United States v. Plumer. 12. That said indictment does not appear to be signed by the foreman of the grand jury. 13. That it does not appear that the verdict of said jury was rendered in open court, and in the presence of the defendant. 14. That said record is in other respects informal, insufficient, erroneous, and the judgment thereon void and of none effect. 15. That by the said record it appears that judgment upon the indictment aforesaid was given against him, the said Cyrus Plumer, otherwise called Cyrus W. Plumer, in form aforesaid, whereas judgment by the said Circuit Court of the United States ought to have been given for the said Plumer that he be thereof acquitted and go thereupon without day. Therefore in that there is manifest error. And the said Cyrus Plumer, otherwise called Cyrus W. Plumer, prays that the said judgment aforesaid, for the errors being in the record and process aforesaid, may be reversed and annulled, and absolutely be had for nothing, and that he may be restored to the common law of this land, and to all things which he hath lost on the present occasion. CYRUS PLUMER, otherwise called MR. SEARLE'S ARGUMENT. The first proposition we attempt to maintain is this, that, as the acts of Congress now stand, the Supreme Court is constitutionally bound to take appellate jurisdiction, in all cases whatsoever, both civil and criminal, arising under the Constitution and laws of the United States, except where it has original jurisdiction, and that the decision of the Supreme Court (United States v. Moore, 3 Cran. 159), repudiating appellate jurisdiction in all cases, except where Congress had specially granted it, was erroneous. In other words, we attempt to maintain that the existing acts of United States v. Plumer. Congress, if rightly interpreted, make no "exceptions" whatever to the appellate jurisdiction of the Supreme Court, as conferred by the Constitution; and that it is only by false interpretations, that those acts have ever been held to exclude from the appellate jurisdiction of the Supreme Court any case whatever, civil or criminal, arising under the Constitution and laws of the United States, and not included in the original jurisdiction of that court. This proposition, we claim, is established by the following arguments: 1st. The entire jurisdiction, both original and appellate, of the Supreme Court of the United States is conferred by the Constitution itself, and not by act of Congress. Constitution, Art. 3, § 2. The language of the Constitution on this point is: 1. "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States," etc., etc. 2. "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." 2d. The Supreme Court itself has acknowledged that at least its original jurisdiction was conferred by the Constitution itself, and not by act of Congress. Thus they say: "Of all the courts which the United States may, under their general powers, constitute, one only, the Supreme Court, possesses [an original] jurisdiction derived immediately from the Constitution, and of which the legislative power cannot deprive it. All other courts created by the general government possess no jurisdiction but what is given them by the power [Congress] that creates them." United States v. Hudson, 7 Cran. 32. Here the court asserts that at least its original jurisdiction is derived immediately from the Constitution. Yet its appellate United States v. Plumer. jurisdiction is just as clearly conferred by the Constitution as its original jurisdiction, as the clauses quoted from the Constitution show. The only difference in the two cases is this, that Congress is authorized, if it see fit, to make "exceptions" and "regulations" as to the appellate jurisdiction, but have no such power in regard to the original jurisdiction. Until "exceptions" are made by Congress to the appellate jurisdiction conferred by the Constitution, that jurisdiction includes all cases whatsoever, civil and criminal, arising under the Constitution and laws of the United States, etc., except such as are included in the original jurisdiction. The point we contend for is, that Congress has no power whatever affirmatively to confer appellate jurisdiction on the Supreme Court. It only has a discretionary power to "make exceptions to the general appellate jurisdiction conferred by the Constitution, and also to "make regulations" by which this general appellate jurisdiction shall be exercised. The Supreme Court itself virtually acknowledges this proposition. United States v. Moore, 3 Cran. 159. Now we say that inasmuch as a general appellate jurisdiction in all cases, etc., whatsoever, except where the Supreme Court has original jurisdiction, is affirmatively conferred by the Constitution itself; and inasmuch as Congress has no power at all (on this precise point of the courts having appellate jurisdiction), save to "make