of United States, 9 Wheat. R. 738; Marbury v. Madison, 1 Cranch. 137, 164, 165; 3 Black. Comm. 255.

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

spond in damages. Cases, indeed, may occur, in which he may not always have an adequate redress, without some legislation by congress. As for example, in places ceded to the United States, and over which they have an exclusive jurisdiction, if his real estate is taken without, or against lawful authority. Here he must rely on the justice of congress, or of the executive department The greatest difficulty arises in regard to the contracts of the national government; for as they cannot be sued without their own consent, and as their agents are not responsible upon any such contracts, when lawfully made, the only redress, which can be obtained, must be by the instrumentality of congress, either in providing (as they may) for suits in the common courts of justice to establish such claims by a general law, or by a special act for the relief of the particular party. In each case, however, the redress depends, solely upon the legislative department, and cannot be administered, except through its favour. The remedy is by an appeal to the justice. of the nation in that forum, and not in any court of justice, as matter of right.

1672. It has been sometimes thought, that this is a serious defect in the organization of the judicial department of the national government. It is not, however, an objection to the constitution itself; but it lies, if at all, against congress, for not having provided, (as it is clearly within their constitutional authority to do,) an adequate remedy for all private grievances of this sort, in the courts of the United States. In this respect, there is a marked contrast between the actual right and practice of redress in the national government, as well as in most of the state governments, and the right and practice maintained under the British constitution. In England, if any person has, in point of

CH. XXXVIII.] JUDICIARY--JURISDICTION. 541

property, a just demand upon the king, he may petition him in his court of chancery (by what is called a petition of right) where the chancellor will administer right, theoretically as a matter of grace, and not upon compulsion;1 but in fact, as a matter of constitutional duty. No such judicial proceeding is recognised, as existing in any state of this Union, as matter of constitutional right, to enforce any claim, or debt against a state. In the few cases, in which it exists, it is matter of legislative enactment.2 Congress have never yet acted upon the subject, so as to give judicial redress for any non-fulfilment of contracts by the national government. Cases of the most cruel hardship, and intolerable delay have already occurred, in which meritorious creditors have been reduced to grievous suffering, and sometimes to absolute ruin, by the tardiness of a justice, which has been yielded only after the humble supplications of many years before the legislature. One can scarcely refrain from uniting in the suggestion of a learned commentator, that in this regard the constitutions, both of the national and state governments, stand in need of some reform, to quicken the legislative action in the administration of justice; and, that
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  • 1 1 Black. Comm. 243; Comyn's Dig. Prerogative, D. 78 to D. 85; The Banker's cue, 1 Freeman R. 331; 8. e. 5 Mod. 29; 11 Harg. State Trials, 137; Skinner's R. 601; 2 Dall. R. 437 to 445; S.C. 2 Peters's Cond. It. 642 to 646. But see Macbeath v. Haldimand, I. T. R. 172, 176, 177.
    2 A suit against the state has been allowed in Virginia* and Maryland, and some other states by statute. But it is intimated, that, even when judgment has passed in favour of the claimant, he has sometimes received no substantial benefit from the judgment, from the omission of the legislature to provide suitable funds, or to make suitable appropriations to discharge the debt. 1 Tucker's Black. Comm. App. 352.

    * 1 Tucker's Black. Comm. 243, note (5); Chisholm v. Georgia, is, 2 Dall. R. 419, 434, 435.

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

some mode ought to be provided, by which a pecuniary right against a state, or against the United States, might be ascertained, and established by the judicial sentence of some court; and when so ascertained and established, the payment might be enforced from the national treasury by an absolute appropriation.1 Surely, it can afford no pleasant source of reflection to an American citizen, proud of his rights and privileges, that in a monarchy the judiciary is clothed with ample powers to give redress to the humblest subject in a matter of private contract, or property against the crown; and, that in a republic there is an utter denial of justice, in such cases, to any citizen through the instrumentality of any judicial process. He may complain; but he cannot compel a hearing. The republic enjoys a despotic sovereignty to act, or refuse, as it may please; and is placed beyond the reach of law. The monarch bows to the law, and is compelled to yield his prerogative at the footstool of justice.2
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  • 1 1 Tuck. Black. Comm. App. 352.
    2 Mr. Chief Justice Jay, in his opinion in the great case of Chisholm's Executors v. Georgia, 3 Dall. R. 414, 474, (S. C. 2 Peters's Cond. R. 635, 674,) takes a distinction between the case of the suability of a state, and the suability of the United States, by a citizen under the constitution, affirming the former, and denying the latter. His reason is thus stated. "In all cases of actions against states, or individual citizens, the national courts are supported in all their legal and constitutional proceedings and judgments, by the arm of the executive powers of the United States. But in cases of actions against the United States, there is no power, which the courts can call to their aid. From this distinction, important conclusions ere deducible; and they place the case of a state, and the ease of the United States, in a very different view." In the case of Macbeath v. Haldimand, (1 Term. Reports, 172.) Lord Mansfield seemed to intimate great doubts, whether, a petition of right would lie in England in any case, except of a private debt due from the crown; and not for debts contracted under the authority of parliament. Before the revolution, he said, "all the public supplies were given to the king, who, in

CH. XXXVIII.] JUDICIARY--JURISDICTION. 543

1673. The next clause extends the judicial power "to controversies between two or more states; between a state and the citizens of another state; between citizens of different states, claiming lands under grants of different states; and between a state or the citizens thereof, and foreign states, citizens, or subjects." Of these, we will speak in their order. And, first, "controversies between two or more states."1 This power seems to be essential to the preservation of the peace of the Union. "History" (says the Federalist,2) gives us a horrid picture of the dissensions and private wars, which distracted and desolated Germany, prior to the institution of the imperial chamber by Maximilian, towards the close of the fifteenth century; and informs us at the same time of the vast influence of that institution, in appeasing the disorders, and establishing the tranquillity of the empire. This was a court invested with authority to decide finally all differences among the members of the Germanic body."3 But we need not go for illustrations to the history of other countries. Our own has presented, in past times, abundant proofs of the irritating effects
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  • his individual capacity contracted for all expenses. lie alone had the disposition of the public money. But since that time, the supplies had been appropriated by parliament to particular purposes; and now, whoever advances money for the public service, trusts to the faith of parliament." Id. 176. But see Buller J.'s opinion, in the same case. See a]so Mr. Justice Iredell's opinion in Chisholm v. Georgia, 2 Dall. R. 437 to 445.
    • 1 In the first draft of the constitution, the words were to controversies "between two or more states, except such as shall regard territory or jurisdiction." The exception was subsequently abandoned. Journal of Convention, p. 226.
      2 The Federalist, No. 80.
      3 See also 1 Kent's Comm. Lect. 14, p. 977, 278, (2d edition, p. 295, 296;) 1 Robertson's Charles V. p. 183, 395, 397.

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

resulting from territorial disputes, and interfering claims of boundary between the states. And there are yet controversies of this sort, which have brought on a border warfare, at once dangerous to public repose, and incompatible with the public interests.1

1674. Under the confederation, authority was given to the national government, to hear and determine, (in the manner pointed out in the article,) in the last resort, on appeal, all disputes and differences between two or more states concerning boundary, jurisdiction, or any other cause whatsoever.2 Before the adoption of this instrument, as well as afterwards, very irritating and vexatious controversies existed between several of the states, in respect to soil, jurisdiction, and boundary; and threatened the most serious public mischiefs.3 Some of these controversies were heard and determined by the court of commissioners, appointed by congress. But, notwithstanding these adjudications, the conflict was maintained in some cases, until after the establishment of the present constitution.4

1675. Before the revolution, controversies between the colonies, concerning. the extent of their rights of soil, territory, jurisdiction, and boundary, under their respective charters, were heard and determined before
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  • 1 See Sergeant on Const Introduction, p. 11 to 16; 2 Elliot's Deb. 418.
    2 Confederation, art. 9.
    3 2 Elliot's Deb. 418; Sergeant on Const. Introduction, p. 11, 19, 13, 15, 16; 5 Journ. of Congress, 456; 7 Journ. of Congress, 364; 8 Journ. of Congress, 83; 9 Journ. of Congress, 64; 12 Journ. of Congress, 10, 52, 219, 220, 230.
    4 New York v. Connecticut, 4 Dall. R. 3, Fowler v. Lindsey, 3 Dall. R. 411; 3 Elliot's Deb. 281; 2 Elliot's Deb. 418.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 545

the king in council, who exercised original jurisdiction therein, upon the principles of Feudal sovereignty.1 This jurisdiction was often practically asserted, as in the case or the dispute between Massachusetts and New Hampshire, decided by the privy council, in 1679;2 and in the case of the dispute between New Hampshire and New York, in 1764.3 Lord Hardwicke recognised this appellate jurisdiction in the most deliberate manner, in the great case of Penn v. Lord Baltimore.4 The same necessity, which gave rise to it in our colonial state, must continue to operate through all future time. Some tribunal, exercising such authority, is essential to prevent an appeal to the sword, and a dissolution of the government. That it ought to be established under the national, rather than under the state, government; or, to speak more properly, that it can be safely established under the former only, would seem to be a position self-evident, and requiring no reasoning to support it.5 It may justly be presumed, that under the national government in all controversies of this sort, the decision will be impartially made according to the principles of justice; and all the usual and most effectual precautions are taken to secure this impartiality, by confiding it to the highest judicial tribunal.6

1676. Next; "controversies between a state and "the citizens of another state." "There are other
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  • 1 1 Back. Comm. 231.
    2 Ante, Vol. 1, 80; 1 Chalm. Annals, 489, 490; 1 Hutch. Hist. 319.
    3 Sergeant on Const. in Introduction, p. 5, 61 3 Belknap's Hist. of New Hampshire, 296, App. 10.
    4 1 Vesey's R. 444.
    5 The Federalist, No. :19. See also the remarks of Mr. Chief Justice Jay, ante, Vol. 1, 488, note; 2 Elliot's Debates, 418,
    6 The Federalist, No. 39, 80.

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

sources," says the Federalist,1 "besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the Union. To some of these we have been witnesses in the course of our past experience. It will be readily conjectured, that I allude to the fraudulent laws, which have been passed in too many of the states. And though the proposed constitution establishes particular guards against the repetition of those instances, which have hitherto made their appearance; yet it is warrantable to apprehend, that the spirit, which produced them, will assume new shapes, that could not be foreseen, nor specifically provided against. Whatever practices may have a tendency to distract the harmony of the states are proper objects of federal superintendence and control. It may be esteemed the basis of the Union, that 'the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states.' And if it be a just principle, that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that, in order to the inviolable maintenance of that equality of privileges and immunities, to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases, in which one state, or its citizens, are opposed to another state, or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary, that its construction should be committed to that tribunal, which, having no local attachments, will be likely to be impartial between the different states and their citizens, and which, owing its official existence to the Union,
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  • 1 The Federalist, No. 80.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 547

will never be likely to feel any bias inauspicious to the principles, on which it is founded." It is added, "The reasonableness of the agency of the national courts in cases, in which the state tribunals cannot be supposed to be impartial, speaks for it. No man ought certainly to be a judge in his own cause, or in any cause, in respect to which he has the least interest or bias. This principle has no inconsiderable weight in designating the federal courts, as the proper tribunals for the determination of controversies between different states and their citizens."1

1677. And here a most important question of a constitutional nature was formerly litigated; and that is, whether the jurisdiction given by the constitution in cases, in which a state is a party, extended to suits brought against a state, as well as by it, or was exclusively confined to the latter. It is obvious, that, if a suit could be brought by any citizen of one state against another state upon any contract, or matter of property, the state would be constantly subjected to judicial action, to enforce private rights against it in its sovereign capacity. Accordingly at a very early period numerous suits were brought against states by their creditors to enforce the payment of debts, or other claims. The question was ,made, and most elaborately considered in the celebrated case of Chisholm v. Georgia;2 and the majority of the Supreme Court held, that the judicial power under the constitution applied equally to suits brought by, and against a state. The learned judges, on that occa-
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  • 1 See also the remarks of Mr. Chief Justice Jay, in Chisholm v. Georgia, 2 Dall. R. 474, cited in the note, ante Vol. i. 488.
    2 2 Dall. R. 419; 8. C, 2 Peters's Cond. R. 635. See also 1 Kent's Comm, Lect. 14, p. 278, (2d edit. p. 296, 297;) Cohens v. Virginia 6 Wheat. R. 381.

