CH. XXXVIII.] JUDICIARY--IMPORTANCE OF. 425
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
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
* 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-
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,
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
"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
"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
"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-
"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
"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
"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
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
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
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
"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.
"'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
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
"'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
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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
"'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-
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,
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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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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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
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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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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
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§ 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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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
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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-
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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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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-
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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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-
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.
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
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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-
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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
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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
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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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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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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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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
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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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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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-
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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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
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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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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
"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-
"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
"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
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
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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-
"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-
"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.
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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.
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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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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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
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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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
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
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
* 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
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
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
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
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.
+ 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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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,
"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.
"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.
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-
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
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
(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
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
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
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
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
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
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
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
* 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
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
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-
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
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
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-
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
* 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
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
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
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
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,
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-
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
* 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
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
"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
"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
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
"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
"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
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
"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
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
"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
"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
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
"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
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
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-
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,
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
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
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-
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
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
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.
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
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
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
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
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
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,
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
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
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
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
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
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
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
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
* 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-
* 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
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,
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
"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
"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
"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
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-
"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.
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
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
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-
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
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-
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
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
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
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
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
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
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
"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
"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,
"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
"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
"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
"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
"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
"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
"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
"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
"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
"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."
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
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
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
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
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-
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
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-
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
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-
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
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
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
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
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
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
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
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.
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
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.