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 deemed exclusive of original jurisdiction.' And accordingly, the doctrine is firmly established, that the Supreme Court cannot constitutionally exercise any original jurisdiction, except in the enumerated cases. If congress should confer it, it would be a mere nullity.2

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

1 Marbury v. Madison, 1 Cranch, R. 174, 175; Wiscart v. Dauchy, 3 Dall. R. 321; Cohens v. Virginia, 6 Wheat. R. 392 to 395; Id. 400, 401; Osborn v. Bank of United States, 9 Wheat. R. 820, 821.

2 Id. ibid. 1 Kent. Comm. Lect. 15, p. 294, 301, (2d edition, 314, 322 ;) Wiscart v. Dauchy, 3 Dall. R. 321. Congress, by the judiciary act of 1789, ch. 20, § 13, did confer on the Supreme Court the authority to issue writs of mandamus, in cases warranted by the principles and usages of law, to persons holding office under the authority of the United States. But the Supreme Court, in 1801, held the delegation of power to be a mere nullity. Marbury v. Madison, 1 Cranch, R. 137, 173 to 180.

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. 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. 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; but

2

4

1 Martin v. Hunter, 1 Wheat. R. 337, 338; Osborn v. Bank of United States, 9 Wheat. R. 820, 821; Cohens v. Virginia, 6 Wheat. R. 395, 396.

2 United States v. Ravara, 2 Dall. R. 297; Chisholm v. Georgia, 2 Dall. R. 419, 431, 436, per Iredell J. Sergeant on Const. ch. 2.

31 Kent. Comm. Lect. 15, p. 294, 295, (2d edition, p. 314, 315.) 4 See Marbury v. Madison, 1 Cranch, R. 137; Martin v. Hunter

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

1 Wheat. R. 337, 338; Osborn v. Bank of United States, 9 Wheat. R. 820, 821; 1 Kent's Comm. Lect. 15, p. 294, 295, (2d edition, p. 314,315 ;) Cohens v. Virginia, 6 Wheat. R. 395, 396, 397.

1 United States v. Ortega, 11 Wheat. R. 467; Cohens v. Virginia, 6 Wheat R. 396, 397.

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

1 Martin v. Hunter, 1 Wheat. R. 337, 338; Osborn v. Bank of United States, 9 Wheat. R. 820, 821; Cohens v. Virginia, 6 Wheat. R. 392 to 396.

2 The Federalist, No. 82, has spoken of the right of congress to vest appellate jurisdiction in the inferior courts of the United States from state courts, (for it had before expressly affirmed that of the Supreme Court in such cases) in the following terms. "But could an appeal be made to lie from the state courts to the subordinate federal judicatories? This is another of the questions, which have been raised, and of greater difficulty, than the former. The following considerations countenance the affirmative. The plan of the convention, in the first place, authorizes the national legislature to constitute tribunals, inferior to the Supreme Court. It declares, in the next place, that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts, as congress shall ordain and establish;' and it then proceeds to enumerate the cases, to which this judicial power shall extend. It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition of that of the subordinate courts. The only outlines described for them are, that they shall

§ 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,' that it will be more satisfactory to

be 'inferior to the Supreme Court,' and that they shall not exceed the specified limits of the federal judiciary. Whether their authority shall be original, or appellate, or both, is not declared. All this seems to be left to the discretion of the legislature. And this being the case, I perceive at present no impediment to the establishment of an appeal from the state courts to the subordinate national tribunals; and many advantages, attending the power of doing it, may be imagined. It would diminish the motives to the multiplication of federal courts, and would admit of arrangements, calculated to contract the appellate jurisdiction of the Supreme Court. The state tribunals may then be left with a more entire charge of federal causes; and appeals, in most cases, in which they may be deemed proper, instead of being carried to the Supreme Court, may be made to lie from the state courts to district courts of the Union."

1 Cohens v. Virginia, 6 Wheat. R. 264, 392, et seq.