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

sion, delivered seriatim opinions, containing the grounds of their respective opinions. It is not my intention to go over these grounds, though they are stated with great ability and legal. learning, and exhibit a very thorough mastery of the whole subject.1 The decision created general alarm among the states; and an amendment was proposed, and ratified by the states,2 by which the power was entirely taken away, so far as it regards suits brought against a state. It is in the following words: "The judicial power of the United States shall not be construed to extend to any suit in law, or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens, or subjects of any foreign state." This amendment was construed to include suits then pending, as well as suits to be commenced thereafter; and accordingly all the suits then pending were dismissed, without any further adjudication.3
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  • 1 Although the controversy is now ended, the opinions deserve a most attentive perusal, from their very able exposition of many constitutional principles. It is remarkable, that the Federalist (No. 81,) seems to have taken the opposite ground from tire majority of the judges, holding, that the states were not suable, but might themselves sue under this clause of the constitution.* I confess it seems to me difficult to reconcile this position with the reasoning on the same subject in the preceding number, (80,) a part of which is quoted in the text, ( 1676.) Mr. Justice Iredell, who dissented from the other judges of the Supreme Court, in Chisholm v. Georgia, put his opinion mainly on the ground, that it was a suit for a debt, for which no action lay, at least compulsively, at the common law against the crown. but at most, only a petition of right; and in America, whoever contracts with a state trusts to the good faith of the state. 2 In 1793; 3 Dall. R. 378. 3 Hollingsworth v. Virginia,
    3 Dall. R. 378. -- The history and reasons of this amendment are succinctly stated by Mr. Chief Justice Marshall, in Cohens v. Virginia, 6 Wheat. R. 406.

    * See also 9 Elliot's Deb. 390, 391,401, 405.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 549

1678. Since this amendment has been made, a question of equal importance has arisen; and that is, whether the amendment applies to original suits only brought against a state, leaving the appellate jurisdiction of the Supreme Court in its full vigour over all constitutional questions, arising in the progress of any suit brought by a state in any state court against any private citizen or alien. But this question will more properly come under review, when we are considering the nature and extent of the appellate jurisdiction of the Supreme Court. At present, it is only necessary to state, that it has been solemnly adjudged, that the amendment.applies only to original suits against a state; and does not touch the appellate jurisdiction of the Supreme Court to re-examine, on an appeal or writ of error, a judgment or decree rendered in any state court, in a suit brought originally by a state against any private person.1

1679. Another inquiry suggested by the original clause, as well as by the amendment, is, when a state is properly to be deemed a party to a suit, so as to avail itself of, or to exempt itself from, the operation of the jurisdiction conferred by the constitution. To such an inquiry, the proper answer is, that a state, in the sense of the constitution, is a party only, when it is on the record as such; and it sues, or is sued in its political capacity. It is not sufficient, that it may have an interest in a suit between other persons, or that its rights, powers, privileges, or duties, come therein incidentally in question. It must be in terms a plaintiff or defendant, so that the judgment, or decree may be binding upon it, as it is in common suits binding upon parties and privies. The point arose in
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  • 1 Cohens v. Virginia, 6 Wheat. R. 264.

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

an early state of the government, In a suit between private persons, where one party asserted the land in controversy to be in Connecticut and the other in New York; and the court held, that neither state could be considered as a party.1 It has been again discussed in some late cases; and the doctrine now firmly established is, that a state is not a party in the sense of the constitution, unless it appears on the record, as such, either as plaintiff or defendant. It is. not sufficient, that it may have an interest in the cause, or that the parties before the court are sued for acts done, as agents of the state.2 In short, the very immunity of a state from
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  • 1 Fowler v. Lindsey, 3 Dall. R. 411; 8. C. 1 Peters's Cond. R. 190, 191; State of New York v. State of Connecticut, 4 Dall. R. 1, 3 to 6; United States v. Peters, 5 Cranch's R. 115, 139; 1 Kent's Comm. Lect. 15, p. 302, (2d edit. p. 323.)
    2 The reasoning of Mr. Chief Justice Marshall in Osborn v. Bank of United States, (9 Wheat. R. 846, &c.) on this point is very full and satisfactory, and deserves to be cited at large. It is only necessary to premise, that the suit wan a bill in equity brought by the Bank of the United State against Osborn and others, as state officers, for an injunction and other relief, they having levied a tax of one hundred thousand dollars on certain property of the bank, under a state law of the state of Ohio. "We proceed now," said the Chief Justice, "to the 6th point made by the appellants, which is, that if any case is made in the bill proper for the interference of court of chancery it is against the state of Ohio, in which case the circuit court could not exercise jurisdiction.

    "The bill is brought, it is said, for the purpose of protecting the bank in the exercise of a franchise, granted by a law of tile United States, which franchise file state of Ohio asserts a right to invade, and is about to invade. It prays the aid of the court to restrain the officer of the state from executing the law. It is, then, a controversy between the bank and the state of Ohio. The interest of the state is direct and immediate, not consequential. The process of the court, though not directed against the state by name, acts directly upon it, by restraining its officers. The process, therefore, is substantially, though not in form. against the late, and tile court ought not to proceed without making the suite a party. If this cannot be done, the court cannot take jurisdiction of the cause.

    "The full pressure of this argument is felt, and the difficulties it presents are acknowledged. The direct interest of the state in the suit, as

CH. XXXVIII.] JUDICIARY--JURISDICTION. 551

being made a party, constitutes, or may constitute, a solid ground, why the suit should be maintained against other parties, who act as ha agents, or claim under its title; though otherwise, as the principal, it might be fit; that the state should be made a party upon the common principles of a court of equity.1
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  • brought, is admitted; and, had it been in the power of the bank to make it a party, perhaps no decree ought to have been pronounced in the cause, until the state was before the court. But this was not in the power of the bank. The eleventh amendment of the constitution has exempted a state from the suits of citizens of other states, or aliens; and the very difficult question is to be decided, whether, in such a case the court may act upon the agents employed by the state, and on the property in their hands.

    "Before we try this question by the constitution, it tony not be time misapplied, if we pause for a moment, and reflect on the relative situation of the Union with its members should the objection prevail.

    "A denial of jurisdiction forbids all inquiry into the nature of the case. It applies to cases perfectly clear in themselves; to cases, where the government is in the exercise of its best established and most essential powers, as well as to those, which may be deemed questionable. It asserts, that the agents of a state, alleging the authority of a law void in itself, because repugnant to the constitution, may arrest the execution of any law of the United States. It maintains, that, if a state shall impose a fine or penalty on any person employed in the execution of any law of the United States, it may levy that fine or penalty by a ministerial officer, without the sanction even of its own courts; and that the individual, though he perceives the approaching danger, can obtain no protection from the judicial department of the government. The carrier of the mail, the collector of the revenue, the marshal of a district, the recruiting officer, tony all be inhibited, under ruinous penalties, from the performance of their respective duties; the warrant of a ministerial officer may authorize the collection of these penalties; and the person thus obstructed in the performance of his duty, may indeed resort to his action for damages, after the infliction of the injury, but cannot avail himself of the preventive justice of the nation to protect him in the performance of his duties. Each member of the Union is capable, at its will, of


____________________________

  • 1 Osborn v. Bank of United States, 9 Wheat. R. 738, 838 to 845; Id. 846; The Governor of Georgia v. Madruzo, 1 Peters's Sup. R. 110, 111, 122.

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

1680. The same principle applies to cases, where a state has an interest in a corporation; as when it is a stockholder in an incorporated hank, the corporation is still suable, although the state, as such, is
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  • attacking the nation, of arresting its progress at every step, of acting vigorously and effectually in the execution of its designs, while the nation stands naked, stripped of its defensive armour, and incapable of shielding its agent, or executing its laws, otherwise than by proceedings which ere to take place alter the mischief in perpetrated and which must often be ineffectual, from the inability of the agents to make compensation.

    "These are said to be extreme cases; but the case at bar, had it been put by way of illustration in argument, might have been termed an extreme case; and, if a penalty on a revenue off car for performing his duty, be more obviously wrong. than a penalty on the bank, it is a difference in degree, not in principle. Public sentiment would be more shocked by the infliction of a penalty on a public officer for time performance of his duty, than by the infliction of this penalty on a bank, which, while carrying on the fiscal operations of the government, is also transacting its own business. But, in both cases, the officer levying the penalty acts under a void authority, and the power to restrain him is denied as positively in the one, as in the other.

    "The distinction between any extreme case, and that which has actually occurred, if, indeed, any difference of principle can be supposed to exist between them, disappears, when considering the question of jurisdiction; for, if the courts of the United States cannot rightfully protect the agents, who execute every law authorized by the constitution, from the direct action of state agents in the collection of penalties, they cannot rightfully protect those, who execute any law.

    "The question, then, is, whether the constitution of time United States has provided a tribunal, which cult peacefully and rightfully protect those, who are employed in carrying, into execution the laws of the Union, from the attempts of a particular state to resist the execution of those laws.

    "The state of Ohio denies tile existence of this power; and contends, that no preventive proceedings whatever, or proceedings against the very property, which may have been seized by time agent of a state, can be sustained against such agent, because they would be substantially against the state itself, in violation of the 11th amendment of the constitution.

    "That the courts of the Union cannot entertain a suit brought against a state by an alien, or the citizen of another States is not to be

CH. XXXVIII.] JUDICIARY--JURISDICTION. 553

exempted from any action.1 The state does not, by becoming a corporator, identify itself with the corporation. The bank, in such a case, is not the state, although the state holds an interest in it. Nor will it
________________________________

  • controverted. Is a suit, brought against an individual, for any cause whatever, a suit against a state, in the sense of the constitution?

    "The 11th amendment is the limitation of a power supposed to be granted in the original instrument; and to understand accurately the extent of the limitation, it seems proper to define the power that is limited. The words of the constitution, so far as they respect this question, are, 'The judicial power shall extend to controversies between two or more states, between a state end citizens of another state, and between a state and foreign states, citizens, or subjects.' A subsequent clause distributes the power previously granted, and assigns to the Supreme Court original jurisdiction in those cases, in which 'a state shall be a party.' The words of the 11th amendment are, 'The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or subjects of a foreign state.'

    "The bank of the United States contends, that in all cases, in which jurisdiction depends on the character of the party, reference is made to the party on the record, not to one, who may be interested, but is not shown by the record to be a party. The appellants admit, that. the jurisdiction of the court is not ousted by any incidental or consequential interest, which a state may have in the decision to be made, but is to be considered as a party, where the decision acts directly and immediately upon the state, through its officers.

