CHAPTER XXVIII.

OF THE APPELLATE JURISDICTION.

THE general expressions of the Constitution are, that the supreme court shall have appellate jurisdiction in all cases of law and equity, both as to law and fact, with such exceptions and under such regulations as congress shall make, of all controversies to which the United States shall be a party; controversies between two or more states; between a state and citizens of another state; between citizens of deferent 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.

The power given to except and to regulate does not — ex vi termini -carry with it a power to enlarge the jurisdiction; so far therefore as it relates to the subjects of jurisdiction, we must consider it as confined by the enumeration of them.

But on another question the Constitution is not equally explicit. It is not said whether the revision of the sentences of other courts extends to state courts, or is limited to the courts of the United States. Some

discussions took place on this subject in the state conventions, and the question was not perhaps entirely at rest till the year 1821, when it again arose in the supreme court, received its close attention, and it is presumed, its final decision.

The clear and convincing elucidations of the chief justice would suffer by abridgement, and could not be improved by the substitution of other language.

He observes that the United States for many and most important purposes form a single nation.

"In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one, and the government which is alone capable of controlling and managing their interest in all these respects, is the government of the Union, and in that character the people have no other. America has chosen to be in many respects and to many purposes a nation; and for all these purposes, her government is competent and complete. The people have declared, that in the exercise of all powers given for these objects, it is supreme. It can, then, in affecting these objects, legitimately control all individuals or governments within the American territory. The constitution and laws of a state, so far as they are repugnant to the Constitution and the constitutional laws of the United States, are absolutely void. These states are constituent parts of the United States. They are members of one great empire — for some purposes sovereign; for some purposes subordinate.

"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 a constitution?

"When a government is confessedly supreme, in respect to objects of vital interest to the nation, there is nothing inconsistent with sound reason, or incompatible with the nature of government, in making all its departments supreme, so far as respects those objects, and so far as is necessary in their attainment. The exercise of the appellate power over those judgments of the state tribunals which may contravene the Constitution or laws of the United States, is 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, 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 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 relations 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 exercised 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 uniformly 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 and 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 attention to the judicial power, found it limited to a few objects, but with respect to some of those objects extending in its appellate form to the judgments of the state courts. They extended it, among other objects, to all cases 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 to contemporaneous exposition. No question, it is believed, has arisen to which this principle applies more unequivocally than to that now under consideration.

"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 be from the latter 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 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 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 be 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.

"While on this part of the argument, it may be also material to observe, that the uniform decisions of this court on the point now under consideration, have been assented to, with a single exception, 1 by the courts of every state in the Union, whose judgments have been revised. It has been the unwelcome duty of this tribunal to reverse the judgments of many state courts in cases in which the strongest state feelings were engaged. Judges, whose talents and character would grace any bench; to whom a disposition to submit to jurisdiction that is usurped, or to surrender their legitimate powers, will certainly not be imputed, have yielded without hesitation to the authority by which their judgments were reversed, while they perhaps disapproved the judgment of reversal.

"This concurrence of statesmen, of legislators, and of judges, in the same construction of the Constitution, may justly inspire some confidence in that constructions." 2

In this case, as may have been perceived from the course of reasoning, the appellate jurisdiction was exercised over a state court. In 1824, the consideration of the same question was again thrown on the supreme court, on an appeal from the circuit court of the United States for the district of Ohio, in an equity case.

In the extract we shall also give of the decision pronounced by the chief justice in this case, we shall perceive some further important principles laid down which will be found serviceable in a future view of the powers of the United States courts that will be presented to the reader; at the same time we must not be understood to have a design to apply arguments, evidently intended only for cases of a civil nature, further than fair reasoning will justify.

"In support of the clause, in the act incorporating the subscribers to the Bank of the United States, it is said that the legislative, executive, and judicial powers, of every well constructed government, are co-extensive with each other. That is, they are potentially co-extensive. The executive department may constitutionally execute every law which the legislature may constitutionally make, and the judicial department may receive from the legislature the power of construing every such law. All governments which are not extremely defective in their organization, must possess within themselves the means of expounding as well as enforcing their own laws. If we examine the Constitution of the United States, we find that its framers kept this political principle in view. The second article vests the whole executive power in the president, and the third declares, 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.'

"This clause enables the judicial department to receive jurisdiction to the full extent of the Constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes 'a case,' and the Constitution declares that the judicial power shall extend to 'all cases arising under the Constitution, laws, and treaties of the United States.'

"The suit of the Bank of the United States v. Osborne and others, is 'a case,' and the question is, whether it 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 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.

"In those cases in which original jurisdiction is given to the Supreme Court, the judicial power of the United States cannot be exercised in its appellate form. In every other case, the power is to be exercised in its original or appellate form, or both, as the wisdom of congress may direct. With the exception of those cases, in which original jurisdiction is given to this court, there is none to which the judicial power extends, from which the original jurisdiction of the interior courts is excluded by the Constitution. Original jurisdiction, so far as the Constitution gives a rule, is co-extensive with the judicial power. We find in the Constitution, no prohibition to its exercise, in every case in which the judicial power can be exercised. It would be a very bold construction to say that this power could be applied in its appellate form only, to the most important class of cases to which it is applicable.

"The Constitution establishes the Supreme Court, and defines its jurisdiction. It enumerates cases in which its jurisdiction is original and exclusive; and then defines that which is appellate, but does not insinuate that in any such case the power cannot be exercised in its original form by courts of original jurisdiction. It is not insinuated that the judicial power, in cases depending on the character of the cause, cannot be exercised in the first instance, in the courts of the Union, but must first be exercised in the tribunals of the state; tribunals over which the government of the Union has no adequate control, and which may be closed to any claim asserted under a law of the United States.

"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 them 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 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, words which in their plain sense apply to a whole cause, 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 be 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." 3

From these two decisions we collect, among other matters, that the appellate jurisdiction does not depend on the court where the decision was given, but on the subject to which it relates; that it is not necessary that the subject should be purely and abstractedly of a single nature within the view of the Constitution, but may be connected with other matter, and the entire subject so formed, falls within the appellate jurisdiction; that this jurisdiction is essential to the well-being of the nation, and that the Supreme Court have not the power to decline its exercise. A tribunal so high, fully submitting to its constitutional obligations, when motives may easily be conceived of a personal nature, to tempt it to relax or evade their performance, affords an example for the imitation of all. 4


1. Supposed to be the case of Hunter's lessee v. Martin, of which the particulars may be seen in 7 Cranch, 604, and 1 Wheaton, 304. The ultimate acquiescence of the state tribunal restored the harmony of the general system. He are all fellow citizens, and all have but one interest.

2. 6 Wheaton, 413. Cohens v. Virginia.

3. 9 Wheaton, 733. Osborne v. Bank of the United States.

4. In these quotations the author has retained, without approving of, the expression federal, frequently applied to the courts of the United States. The government not being strictly a federal government, its tribunal's are not properly federal tribunals. He refers to his antecedent remarks, to show how little of the pure federative quality, was intended to be retained in it, nor on the other hand, is it liable to the objection sometimes raised, that its warm advocates aim at rendering it a consolidated government, destructive of state sovereignty. The minority, who at first opposed its adoption, were, no doubt, sincere in the alarm they professed in this respect: but time has proved that it is utterly groundless, and the state sovereignties are, in all respects not voluntarily ceded to the United States, as vigorous as ever.


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