exceptions" to this general appellate jurisdiction conferred by the Constitution; and inasmuch also as all such "exceptions" are against equality and right, and adverse to the ascertainment of truth and the accomplishment of justice, and also adverse to uniformity and certainty in the law, all such "exceptions" must be expressly and affirmatively made. They cannot be implied from any acts of Congress whatever, much less can they be implied negatively or unnecessarily from any acts of Congress. We now say further that Congress has never expressly and affirmatively made any "exceptions" whatever to the general appellative jurisdiction conferred upon the Supreme Court by the United States v. Plumer. Constitution. The Supreme Court itself makes no pretence that any such "exceptions" have been expressly and affirmatively made by any act of Congress. All that Congress has done is this: it has passed acts purporting affirmatively to confer upon the Supreme Court appellate jurisdiction in certain cases where the same jurisdiction had been previously conferred by the Constitution. All such grants by Congress, of a jurisdiction already conferred by the Constitution, and already possessed by the court, are obviously gratuitous, extra-constitutional, and void, since (it may be repeated) Congress has no power to confer any appellate jurisdiction at all, but only to "make exceptions" to the appellate jurisdiction conferred by the Constitution. And yet, from these gratuitous, extra-constitutional, and void grants by Congress of an appellate jurisdiction (already conferred by the Constitution itself, and already possessed by the court) in certain cases, the court has implied, and that too, negatively and unnecessarily, an "exception " to, or denial of, the appellate jurisdiction conferred by the Constitution in all other cases. And this negative and unnecessary implication from these gratuitous, extra-constitutional, and void grants by Congress of an appellate jurisdiction in certain cases, constitutes the only ground on which the court now repudiates the appellate jurisdiction conferred upon it by the Constitution in all other cases. United States v. Moore, 3 Cran. 159. Now we insist that the appellate jurisdiction conferred upon the Supreme Court by the Constitution itself-a jurisdiction so important, not merely to uniformity and certainty in the law, but also to equality, truth, justice, and right cannot be taken away by any such negative and unnecessary implication, from extra-constitutional and void acts of Congress; but that it can be taken away only by constitutional and valid acts of Congress specially and affirmatively "making exceptions" to the general appellate jurisdiction conferred by the Constitution. But let us see what is the argument of the court in favor of this implication. We give their opinion entire. United States v. Plumer. Marshall, C. J., delivered the opinion of the court as follows: "This is an indictment against the defendant for taking fees, under color of his office, as a justice of the peace, in the District of Columbia. "A doubt has been suggested respecting the jurisdiction of this court, in appeals on writs of error, from the judgments of the Circuit Court for that district, in criminal cases; and this question is to be decided before the court can inquire into the merits of the case. "In support of the jurisdiction of this court, the AttorneyGeneral has adverted to the words of the Constitution, from which he seemed to argue that as criminal jurisdiction was exercised by the courts of the United States, under the description of all cases' in law and equity, arising under the laws of the United States, and as the appellate jurisdiction of this court was extended to all enumerated cases, other than those which might be brought on 'originally,' 'with such exceptions and under such regulations, as the Congress shall make,' that the Supreme Court possessed appellate jurisdiction in criminal as well as civil cases, over the judgments of every court, whose decisions it would review, unless there should be some one exception or regulation made by Congress, which should circumscribe the jurisdiction conferred by the Constitution. "This argument would be unanswerable, if the Supreme Court had been created by law, without describing its jurisdiction. "The Constitution would then have been the only standard by which its powers could be tested, since there would be clearly no congressional regulation or exception on the subject. "But as the jurisdiction of the court has been described, it has been regulated by Congress, and an affirmative description of its powers must be understood as a regulation, under the Constitution, prohibiting the exercise of other powers than those described. "Thus the appellate jurisdiction of this court, from the judgments of the Circuit Courts, is described affirmatively. No |