    "If this question were to be determined on the authority of English decisions, it is believed, that no case can be adduced, where any person has been considered as a party, who is not made so in the record. But the court will not review those decisions, because it is thought a question growing out of the constitution of the United States, requires rather an attentive consideration of the words of that instrument, than of the decisions of analogous questions by the courts of any other country.

    "Do the provisions, then, of the American constitution, respecting controversies, to which a state may be a party, extend, on a fair construction of that instrument, to cases in which the state is not a party on the record? The first in the enumeration, is a controversy between two or more states. There are not many questions, in which a state would


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  • 1 United States Bank v. Planters' Bank of Georgia, 9 Wheat R. 904; Bank of Com'th of Kentucky v. Wister, 3 Peters's Sup. R. 318.

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

make any difference in the case, that the state has the sole interest in the corporation, if in fact it creates other persons corporators.1 An analogous case will be found in the authority, given by an act of congress
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  • be supposed to take a deeper or more immediate interest, than in those, which decide on the extent of her territory. Yet the constitution, not considering. the state as a party to such controversies, if not plaintiff or defendant on the record, has expressly given jurisdiction in those between citizens claiming lands under grants of different states. If each state, in consequence of the influence of a decision on her boundary, had been considered, by the framers of the constitution, as a party to that controversy, the express grant of jurisdiction would have been useless. The grant of it certainly proves, that tire constitution does not consider the state as a party in such a case. Jurisdiction is expressly granted, in those cases only, where citizens of the same state claim lands under grants of different states. If the claimants be citizens of different states, the court takes jurisdiction for that reason. Still, the right of the state to grant is the essential point in dispute; and in that point the state is deeply interested. If that interest converts the state into a party, there is an end of the cause; and the constitution will be construed to forbid the circuit courts to take cognizance of questions, to which it was thought necessary expressly to extend their jurisdiction, even when the controversy arose between citizens of the same state.

    "We are aware, that the application of these cases may be denied, because the title of the State comes on incidentally, and the appellants admit the jurisdiction of the court, where its judgment does not act directly upon the property or interests of the state; but we deemed it of some importance to show, that the framers of the constitution contemplated the distinction between cases, in which a state was interested, and those, in which it was a party, and made no provision for a case of interest, without being a party on the record. In cases, where a state is a party on the record, the question of jurisdiction is decided by inspection. If jurisdiction depend, not on this plain fact, but on the interest of the state, what rule has the constitution given, by which this interest is to be measured? If no rule be given, is it to be settled by the court? If so, the curious anomaly is presented of a court examining the whole testimony of a cause, inquiring into, and deciding on, the extent of a state's interest, without having a right to exercise any jurisdiction in the case. Can this inquiry be made without the exercise of jurisdiction?

    "The next in the enumeration is a controversy between a state and the citizens of another state. Can this case arise, if the state be not a


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  • 1 Bank of Com'th of Kentucky v. Wister, 3 Peters's Sup. R. 318.

C H. XXXVIII.] JUDICIARY--JURISDICTION. 555

to the postmaster-general, to bring suits in his official capacity. In such suits the United States are not understood to be a party, although the suits solely regard their interests. The postmaster-general does
_________________________________

  • party on the record? If it can, the question recurs, what degree of interest shall be sufficient to change the parties, and arrest the proceedings against the individual? Controversies respecting boundary have lately existed between Virginia and Tennessee, between Kentucky and Tennessee, and now exist between New-York and New-Jersey. Suppose, while such a controversy is pending, the collecting officer of one state should seize property for taxes belonging to a man, who supposes himself to reside in the other state, and who seeks redress in the federal court of that state, in which the officer resides. The interest of the state is obvious. Yet it is admitted, that in such a case the action would lie, because the officer might be treated as a trespasser, and the verdict and judgment against him would not act directly on the property of the state. That it would not so act, may, perhaps, depend on circumstances. The officer may retain the amount of the taxes in his hands, and, on the proceedings of the state against him, may plead in bar the judgment of a court of competent jurisdiction. If this plea ought to be sustained, and it is far from being certain, that it ought not, the judgment so pleaded would have acted directly on the revenue of the state in the hands of its officer. And yet the argument admits, that the action, in such a case, would be sustained. But, suppose, in such a case, the party conceiving himself to be injured, instead of bringing an action sounding in damages, should sue for the specific thing, while yet in possession of the seizing officer. It being admitted in argument, that the action sounding in damages would lie, we are unable to perceive the line of distinction between that and the action of detinue. Yet the latter action would claim the specific article seized for the tax, and would obtain it, should the seizure be deemed unlawful.

    "It would be tedious to pursue this part of the inquiry farther, and it would be useless, because every person will perceive, that the same reasoning is applicable to all the other enumerated controversies, to which a state may be a party. The principle may be illustrated by a reference to those other controversies, where jurisdiction depends on the party. But, before we review them, we will notice one, where the nature of the controversy is, in some degree, blended with the character of the party.

    "If a suit be brought against a foreign minister, the Supreme Court alone has original jurisdiction, and this is shown on the record. But, suppose a suit to be brought, which affects the interest of a foreign minister, or by which the person of his secretary, or of his servant, is arrest-

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

not, in such cases, sue under the clause giving jurisdiction, "in controversies, to which the United States shall be a party;" but under the clause extending the jurisdiction to cases arising under the laws of the United States.1
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  • ed. The minister does not, by the mere arrest of his secretary, or his servant, become a party to this suit, but the actual defendant pleads to the jurisdiction of the court, and asserts this privilege. If the suit affects a foreign minister, it must be dismissed, not because he is a party to it, but because it affects him. The language of the constitution in the two cases is different This court car. take cognizance of all cues 'affecting' foreign ministers; and, therefore, jurisdiction does not depend on the party named in the record. But this language changes, when the enumeration proceeds to states. Why this change? The answer is obvious. In the case of foreign ministers, it was intended, for reasons, which all comprehend, to give the national courts jurisdiction over all cases, by which they were in any manner affected. In the cue of States, whose immediate or remote interests were mixed up with a multitude of cases, and who might be affected in an almost infinite variety of ways, it was intended to give jurisdiction in those cues only, to which they were actual parties.

    "In proceeding with the cues, in which jurisdiction depends on the character of the party, the first in the enumeration is, 'controversies to which the United Stated shall be a party.' Does 'this provision extend to the cases, where the United States are not named in the record, but claim and are actually entitled to, the whole subject in controversy? Let us examine this question. Suits brought by the postmaster-general are for money dun to the United States. The nominal plaintiff has no interest in the controversy, and the United States are the only real party. Yet, these suits could not be instituted in the courts of the Union, under that clause, which gives jurisdiction in all cases, to which the United States are a party; and it was found necessary to give the court jurisdiction over them, as being cases arising under a law of the United States.

    "The judicial power of the Union is also extended to controversies between citizens of different States; and it has been decided, that the character of the parties must be shown on the record. Does this provision depend on the character of those, whose interest is litigated, or of those, who are parties on the record? In a suit, for example, brought by or against an executor, the creditors or legatees or his testator are


________________________

  • 1 Osborn v. Bank of United States, 9 Wheat. R. 855, 856; Postmaster General v. Early, 12 Wheat R. 136, 149.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 557

1681. The reasoning, by which the general doctrine is maintained, is to the following effect. It is a sound principle, that, when a government becomes a partner in any trading company, it divests itself, so far
_______________________________________

  • the persons really concerned in interest; but it has never been suspected, that, if the executor be a resident of another state, the jurisdiction of the federal courts could be ousted by the fact, that the creditors or legatees were citizens of the same state with the opposite party. The universally received construction in this case is, that jurisdiction is neither. given nor ousted by the relative situation of the parties concerned in interest, but by the relative situation of the parties named on the record. Why is this construction universal? No case can be imagined, in which the existence of an interest out of the party on the record is more unequivocal, than in that, which has been just stated. Why, then, is it universally admitted, that this interest in no manner affects the jurisdiction of the court? The plain and obvious answer is, because the jurisdiction of the court depends, not upon this interest, but upon the actual party on the record. Were a state to be the sole legatee, it will not, we presume, be alleged, that the jurisdiction of the court, in a suit against the executor, would be more affected by this fact, than by the fact, that any other person, not suable in the courts of the Union, was the sole legatee. Yet, in such a case, the court would decide directly and immediately on the interest of the state.

    "This principle might be further illustrated by showing, that jurisdiction, where it depends on the character of the party, is never conferred in consequence of the existence of an interest in a party not named; and by showing that, under the distributive clause of the 2d section of the 3d article, the Supreme Court could never take original jurisdiction, in consequence of an interest in a party not named in the record.

    "But the principle seems too well established to require, that more time should be devoted to it. It may, we think, be laid down as a rule, which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently, the 11th amendment, which restrains the jurisdiction granted by the constitution over suits against states, is, of necessity, limited to those suits, in which a state is a party on the record. The amendment has its full effect, if the constitution be construed, as it would have been construed, had the jurisdiction of the court never been extended to suits brought against a state, by the citizens of another state, or by aliens. The state not being a party on the record, and the court having jurisdiction over those, who are parties on the record, the true question is, not one of jurisdiction, but whether, in the exercise of its jurisdiction, the court ought to make a decree against the defendants; whether they are to be considered as having a real interest, or as being only nominal parties."

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

as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and prerogatives, it descends to a level with those, with whom it associates itself, and takes the character, which belongs to its associates, and to the business, which is transacted. Thus, many states in the Union, which have an interest in banks, are not suable even in their own courts. A state, which establishes a bank, and becomes a stockholder in it, and gives it a capacity to sue and be sued, strips itself of its sovereign character, so far as respects the transactions of the bank, and waives all the privileges of that character. As a member of a corporation, a government never exercises its sovereignty. It acts merely, as a corporator; and exercises no other power in the management of the affairs of the corporation, than are expressly given by the incorporating act. The United States held shares in the old bank of the United States; but the privileges of the government were not imparted by that circumstance to the bank. The United States were not a party to suits, brought by or against the bank, in the sense of the constitution. So, with respect to the present bank, suits brought by or against it are not understood to be brought by or against the United States. The government, by becoming a corporator, lays down its sovereignty, so far as respects the transactions of the corporation; and exercises no power or privilege, which is not derived from the charter.1 The reasoning admits of further illustration. A corporation is itself, in legal contemplation, an artificial person, having a distinct
_________________________

  • 1 United States Bank v. Planters' Bank of Georgia, 9 Wheat. R. 907, 908.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 559

and independent existence from that of the persons composing it. It is this personal, political, and artificial existence, which gives it the character of a body politic or corporate, in which may be vested peculiar powers and attributes, distinct and different from those belonging to the natural persons composing it.1 Thus, the corporation may be perpetual, although the individuals composing it may in succession die. It may have privileges, and immunities, and functions, which do not, and cannot lawfully belong to individuals. It may exercise franchises, and transact business prohibited to its members, as individuals. The capacity to sue and be sued belongs to every corporation; and, indeed, is a function incident to it, independent of any special grant, because necessary to its existence.2 It sues and is sued, however, not in the names of its members, but in its own name, as a distinct person. It acts, indeed, by and through its members, or other proper functionaries; but still the acts are its own, and not the private acts of such members or functionaries. The members are not only not parties to its suits in any legal sense, but they may sue it, or be sued by it, in any action, exactly as any stranger may sue it, or be sued by it. A state may sue a bank, in which it is a stockholder, just as any other stockholder may sue the same bank. The United States may sue the bank of the United States, and entitle themselves to a judgment for any debt due to them; and they may satisfy the execution, issuing on such a judgment, out of any property of the bank. Now it is plain, that this could not be done, if the state, or the United States, or any other stockholder
________________________

  • 1 See 1 Black. Comm. ch. 18, p. 467, 471, 475, 477.
    2 1 Black. Comm. 475, 476.

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

were deemed a party to the record. It would be past all legal comprehension, that a party might sue himself, and be on both sides of the controversy. So, that any attempt to deem a state a party to a suit, simply because it has an interest in a suit, or is a stockholder in a corporation on the record, would be to renounce all ordinary doctrines of law applicable to such cases. The framers of the constitution must be presumed, in treating of the judicial department, to have used language in the sense, and with the limitations belonging to it in judicial usage. They must have spoken according to known distinctions, and settled rules of interpretation, incorporated into the very elements of the jurisprudence of every state in the Union.

1682. It may, then, be laid down, as a rule, which admits of no exception, that in all cases under the constitution of the United States, where jurisdiction depends upon. the party, it is the party named on the record. Consequently the amendment above referred to, which restrains the jurisdiction granted by the constitution over suits against states, is of necessity limited to those suits, in which a state is a party on the record. The amendment has its full effect, if the constitution is construed, as it would have been construed, had the jurisdiction never been extended to suits brought against a state by the citizens of another state, or by aliens.1

1683. It has been doubted, whether this amendment extends to cases of admiralty and maritime juris-
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  • 1 Osborn v. United States Bank, 9 Wheat. R. 857, 858; The Governor of Georgia v. Madrazo, 1 Peters's Sup. R. 110, 122. -- A state may be properly deemed a party, when it sues, or is sued by process, by or against the governor of the state in his official capacity. The Governor of Georgia v. Madrazo, 1 Peters's Sup. R. 110, 121 to 124.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 561

diction, where the proceeding is in rein, and not in personam, There, the jurisdiction of the court is founded upon the possession of the thing; and if the state should interpose a claim for the property, it does not act merely in the character of a defendant, but as an actor. Besides; the language of the amendment is, that "the judicial power of the United States shall not be construed to extend to any suit in law or equity." But a suit in the admiralty is not, correctly speaking, a suit in law, or in equity; but is often spoken of in contradistinction to both.1

1684. Next. "Controversies between citizens of different states." Although the necessity of this power may not stand upon grounds quite as strong, as some of the preceding, there are high motives of state policy and public justice, by which it can be clearly vindicated. There are many cases, in which such a power may be indispensable, or in the highest degree expedient, to carry into effect some of the privileges and immunities conferred, and some of the prohibitions upon states expressly declared, in the constitution. For example; it is declared, that the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states. Suppose an attempt is made to evade, or withhold these privileges and immunities, would it not be right to allow the party aggrieved an opportunity of claiming them, in a contest with a citizen of the state, before a tribunal, at once national and impartial?2 Suppose a state should pass a tender law,
__________________________

  • 1 See United States v. Blight, 3 Hall's Law Journal, 197, 225; "The Governor of Georgia v. Madrazo, 1 Peters's Sop. R. 124, and Id. 128, 129, 130, 131, 132, 133, the Opinion of Mr. Justice Johnson; United States v. Peters, 5 Cranch's R. 115, 139, 140.
    2 The Federalist, No. 80; Id. No. 42.

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

or law impairing the obligation of private contracts, or should in the course of its legislation grant unconstitutional preferences to its own citizens, is it not clear, that the jurisdiction to enforce the obligations of the constitution in such cases ought to be confided to the national tribunals? These cases are not purely imaginary. They have actually occurred; and may again occur, under peculiar circumstances, in the course of state legislation.1 What was the fact under the confederation? Each state was obliged to acquiesce in the degree of justice, which another state might choose to yield to its citizens.2 There was not only danger of animosities growing up from this source; but, in point of fact, there did grow up retaliatory legislation, to meet ' such real or imagined grievances.

1685. Nothing can conduce more to general harmony and confidence among all the states, than a consciousness, that controversies are not exclusively to be decided by the state tribunals; but may, at the election of the party, be brought before the national tribunals. Besides; it cannot escape observation, that the judges in different states hold their offices by a very different tenure. Some hold during good behaviour; some for a term of years; some for a single year; some are irremovable, except upon impeachment; and others may be removed upon address of the legislature. Under such circumstances it cannot but be presumed, that there may arise a course of state policy, or state legislation, exceedingly injurious to the interests of the citi-
______________________________

  • 1 See 2 Elliot's, Debates, 391, 392, 401,406; 3 Elliot's Debates, 142, 144, 277, 282.
    2 See Chisholm v. Georgia, 2 Dall. R. 474, 475, 476, per Mr. Chief Justice Jay; The Federalist, No. 80; 3 Elliot's Debates, 142, 144, 277, 282; Martin v. Hunter, 1 Wheat. R. 346, 347.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 563

zens of other states, both as to real and personal property. It would require an uncommon exercise of candour or credulity to affirm, that in cases of this sort all the state tribunals would be wholly without state prejudice, or state feelings; or, that they would be as earnest in resisting the encroachments of state authority upon the just rights, and interests of the citizens of other states, as a tribunal differently constituted, and wholly independent of state authority. And if justice should be as fairly and as firmly administered in the former, as in the latter, still the mischiefs would be most serious, if the public opinion did not indulge such a belief. Justice, in cases of this sort, should not only be above all reproach, but above all suspicion. The sources of state irritations and state jealousies are sufficiently numerous, without leaving open one so copious and constant, as the belief, or the dread of wrong in the administration of state justice.i Besides; if the public confidence should continue to follow the state tribunals, (as in many cases it doubtless will,) the provision will become inert and harmless; for, as the party will have his election of the forum, he will not be inclined to desert the state courts, unless for some sound reason, founded either in the nature of his cause, or in the influence of state prejudices.2 On the other hand, there can be no real danger of injustice to the other side in the decisions of the national tribunals; because the cause must still be decided upon the true principles of the local law, and not by any foreign jurisprudence.3
________________________

  • 1 See The Federalist, No. 80; 4 Dall. 474, 475, 476, per Mr. Chief Justice Jay; l Kent's Comm. Lect. 14, p. 276, (2 edit. p. 296); 3 Elliot's Debates, 141, 142, 144.
    2 See Rawle on Const. ch. 31, p. 204; 3 Elliot's Deb. 381, 382.
    3 2 Elliot's Debates, 401, 402, 406.

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

There is another circumstance of no small importance, as a matter of policy; and that is, the tendency of such a power to increase the confidence and credit between the commercial and agricultural states. No man can be insensible to the value, in promoting credit, of the belief of there being a prompt, efficient, and impartial administration of justice in enforcing contracts.1

1686. Such are some of the reasons, which are supposed to have influenced the convention in delegating jurisdiction to the courts of the United States in cases between citizens of different states. Probably no part of the judicial power of the Union has been of more practical benefit, or has given more lasting satisfaction to the people. There is not a single state, which has not at some time felt the influence of this conservative power; and the general harmony, which exists between the state courts and the national courts, in the concurrent exercise of their jurisdiction in cases between citizens of different states, demonstrates the utility, as well as the safety of the power. Indeed; it is not improbable, that the existence of the power has operated, as a silent, but irresistible check to undue state legislation; at the same time, that it has cherished a mutual respect and confidence between the state and national courts, as honourable, as it has been beneficent.

1687. The next inquiry growing out of this part of the clause is, who are to be deemed citizens of different states within the meaning of it. Are all persons born within a state to be always deemed citizens of that state, notwithstanding any change of domicil; or does their citizenship change with their change of dom-
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  • 1 2 Elliot's Debates, 392, 406; 3 Elliot's Debates, 144; Id. 282.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 565

icil? The answer to this inquiry is equally plain and satisfactory. The constitution having declared, that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states, every person, who is a citizen of one state, and removes into another, with the intention of taking up his residence and inhabitancy there, becomes ipso facto a citizen of the state, where he resides; and he then ceases to be a citizen of the state, from which he has removed his residence. Of course, when he gives up his new residence or domicil, and returns to his native, or other state residence or domicil, he reacquires the character of the latter. What circumstances shall constitute such a change of residence or domicil, is an inquiry, more properly belonging to a treatise upon public or municipal law, than to commentaries upon constitutional law. In general, however, it may be said, that a removal from one state into another, animo manendi, or with a design of becoming an inhabitant, constitutes a change of domicil, and of course a change of citizenship. But a person, who is a native citizen of one state, never ceases to be a citizen thereof, until he has acquired a new citizenship elsewhere. Residence in a foreign country has no operation upon his character, as a citizen, although it may, for purposes of trade and commerce, impress him with the character of the country.1 To change allegiance is one thing; to change inhabitancy is quite another thing. The right and the power are not co-extensive in each case.2 Every citizen of a state is ipso facto a citizen of the United States.3
__________________________

  • 1 See 1 Kent's Comm. Lect. 4.
    2 See Rawle on Const. ch. 9, p. 87 to 100.
    3 Rawle on Const. ch. 9, p. 85, 86.

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

1688. And a person, Who is a naturalized citizen of the United States, by a like residence in any state in the Union, becomes ipso facto a citizen of that state. So a citizen of a territory of the Union by a like residence acquires the character of the state, where he resides.1 But a naturalized citizen of the United States, or a citizen of a territory, is not a citizen of a state, entitled to sue in the courts of the United States in virtue of that character, while he resides in any such territory, nor until he has acquired a residence or domicil in the particular state.2

1689. A corporation, as such, is not a citizen of a state in the sense of the constitution. But, if all the members of the corporation are citizens, their character will confer jurisdiction; for then it is substantially a suit by citizens suing in their corporate name.3 And a citizen of a state is entitled to sue, as such, notwithstanding he is a trustee for others, or sues in autre droit, as it is technically called; that is, as representative of another. Thus, a citizen may sue, who is a trustee at law, for the benefit of the person entitled to the trust. And an administrator, and executor may sue for the benefit of the estate, which they represent; for in each of these cases it is their personal suit.4 But if citizens, who are parties to a suit, are merely nominally so; as, for instance, if magistrates are officially required to
________________________________

  • 1 See Gassies v. Ballon, 6 Peters's Sup. R. 761.
    2 Hepburn v. Elszey, 2 Cranch's 448; Corporation of New-Orleans, v. Winter, 1 Wheat. R. 91; 1 Kent's Comm. Lect. 17, p. 360, (2 edition, p. 384.)
    3 Hope Insurance Company v. Boardman, 5 Cranch, 57; Bank of United States v. Deveaux, 5 Cranch, 61; United States v. Planters Bank, 9 Wheat. R. 410.
    4 (-- this foot note unreadable --)

CH. XXXVIII.] JUDICIARY--JURISDICTION. 567

allow suits to be brought in their names for the use or benefit of a citizen or alien, the latter are deemed the substantial parties entitled to sue.1

1690. Next. "Controversies between citizens of the same state, claiming lands under grants of different states." This clause was not in the first draft of the constitution, but was added without any known objection to its propriety.2 It is the only instance, in which the constitution directly contemplates the cognizance of disputes between citizens of the same state;3 but certainly not the only one, in which they may indirectly upon constitutional questions have the benefit of the judicial power of the Union.4 The Federalist has remarked, that the reasonableness of the agency of the national courts in cases, in which the state tribunals cannot be supposed to be impartial, speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause, in respect to which he has the least interest or bias. "This principle has no inconsiderable weight in designating the federal courts, as the proper tribunals for the determination of controversies between different states and their citizens. And it ought to have the same operation in regard to some cases between citizens of the same state. Claimsto land under grants of different states, founded upon adverse pretensions of boundary, are of this description. The courts of neither of the granting states could be expected to be unbiassed. The laws may have even prejudged the question; and tied the courts down to decisions in favour of the grants of the state, to which they belonged.
______________________

  • 1 Brown v. Strode, 5 Cranch, 303.
    2 Journal of Convention, 226, 300.
    3 The Federalist. No. 80.
    4 Cohens v. Virginia, 6 Wheat. R. 390, 391, 392.

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

And where this has not been done, it would be natural, that the judges, as men, should feel a strong predilection for the claims of their own government.1 And, at all events, the providing of a tribunal, having no possible interest on the one side, more than the other, would have a most salutary tendency in quieting the jealousies, and disarming the resentments of the state, whose grant should be held invalid. This jurisdiction attaches not only to grants made by different states, which were never united; but also to grants made by different states, which were originally united under one jurisdiction, if made since the separation, although the origin of the title may be traced back to an antecedent period.2

1691. Next. "Controversies between a state, or the citizens thereof, and foreign states, citizens, or subjects." The Federalist3 has vindicated this provision in the following brief, but powerful manner: "The peace of the whole ought not to be left at the disposal of a part. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts is with reason classed among the just causes of war, it will follow, that the federal judiciary ought to have cognizance of all causes, in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the
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  • 1 The Federalist, No. 80. See also Mr.Chief Justice Jay's Remarks, 4 Dall. 476, and ante vol. 3, 1632.
    2 Town of Pawlet v. Clarke, 9 Cranch, 292; Colson v. Lewis, 2 Wheat. R. 377.
    3 The Federalist, No. 80. See also 3 Elliot's Debates, 283; 2 Elliot's Debates, 391.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 569

security of the public tranquillity. A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations, and those, which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction; the latter for tim of the states. But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign as well as one, which violated the stipulations of a treaty, or the general law of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion, and those of the other. So great a proportion of the controversies, in which foreigners are parties, involve national questions, that it is by far the most safe, and most expedient, to refer all those, in which they are concerned, to the national tribunals."

1692. In addition to these suggestions, it may be remarked, that it is of great national importance to advance public, as well as private credit, in our intercourse with foreign nations and their subjects. Nothing can be more beneficial in this respect, than to create an impartial. tribunal, to which they may have resort upon all occasions, when it may be necessary to ascertain, or enforce their rights.1 Besides; it is not
__________________________

  • 1 3 Elliot's Debates, 149, 143, 144, 282, 283. -- It is notorious, that this jurisdiction has been very satisfactory to foreign nations and their subjects. Nor have the dangers of state prejudice, and state attachment to local interests, to the injury of foreigners, been wholly imaginary. It has been already stated in another place, that the debts due to British subjects before the revolution, were never recovered, until after the adop-

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

wholly immaterial, that the law to be administered in cases of foreigners is often very distinct from the mere municipal code of a state, and dependent upon the law merchant, or the more enlarged consideration of international rights and duties, in a case of conflict of the foreign and domestic laws.1 And it may fairly be presumed, that the national tribunals will, from the nature of their ordinary functions, become better acquainted with the general principles, which regulate subjects of this nature, than other, courts, however enlightened, which are rarely required to discuss them.

1693. In regard to controversies between an American and a foreign state, it is obvious, that the suit must, on one side at least, be wholly voluntary. No foreign state can be compelled to become a party, plaintiff or defendant, in any of our tribunals.2 If, therefore, it chooses to consent to the institution of any suit, it is its consent alone, which car give effect to the jurisdiction of the court. It is certainly desirable to furnish some peaceable mode of appeal in cases, where any controversy may exist between an American and a foreign state, sufficiently important to require the grievance to be redressed by any other mode, than through the instrumentality of negotiations.3

1694. The inquiry may here be made, who are to be deemed aliens entitled to sue in the courts of the United States. The general answer is, any person, who is not a citizen of the United States. A foreigner, who is naturalized, is no longer entitled to the character
_____________________________

  • tion of the constitution, by suits brought in the national courts. See Ware v. Hylton, 3 Dall. R. 199.
    • 1 See 1 Tucker's Black. Comm. App. 421; 3 Elliot's Deb. 282, 283
      2 See 2 Elliot's Deb. 391, 407; Foster v. Nelson, 2 Peters's R. 254, 307.
      3 See 3 Elliot's Debates, 282, 283.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 571

of an alien.1 And when an alien is the substantial party, it matters not, whether he is a suitor in his own right; or whether he acts, as a trustee, or personal representative; or whether he is compellable by the local law to sue through some official organ.2 A foreign corporation, established in a foreign country, all of whose members are aliens, is entitled to sue in the same manner, that an alien may personally sue in the courts of the Union.3 It is not sufficient to vest the jurisdiction, that an alien is a party. to the suit, unless the other party be a citizen.4 British subjects, born before the American revolution, are to be deemed aliens; and may sue American citizens, born before the revolution, as well as those born, since that period. The revolution severed the ties of allegiance; and made the inhabitants of each country aliens to each other.5 In relation to aliens, however, it should be stated, that they have a right to sue only, while peace exists between their country and our own. For if a war breaks out, and they thereby become alien enemies, their right to sue is suspended, until the return of peace.6
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  • 1 Mr. Tucker supposes, that the several states still retain the power of admitting aliens to become denizens of the state; but that they do not thereby become citizens. (1 Tuck. Black. Comm. App. 365.) What he means by denizens, he has not explained. If be means, that the states may naturalize, so far as to make an alien a citizen of the state, that may be well questioned. If he means only, that they may enable aliens to hold lands, and enjoy certain other qualified privileges within the state, that will not be denied.
    2 Chappedelaine v. De Chenaux, 4 Cranch, 306; Brown v. Strode, 5 Cranch, E. 303.
    3 Society for Propagating the Gospel v. Town of New-Haven, 8 Wheat. R. 464. 4 Jackson v. Twentyman, 2 Peters's Sup. R. 136.
    5 Dawson's Lessee v. Godfrey, 4 Cranch, 321; Blight's Lessee v. Rochester, 7 Wheat. R. 535; IagIis v. Trustees of Sailors Snug Harbour, 3 Peters's Sup. R. 126.
    6 1 Kent's Comm. Lect. 3, p. 64, 65, (2 edition, p. 68, 69.)

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

1695. We have now finished our review of the classes of cases, to which the judicial power of the United States extends. The next inquiry naturally presented is, in what mode it is to be exercised, and in what courts it is to be vested. The succeeding clause of the constitution answers this inquiry. It is in the following words. "In all cases affecting ambassadors, other public ministers, and consuls, and those, in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, 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."1

1696. The first remark arising out of this clause is, that, as the judicial power of the United States extends to all the cases enumerated in the constitution, it may extend to .all such cases in any form, in which judicial power may be exercised. It may, therefore, extend to them in the shape of original, or appellate jurisdiction, or both; for there is nothing in the nature of the cases, which binds to the exercise of the one in
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  • 1 In the first draft of the constitution, the words stood thus. "In cases of impeachment, eases affecting ambassadors, other public ministers, and consuls, and those, in which a state shall be a party, this jurisdiction (of the Supreme Court) shall be original. In all other cases before mentioned, it shall be appellate, with such exceptions and under such regulations, as the legislature may make. The legislature may assign any part of the jurisdiction above mentioned, (except the trial of the president of the United States) in the manner and under the limitations, which it shall think proper, to such inferior courts, as it shall constitute from time to time." It was varied to its present form by successive votes, in which there was some difference of opinion. Journal of Convention, p. 226, 227, 299, 300, 301.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 573

preference to the other.1 But it is clear, from the language of the constitution, that, in one form or the other, it is absolutely obligatory upon congress, to vest all the jurisdiction in the national courts, in that class of cases at least, where it has declared, that it shall extend to "all cases."2

1697. In the next place, the jurisdiction, which is by the constitution to be exercised by the Supreme Court in an original form, is very limited, and extends only to cases affecting ambassadors, and other public ministers, and consuls, and cases, where a state is a party. And congress cannot constitutionally confer on it any other, or further original jurisdiction. This is one of the appropriate illustrations of the rule, that the affirmation of a power in particular cases, excludes it in all others. the clause itself would otherwise be wholly inoperative and nugatory. If it had been intended to leave it to the discretion of congress, to apportion the judicial power between the supreme and inferior courts, according to the will of that body, it would have been useless to have proceeded further, than to define the judicial power, and the tribunals, in which it should be vested. Affirmative words often, in their operation, imply a negative of other objects, than those affirmed; and in this case a negative, or exclusive sense, must be given to the words, or they have no operation at all. If the solicitude of the convention, respecting our peace with foreign powers, might induce a provision to be made, that the Supreme Court should have original jurisdiction in cases, which might
___________________________

  • 1 Martin v. Hunter, 1 Wheat. R. 333, 337, 338; Osborn v. Bank of United, States, 9 Wheat. R. 820, 821.
    2 Id. p. 328, 330, 3:16. -- Upon this subject them is considerable discussion, in the case of Martin v. Hunter, (1 Wheat. R. 304, 313.)

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

be supposed to affect them; yet the clause would have proceeded no further, than to provide for such cases, unless some further restriction upon the powers of congress had been intended. The direction, that the Supreme Court shall have appellate jurisdiction in all cases, with such exceptions, as congress shall make, will be no restriction, unless the words are to be deem ed exclusive of original jurisdiction.1 And accordingly, the doctrine is firmly established, that the Supreme Court cannot constitutionally exercise any original jurisdiction, except in the enumerated cases. If congress should confer it, it would be a mere nullity.2

1698. But although the Supreme Court cannot exercise original jurisdiction in any cases, except those 'specially enumerated, it is certainly competent for congress to vest in any inferior courts of the United States original jurisdiction of all other cases, not thus specially assigned to the Supreme Court; for there is nothing in the constitution, which excludes such inferior courts from the exercise of such original jurisdiction. Original jurisdiction, so far as the constitution gives a rule, is co-extensive with the judicial power; and except, so far as the constitution has made any distribution of it among the courts of the United States, it remains
__________________________

  • 1 Marbury v. Madison, 1 Cranch, R. 174, 175; Wiscart v. Dauchy, 3 Dall R. 321; Cohens v. Virginia, 6 Wheat. R. 392 to 395; Id. 400, 401; Osborn v. Bank of United States, 9 Wheat. R. 820, 821.
    2 Id. ibid. 1 Kent. Comm. Lect. 15, p. 294, 301, (2d edition, 314, 322;) Wiscart v. Dauchy, 3 Dall. R. 321. -- Congress, by the judiciary act of 1789, ch. 29, 13, did confer on the Supreme Court the authority to issue writs of mandamus, in cases warranted by the principles and usages of law to persons holding office under the authority of the United States. But the Supreme Court, in. 1801, held the delegation of power to be a mere nullity. Marbury v. Madison, 1 Cranch, R. 137, 173 to 180.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 575

to be exercised in an original, or appellate form, or both, as congress may in their wisdom deem fit. Now, the constitution has made no distribution, except of the original and appellate jurisdiction of the Supreme Court. It has no where insinuated, that the inferior tribunals shall have no original jurisdiction. It has no where affirmed, that they shall have appellate jurisdiction. Both are left unrestricted and undefined. Of course, as the judicial power is to be vested in the supreme and inferior courts of the Union, both are under the entire control and regulation of congress.1

1699. Indeed, it has been a matter of much question, whether the grant of original jurisdiction to the Supreme Court, in the enumerated cases, ought to be construed to give to that court exclusive original jurisdiction, even of those cases. And it has been contended, that there is nothing in the constitution, which warrants the conclusion, that it was intended to exclude the inferior courts of the Union from a concurrent original jurisdiction.2 The judiciary act of 1789, (ch. 20, 11, 13,) has manifestly proceeded upon the supposition, that the jurisdiction was not exclusive; but, that concurrent original jurisdiction in those cases might be vested by congress in inferior courts.3 It has been strongly intimated, indeed, by the highest tribunal, on more than one occasion, that the original jurisdiction of the Supreme Court in those cases is exclusive;4 but
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  • 1 Martin v. Hunter, 1 Wheat R. 337, 338; Osborn v. Bank of Untied States, 9 Wheat. R. 820, 821; Cohens v. Virginia, 6 Wheat R. 395, 396.
    2 United States v. Rayart, 2 Dall. R. 297; Chisholm v. Georgia, 2 Dall. R. 419, 431, 436, per Iredell J. Sergeant on Const. ch. 2.
    3 1 Kent. Comm. Lect 15, p. 294, 295, (2d edition, p. 314, 315.)
    4 See Marbury v. Madison, 1 Cranch, R. 137; Martin v. Hunter

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

the question remains to this hour Without any authoritative decision.1

1700. Another question of a very different nature is, whether the Supreme Court can exercise appellate jurisdiction in the class of cases, of which original jurisdiction is delegated to it by the constitution; in other words, whether the original jurisdiction excludes the appellate; and so, e converso, the latter implies a negative of the former. It has been said, that the very distinction taken in the constitution, between original and appellate jurisdiction, presupposes, that where the one can be exercised, the other cannot. For example, since the original jurisdiction extends to cases, where a state is a party, this is the proper form, in which such cases are to be brought before the Supreme Court; and, therefore, a case, where a state is a party, cannot be brought before the court, in the exercise of its appellate jurisdiction; for the affirmative here, as well as in the cases of original jurisdiction, includes a negative of the cases not enumerated.

1701. If the correctness of this reasoning were admitted, it would establish no more, than that the Supreme Court could not exercise appellate jurisdiction in cases, where a state is a party. But it would by no means establish the doctrine, that the judicial power of the United States did not extend, in an appellate form, to such cases. The exercise of appellate jurisdiction is far from being limited, by the terms of the constitution, to the Supreme Court. There can be no
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  • 1 Wheat. R. 337, 338; Osborn v. Bank of United States, 9 Wheat. R. 820, 821; I Kent's Comm. Lect. 15, p. 294, 235, (2d edition, p. 314, 315;) Cohens v. Virginia, 6 Wheat. R. 395, 396, 397.
    • 1 United Stales v. Ortega, II Wheat. R. 467; Cohens v. Virginia, 6 Wheat R. 396, 397.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 577

doubt, that congress may create a succession of inferior tribunals, in each of which it may vest appellate, as well as original jurisdiction. This results from the very nature of the delegation of the judicial power in the constitution. It is delegated in the most general terms; and may, therefore, be exercised under the authority of congress, under every variety of form of original and appellate jurisdiction. There is nothing in the instrument, which restrains, or limits the power; and it must, consequently, subsist in the utmost latitude, of which it is in its nature susceptible.1 The result then would be, that, if the appellate jurisdiction over cases, to which a state is a party, could not, according to the terms of the constitution, be exercised by the Supreme Court, it might be exercised exclusively by an inferior tribunal. The soundness of any reasoning, which would lead us to such a conclusion, may well be questioned.2
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  • 1 Martin v. Hunter, l Wheat. R. 337, 318; Osborn v. Bank of United States, 9 Wheat. R. 820, 821; Cohens v. Virginia, 6 Wheat. R. 392 to 396.
    2 The Federalist, No. 82, has spoken of the right of congress to vest appellate jurisdiction in the inferior courts of the United States from state courts, (for it had before expressly affirmed that of the Supreme Court in such cases) in the following terms. "But could an appeal be made to lie from the state courts to the subordinate federal judicatories? This is another of the questions, which have been raised, and of greater difficulty, than the former. The following considerations countenance the affirmative. The plan of the convention, in the first place, authorizes the, national legislature to constitute tribunals, inferior to the Supreme Court. It declares, in the next place, that 'the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts, as congress shall ordain and establish;' and it then proceeds to enumerate the cases, to which this judicial power shall extend. It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition of that of the subordinate courts. The only outlines described for them are, that they shall

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

1702. But the reasoning itself is not well founded. It proceeds upon the ground, that, because the character of the party alone, in some instances, entitles the Supreme Court to maintain original jurisdiction, without any reference to the nature of the case, therefore, the character of the case, which in other instances is made the very foundation of appellate jurisdiction, cannot attach. Now, that is the very point of controversy. It is not only not admitted, but it is solemnly denied. The argument might just as well, and with quite as much force, be pressed in the opposite direction. It might be said, that the appellate jurisdiction is expressly extended by the constitution to all cases in law and equity, arising under the constitution, laws, and treaties of the United States, and, therefore, in no such cases could the Supreme Court exercise original jurisdiction, even though a state were a party.

1703. But this subject has been expounded in so masterly a manner by Mr. Chief Justice Marshall, in delivering the opinion of the Supreme Court in a very celebrated case,1 that it will be more satisfactory to
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  • be 'inferior to the Supreme Court,' and that they shall not exceed the specified limits of the federal judiciary. Whether their authority shall be original, or appellate, or both, is not declared. All this seems to be left to the discretion of the legislature. And this being the case, I perceive at present no impediment to the establishment of an appeal from the state courts to the subordinate national tribunals; and many advantages, attending the power of doing it, may be imagined. It would diminish the motives to the multiplication of federal courts, and would admit of arrangements, calculated to contract the appellate jurisdiction of the Supreme Court. The state tribunals may then be left with a more entire charge of federal causes; and appeals, in most cases, in which they may be deemed proper, instead of being carried to the Supreme Court, may be made to lie from the state courts to district.courts of the Union."
    • 1 Cohens v. Virginia, 6 Wheat. R. 264, 392, et seq.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 579

give the whole argument in his own language. "The constitution" (says he,) "gives the Supreme Court original jurisdiction in certain enumerated cases, and gives it appellate jurisdiction in all others. Among those, in which jurisdiction must be exercised in the appellate form, are cases arising under the constitution and laws of the United States. These provisions of the constitution are equally obligatory, and are to be equally respected. If a state be a party, the jurisdiction of this court is original; if the case arise under the constitution, or a law, the jurisdiction is appellate. But a case, to which a state is a party, may arise under the constitution, or a law of the United States. What rule is applicable to such a case? What, then, becomes the duty of the court? Certainly, we think, so to construe the constitution, as to give effect to both provisions, as far as it is possible to reconcile them, and not to permit their seeming repugnancy to destroy each other. We must endeavour so to construe them, as to preserve the true intent and meaning of the instrument.

1704. "In one description of cases, the jurisdiction of the court is founded entirely on the character of the parties; and the nature of the controversy is not contemplated by the constitution. The character of the parties is every thing, the nature of the case nothing. In the other description of cases, the jurisdiction is founded entirely on the character of the case, and the parties are not contemplated by the constitution. In these, the nature of the case is every thing, the character of the parties nothing. When, then, the constitution declares the jurisdiction in cases, where a state shall be a party, to be original, and in all cases arising under the constitution, or a law, to be appellate, the

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

conclusion seems irresistible, that its framers designed to include in the first class those cases, in which jurisdiction is given, because a state is a party; and to include in the second those, in which jurisdiction is given, because the case arises under the constitution, or a law. This reasonable construction is rendered necessary by other considerations. That the constitution, or a law of the United States, is involved in a case, and makes a part of it, may appear in the progress of a cause, in which the courts of the Union, but for that circumstance, would have no jurisdiction, and which of consequence could not originate in the Supreme Court. In such a case, the jurisdiction can be exercised only in its appellate form. To deny its exercise in this form is to deny its existence, and would be to construe a clause, dividing the power of the Supreme Court, in such manner, as in a considerable degree to defeat the power itself. All must perceive, that this construction can be justified, only where it is absolutely necessary. We do not think the article under consideration presents that necessity.

1705. "It is observable, that in this distributive clause no negative words are introduced. This observation is not made for the purpose of contending, that the legislature may 'apportion the judicial power between the supreme and inferior courts, according to its will.' That would be, as was said b.y this court in the case of Marbury v. Madison, to render the distributive clause 'mere surplusage,' to make it 'form without substance.' This cannot, therefore, be the true construction of the article. But although the absence of negative words will not authorize the legislature to disregard the distribution of the power previously granted, their absence will justify a sound

CH. XXXVIII.] JUDICIARY--JURISDICTION. 581

construction of the whole article, so as to give every part its intended effect. It is admitted, that 'affirmative words are often, in their operation, negative of other objects, than those affirmed;' and that where 'a negative or exclusive sense, must be given to them, or they have no operation at all,' they must receive that negative, or exclusive sense. But where they have full operation without it; where it would destroy some of the most important objects, for which the power was created; then, we think, affirmative words ought not to be construed negatively.

1706. "The constitution declares, that in cases, where a state is a party, the Supreme Court shall have original jurisdiction; but does not say, that its appellate jurisdiction shall not be exercised in cases, where, from their nature, appellate jurisdiction is given, whether a state be, or be not a party.1 It may be conceded, that where the case is of such a nature, as to admit of its originating in the Supreme Court, it ought to originate there; but where, from its nature, it cannot originate in that court, these words ought not to be so construed, as to require it. There are many cases, in which it would be found extremely difficult, and subversive of the spirit of the constitution, to maintain the construction, that appellate jurisdiction cannot be exercised, where one of the parties might sue, or be sued in this court. The constitution defines the jurisdiction of the Supreme Court, but does not define that of the inferior courts. Can it be affirmed, that a state might not sue the citizen of another state in a Circuit Court? Should the Circuit Court decide for, or against its jurisdiction, should it dismiss the suit, or give judgment
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  • 1 See 9 Wheat. R. 820, 821.

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

against the state, might not its decision be revised in the Supreme Court? The argument is, that it could not; and thevery clause, which is urged to prove, that the Circuit Court could give no judgment in the case, is also urged to prove, that its judgment is irreversible. A supervising court, whose peculiar province it is to correct the errors of an inferior court, has no power to correct a judgment given without jurisdiction, because, in the same case, that supervising court has original jurisdiction. Had negative words been employed, it would be difficult to give them this construction, if they would admit of any other. But, without negative words, this irrational construction can never be maintained.

1707. "So, too, in the same clause, the jurisdiction of the court is declared to be original, 'in cases affecting ambassadors, other public ministers, and consuls.' There is, perhaps, no part of the article under consideration so much required by national policy, as this; unless it be that part, which extends the judicial power 'to all cases arising under the constitution, laws, and treaties of the United States.' It has been generally held, that the state courts have a concurrent jurisdiction with the federal courts in cases, to which the judicial power is extended, unless the jurisdiction of the federal courts be rendered exclusive by the words of the third article. If the words, 'to all cases,' give exclusive jurisdiction in cases affecting foreign ministers, they may also give exclusive jurisdiction, if such be the will of congress, in cases arising under the constitution, laws, and treaties of the United States. Now, suppose an individual were to sue a foreign minister in a state court, and that court were to maintain its jurisdiction, and render judgment against the minister, could

CH. XXXVIII.] JUDICIARY--JURISDICTION. 583

it be contended, that this court would be incapable of revising such judgment, because the constitution had given it original jurisdiction in the case? If this could be maintained, then a clause inserted for the purpose of excluding the jurisdiction of all other courts, than this, in a particular case, would have the effect of excluding the jurisdiction of this court in that very case, if the suit were to be brought in another court, and that court were to assert jurisdiction. This tribunal, according to the argument, which has been urged, could neither revise the judgment of such other court, nor suspend its proceedings; for a writ of prohibition, or any other similar writ, is in the nature of appellate process.

1708. "Foreign consuls frequently assert, in our prize courts, the claims of their fellow subjects. These suits are maintained by them, as consuls. The appellate power of this court has been frequently exercised in such cases, and has never been questioned. It would be extremely mischievous to withhold its exercise. Yet the consul is a party on the record. The truth is, that, where the words confer only appellate jurisdiction, original jurisdiction is most clearly not given; but where the words admit of appellate jurisdiction, the power to take cognizance of the suit originally does not necessarily negative the power to decide upon it on an appeal, if it may originate in a different court. It is, we think, apparent, that to give this distributive clause the interpretation contended for, to give to its affirmative words a negative operation, in every possible case, would, in some instances, defeat the obvious intention of the article. Such an interpretation would not consist with those rules, which, from time immemorial, have guided courts in their construction of instru-

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

ments brought under their consideration. It must, therefore, be discarded. Every part of the article must be taken into view, and that construction adopted, which will consist with its words, and promote its general intention. The court may imply a negative from affirmative words, where the implication promotes, not where it defeats, the intention.

1709. "If we apply this principle, the correctness of which we believe will not be controverted, to the distributive clause under consideration, the result, we think, would be this; the original jurisdiction of the Supreme Court in cases, where a state is a party, refers to those cases, in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised in consequence of the character of the party, and an original suit might be instituted in any of the federal courts; not to those cases, in which an original suit might not be instituted in a federal court. Of the last description is every case between a state and its citizens, and, perhaps, every case, in which a state is enforcing its penal laws. In such cases, therefore, the Supreme Court cannot take original jurisdiction. In every other case, that is, in every case, to which the judicial power extends, and in which original jurisdiction is not expressly given, that judicial power shall be exercised in the appellate, and only in the appellate form. The original jurisdiction of this court cannot be enlarged, but its appellate jurisdiction may be exercised in every case, cognizable under the third article of the constitution in the federal courts, in which original jurisdiction cannot be exercised; and the extent of this judicial power is to be measured, not by giving the affirmative words of the distributive clause a negative operation in every possible case, but by giving their

CH. XXXVIII.] JUDICIARY--JURISDICTION. 585

true meaning to the words, which define its extent. The counsel for the defendant in error urge, in opposition to this rule of construction, some dicta of the court, in the case of Marbury v. Madison.1

1710. "It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connexion with the case, in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles, which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated. In the case of Marbury v. Madison, the single question before the court, so far as that case can be applied to this, was, whether the legislature could give this court original jurisdiction in a case, in which the constitution had clearly not given it, and in which no doubt respecting the construction of the article could possibly be raised. The court decided, and we think very properly, that the legislature could not give original jurisdiction in such a case. But, in the reasoning of the court in support of this decision, some expressions are used, which go far beyond it. The counsel for Marbury had insisted on the unlimited discretion of the legislature in the apportionment of the judicial power; and it is against this argument, that the reasoning of the court is directed. They say, that, if such had been the intention of the article, 'it would certainly have been useless to
__________________________

  • 1 1 Cranch, R. 174, 175, 176.

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

proceed farther, than to define the judicial power, and the tribunals, in which it should be vested.' The court says, that such a construction would render the clause, dividing the jurisdiction of the court into original and appellate, totally useless; that 'affirmative words are often, in their operation, negative of other objects, than those which are affirmed; and, in this case, (in the case of Marbury v. Madison,) a negative or exclusive sense must be given to them, or they have no operation at all.' 'It cannot be presumed,' adds the court, 'that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it.'

1711. "The whole reasoning of the court proceeds upon the idea, that the affirmative words of the clause, giving one sort of jurisdiction, must imply a negative of any other sort of jurisdiction, because otherwise the words would be totally inoperative; and this reasoning is advanced in a case, to which it was strictly applicable. If in that case original jurisdiction could have been exercised, the clause under consideration would have been entirely useless. Having such cases only in its view, the court lays down a principle, which is generally correct, in terms much broader, than the decision, and not only much broader, than the reasoning, with which that decision is supported, but in some instances contradictory to its principle. The reasoning sustains the negative operation of the words in that case, because otherwise the clause would have no meaning whatever, and because such operation, was necessary to give effect to the intention of the article. The effort now made is, to apply the conclusion, to which the court was conducted by that reasoning in the particular case, to one, in which the words have their

CH. XXXVIII.] JUDICIARY--JURISDICTION. 587

full operation, when understood affirmatively, and in which the negative, or exclusive sense is to be so used, as to defeat some of the great objects of the article. To this construction the court cannot give its assent. The general expressions in the case or Marbury v. Madison must be understood with the limitations, which are given to them in this opinion; limitations, which in no degree affect the decision in that case, or the tenor of its reasoning. The counsel, who closed the argument, put several cases for the purpose of illustration, which he supposed to arise under the constitution, and yet to be, apparently, without the jurisdiction of the court. Were a state to lay a duty on exports, to collect the money and place it in her treasury, could the citizen, who paid it, he asks, maintain a suit in this court against such state, to recover back the money? Perhaps not. Without, however, deciding such supposed case, we may say, that it is entirely unlike that under consideration.

1712. "The citizen, who had paid his money to his state, under a law that is void, is in the same situation with every other person, who has paid money by mistake. The law raises an assumpsit to return the money, and it is upon that assumpsit, that the action is to be maintained. To refuse to comply with this assumpsit may be no more a violation of the constitution, than to refuse to comply with any other; and as the federal courts never had jurisdiction over contracts between a state and its citizens, they may have none over this. But let us so vary the supposed case, as to give it a real resemblance to that under consideration. Suppose a citizen to refuse to pay this export duty, and a suit to be instituted for the purpose of compelling him to pay it. He pleads the constitution of the United. States in bar of the action, notwithstanding which the

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

court gives judgment against him. This would be a case arising under the constitution, and would be the very case now before the court.

1713. "We are also asked, if a state should confiscate property secured by a treaty, whether the individual could maintain an action for that property? If the property confiscated be debts, our own experience informs us, that the remedy of the creditor against his debtor remains. If it be land, which is secured by a treaty, and afterwards confiscated by a state, the argument does not assume, that this title, thus secured, could be extinguished by an act of confiscation. The injured party, therefore, has his remedy against the occupant of the land for that, which the treaty secures to him; not against the state for money, which is not secured to him.

1714. "The case of a state, which pays off its own debts with paper money, no more resembles this, than do those, to which we have already adverted. The courts have no jurisdiction over the contract. They cannot enforce it, nor judge of its violation. Let it be, that the act discharging the debt is a mere nullity, and that it is still due. Yet. the federal courts have no cognizance of the case. But suppose a state to institute proceedings against an individual, which depended on the validity of an act emitting bills of credit: suppose a state to prosecute one of its citizens for refusing paper money, who should plead the constitution in bar of such prosecution. If his plea should be overruled, and judgment rendered against him, his case would resemble this; and, unless the.jurisdiction of this court might be exercised over it, the constitution would be violated, and the injured party be unable to bring his case before that tribunal, to which the people of the United States

CH. XXXVIII.] JUDICIARY--JURISDICTION. 589

have assigned all such cases. It is most true, that this court will not take jurisdiction, if it should not: but it is equally true, that it must take jurisdiction, if it should. The judiciary cannot, as the legislature may, avoid a measure, because it approaches the confines of the constitution. We cannot pass it by, because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction, which is given, than to usurp that, which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases, arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.

1715. "To escape the operation of these comprehensive words, the counsel for the defendant has mentioned instances, in which the constitution might be violated without giving jurisdiction to this court. These words, therefore, however universal in their expression, must, he contends, be limited, and controlled in their construction by circumstances. One of these instances is, the grant by a state of a patent of nobility. The court, he says, cannot annul this grant. This may be very true; but by no means justifies the inference drawn from it. The article does not extend the judicial power to every violation of the constitution, which may possibly take place; but to 'a case in law or equity,' in which a right, under such law, is asserted

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

in a court of justice. If the question cannot be brought into a court, then there is no case in law or equity, and no jurisdiction is given by the words of the article. But if, in any controversy depending in a court, the cause should depend on the validity of such a law, that would be a case arising under the constitution, to which the judicial power of the United States would extend. The same observation applies to the other instances, with which the counsel, who opened the cause, has illustrated this argument. Although they show, that there may be violations of the constitution, of which the courts can take no cognizance, they do not show, that an interpretation more restrictive, than the words themselves import, ought to be given to this article. They do not show, that there can be 'a case in law or equity,' arising under the constitution, to which the judicial power does not extend. We think, then, that, as the constitution originally stood, the appellate jurisdiction of this court, in all eases arising under the constitution, laws, or treaties of the United States, was not arrested by the circumstance, that a state was a party."1
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  • 1 Much reliance has occasionally been laid upon particular expressions of the Supreme Court, used incidentally in argument, to support the reasoning, which is here so ably answered. The reasoning in Marbury v. Madison, (1 Cranch, R. 174, 175, 176,) has been cited, as especially in point. But the Supreme Court, in Cohens v. Virginia, (6 Wheat. R. 399 to 402) explained it in a satisfactory manner. So, in other cases, it is said by the Supreme Court, that "appellate jurisdiction is given to the Supreme Court in all cues, where it has not original jurisdiction;" and that "it may be exercised (by the Supreme Court) in all other cases, than those, of which it has original cognizance."* And again, "in those cases, in which the original jurisdiction is given to the Supreme Courts the judicial power of the United States cannot be exercised in

    * Martin v. Hunter, 1 Wheaton's R. 337, 338.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 591

1716. The next inquiry is, whether the eleventh amendment to the constitution has effected any change of the jurisdiction, thus confided to the, judicial power of the United States. And here again the most satisfactory answer, which can be given, will be found in the language of the same opinion.1 After quoting the words of the amendment, which are, "the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the states by citizens of another state, or by citizens or subjects of any foreign state," the opinion proceeds: "It is a part of our history, that, at the adoption of the constitution, all the states were greatly indebted; and the apprehension, that these debts might be prosecuted in the federal courts, formed a very serious objection to that instrument. Suits were instituted; and the court maintained its jurisdiction. The alarm was general; and, to quiet the appre-
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  • its appellate form,'* Now, these expression, if taken in connexion with the context, and the general scope of the argument, in which they are to be found, are perfectly accurate. It is only by detaching them from this connexion, that they are supposed to speak a language, inconsistent with that in Cohen, v. Virginia, (6 Wheat. R. 392 to 399.) The court, in each of the cases, where the language above cited is used, were referring to those classes of cases, in which original jurisdiction is given solely by the character of the party, i. e. a state, a foreign ambassador, or other public minister, or a consul. In such cases, if there would be no jurisdiction at all, founded upon any other part of the constitutional delegation of judicial power, except that applicable to parties, the court held, that the appellate jurisdiction would not attach. Why? Plainly, because original jurisdiction only was given in such cases. But where the constitution extended the appellate jurisdiction to a class of cases, embracing the particular suit, without any reference to the point, who were parties, there the same reasoning would not apply.
    • 1 Cohen, v. Virginia, 6 Wheat. R. 406 to 412.

      * Osborn v. Bank of United States, 9 Wheaton's R. 820.

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

hensions, that were so extensively entertained, this amendment was proposed in Congress, and adopted by the state legislatures. That its motive was not to maintain the sovereignty of a state from the degradation, supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more states, or between a state and a foreign state. The jurisdiction of the court still extends to these cases; and in these a state may still be sued. We must ascribe the amendment, then, to some other cause, than the dignity of a state. There is no difficulty in finding this cause. Those, who were inhibited from commencing a suit against a state, or from prosecuting one, which might be commenced before the adoption of the amendment, were persons, who might probably be its creditors. There was not much reason to fear, that foreign or sister states would be creditors to any considerable amount; and there was reason to retain the jurisdiction of the court in those cases, because it might be essential to the preservation of peace. The amendment, therefore, extended to suits commenced, or prosecuted by individuals, but not to those brought by states.

1717. "The first impression made on the mind by this amendment is, that it was intended for those cases, and for those only, in which some demand against a state is made by an individual in the courts of the Union. If we consider the causes, to which it is to be traced, we are conducted to the same conclusion. A general interest might well be felt in leaving to a state the full power of consulting its convenience in the adjustment of its debts, or of

CH. XXXVIII.] JUDICIARY--JURISDICTION. 593.

other claims upon it; but no interest could be felt in so changing the relations between the whole and its parts, as to strip the government of the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation.

1718. "The words of the amendment appear to the court to justify and require this construction. The judicial power is not 'to extend to any suit in law or equity, commenced, or prosecuted against one of the United States by citizens of another state, &c.'

1719. "What is a suit? We understand it to be the prosecution, or pursuit, of some claim, demand, or request. In law language, it is the prosecution of some demand in a court of justice. The remedy for every species of wrong is, says Judge Blackstone, 'the being put in possession of that right whereof the party injured is deprived.' 'The instruments, whereby this remedy is obtained, are a diversity of suits and actions, which are defined by the Mirror to be "the lawful demand of one's right;" or, as Braeton and Fleta express it, in the words of Justinian, jus prosequendi in judicio, quod alicui debetur. Blackstone then proceeds to describe every species of remedy by suit; and they are all cases, where the party suing claims to obtain something, to which he has a right.

1720. "To commence a suit is to demand something by the institution of process in a court of justice; and to prosecute the suit, is, according to the common acceptation of language, to continue that demand. By a suit commenced by an individual against a state, we should understand process sued out by that individual against the state, for the purpose of establishing some claim against it by the judgment of

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

a court; and the prosecution of that suit is its continuance. Whatever may be the stages of its progress, the actor is still the same. Suits had been commenced in the Supreme Court against some of the states before this amendment was introduced into Congress, and others might be commenced, before it should be adopted by the state legislatures, and might be depending at the time of its adoption. The object of the amendment was, not only to prevent the commencement of future suits, but to arrest the prosecution of those, which might be commenced, when this article should form a part of the constitution. It therefore embraces both objects; and its meaning is, that the judicial power shall not be construed to extend to any suit, which may be commenced, or which, if already commenced, may be prosecuted against a state by the citizen of another state. If a suit, brought in one court, and carried by legal process to a supervising court, be a continuation of the same suit, then this suit is not commenced nor prosecuted against a state. It is clearly in its commencement the suit of a state against an individual, which suit is transferred to this court, not for the purpose of asserting any claim against the state, but 'for the purpose of asserting a constitutional defence against a claim made by a state.

1794. "A writ of error is defined to be a commission, by which the judges of one court are authorized to examine a record, upon which a judgment was given in another court, and, on such examination, to affirm, or reverse the same according to law. If, says my Lord Coke, by the writ of error the plaintiff may recover, or be restored to any thing, it may be released by the name of an action. In Bacon's

CH. XXXVIII.] JUDICIARY--JURISDICTION. 595

Abridgment, tit. Error, L. it is laid down, that 'where by a writ of error the plaintiff shall recover, or be restored to any personal thing, as debt, damage, or the like, a release of all actions personal is a good plea. And when land is to be recovered, or restored in a writ of error, a release of actions real is a good bar. But where by a writ of error the plaintiff shall not be restored to any personal or real thing, a release of all actions real or personal is no bar.' And for this we have the authority of Lord Coke, both in his Commentary on Littleton and in his Reports. A writ of error, then, is in the nature of a suit or action, when it is to restore the party, who obtains it to the possession of any thing, which is withheld from him, not when its operation is entirely defensive. This rule will apply to writs of error from the Courts of the United States, as well as to those writs in England.

1722. "Under the judiciary act, the effect of a writ of error is simply to bring the record into Court, and submit the judgment of the inferior tribunal to re-examination. It does not in any manner act upon the parties; it acts only on the record. It removes the record into the supervising tribunal. Where, then, a state obtains a judgment against an individual, and the court, rendering such judgment, overrules a defence, set up under the constitution, or laws of the United States, the transfer of this record into the Supreme Court, for the sole purpose of inquiring, whether the judgment violates the constitution or laws of the United States, can, with no propriety, we think, be denominated a suit commenced, or prosecuted against the state, whose judgment is so far re-examined. Nothing is demanded from the state. No claim against it,

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

of any description, is asserted or prosecuted. The party is not to be restored to the possession of any thing. Essentially, it is an appeal on a single point; and the defendant, who appeals from a judgment rendered against him, is never said to commence, or prosecute a suit against the plaintiff, who has obtained the judgment. The writ of error is given, rather than an appeal, because it is the more usual mode of removing suits at common law; and because, perhaps, it is more technically proper, where a single point of law, and not the whole case, is to be re-examined. But an appeal might be given, and might be so regulated, as to effect every purpose of a writ of error. The mode of removal is form, and not substance. Whether it be by writ of error, or appeal, no claim is asserted, no demand is made by the original defendant. He only asserts the constitutional right, to have his defence examined by that tribunal, whose province it is to construe the constitution and laws of the Union.

1723. "The only part of the proceeding, which is in any manner personal, is the citation. And what is the citation? It is simply notice to the opposite party, that the record is transferred into another court, where he may appear, or decline to appear, as his judgment, or inclination may determine. As the party, who has obtained a judgment is out of court, and may, therefore, not know, that his cause is removed, common justice requires, that notice of the fact should be given him. But this notice is not a suit, nor has it the effect of process. If the party does not choose to appear, he cannot be brought into court, nor is his failure to appear considered as a default. Judgment cannot be given against him for his non-appearance; but the judgment is to be re-examined, and reversed, or affirmed, in like

CH. XXXVIII.] JUDICIARY--JURISDICTION. 597

manner, as if the party had appeared, and argued his cause.

1724. "The point of view, in which this writ of error, with its citation, has been considered uniformly in the courts of the Union, has been well illustrated by a reference to the course of this court in suits instituted by the United States. The universally received opinion is, that no suit can be commenced, or prosecuted against the United States; that the judiciary act does not authorize such suits. Yet writs of error, accompanied with citations, have uniformly issued for the removal of judgments in favour of the United States into a superior court, where they have, like those in favour of an individual, been re-examined, and affirmed, or reversed. It has never been suggested, that such writ of error was a suit against the United States, and, therefore, not within the jurisdiction of the appellate court. It is, then, the opinion of the court, that the defendant, who removes a judgment, rendered against him by a state court, into this court, for the purpose of re-examining the question, whether that judgment be in violation of the constitution and laws of the United States, does not commence, or prosecute a suit against the state, whatever may be its opinion, where the effect of the writ may be to restore the party to the possession of a thing, which he demands."1

1725. Another inquiry, touching the appellate jurisdiction of the Supreme Court, of a still more general character, is, whether it extends only to the inferior courts of the Union, constituted by congress, or reaches to cases decided in the state courts. This question
_______________________

  • 1 See also Governor of Georgia v. Madrazo, 1 Peters's Sup. R. 128 to 131, per Johnson J.

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

has been made on several occasions; and has been most deliberately weighed, and solemnly decided in the Supreme Court. The reasoning of the court in Martin v. Hunter,1 (which was the first time, in which the question was directly presented for judgment,) will be here given, as it has been affirmed on more recent discussions.2

1726. "This leads us," says the court "to the consideration of the great question, as to the nature and extent of the appellate jurisdiction of the United States. We have already seen, that appellate jurisdiction is given by the constitution to the Supreme Court in all cases, where it has not original jurisdiction; subject, however, to such exceptions and regulations, as congress may prescribe. It is, therefore, capable of embracing every case enumerated in the constitution, which is not exclusively to be decided by way of original jurisdiction. But the exercise of appellate jurisdiction is far from being limited by the terms of the constitution to the Supreme Court. There can be no doubt, that congress may create a succession of inferior tribunals, in each of which it may vest appellate, as well as original jurisdiction. The judicial power is delegated by the constitution in the most general terms, and may, therefore, be exercised by congress, under every variety of form of appellate, or original jurisdiction. And as there is nothing in the constitution, which restrains, or limits this power, it must, therefore, in all these cases, subsist in the utmost latitude, of which, in its own nature, it is susceptible.

1797. "As, then, by the terms of the constitution,
___________________________

  • 1 1 Wheat. R. 304.
    2 Cohens v. Virginia, 6 Wheat R. 413 to 423.

CH. XXXVIII.] JUDICIARY--JURISDICTION. 599

the appellate jurisdiction is not limited, as to the Supreme Court, and as to this court it may be exercised in all other cases, than those, of which it has original cognizance, what is there to restrain its exercise over state tribunals in the enumerated cases? The appellate power is not limited by the terms of the third article to any particular courts. The words are, 'the judicial power (which includes appellate power,) shall extend to all cases,' &c., and ' in all other cases before mentioned, the Supreme Court shall have appellate jurisdiction.' It is the case, then, and not the court, that gives the jurisdiction. If the judicial power extends to the case, it will be in vain to search in the letter of the constitution for any qualification, as to the tribunal, where it depends. It is incumbent, then, upon those, who assert such a qualification, to show its existence by necessary implication. If the text be clear and distinct, no restriction upon its plain and obvious import ought to be admitted, unless the inference be irresistible.

1728. "If the constitution meant to limit the appellate jurisdiction to eases pending in the courts of the United States, it would necessarily follow, that the jurisdiction of these courts would, in all the cases enumerated in the constitution, be exclusive of state tribunals. How, otherwise, could the jurisdiction extend to all cases, arising under the constitution, laws, and treaties of the United States, or, to all cases of admiralty and maritime jurisdiction? If some of these cases might be entertained by state tribunals, and no appellate jurisdiction, as to them, should exist, then the appellate power would not extend to all, but to some, cases. If state tribunals might exercise concurrent jurisdiction over all, or some of the other

??

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
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  • 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-
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  • 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
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  • 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
_____________________________

  • 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
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  • 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-
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  • 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
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  • 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-
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  • 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
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  • 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-
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  • 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
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  • 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
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  • 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
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  • 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
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  • 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
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  • 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-
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  • 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.
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  • 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
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  • 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.