clared, in the case of Clerke v. Harwood,a that if the highest court in a state reverse the judgment of a subordinate court, and, on appeal to the Supreme Court of the United States, the judgment of the highest state court be in its turn reversed, it becomes a mere nullity, and the mandate for execution may issue to the inferior state court. But, in the case of Fairfax v. Hunter, a writ of error from the Supreme Court of the

United States was awarded to the Court of Appeals of *317 Virginia, upon a judgment in *that court against the right claimed under a construction of the treaties made with Great Britain in 1783 and 1794, and the judgment of the Court of Appeals was reversed, and the cause remanded, and the Court of Appeals below were required to cause the original judgment, which had been reversed in that court, to be carried into due execution. The Court of Appeals, when the cause came back to them, resolved that the appellate power of the Supreme Court of the United States did not extend to that court, and that so much of the act of congress as extended the appellate jurisdiction of the Supreme Court to that court, was not warranted by the constitution; and that the proceedings in the Supreme Court were coram non judice in relation to that court; and they consequently declined obedience to its mandate. A writ of error was awarded upon this refusal, and the cause came up again before the Supreme Court of the United States, in a case in which the judgment of the court below drew in question, and denied the validity of the statute of the United States, authorizing an appeal from a state court.c

A graver question could scarcely have arisen in that court, or one involving considerations of higher importance and delicacy, or more deeply affecting the permanency and tranquillity of the American Union. In the opinion which was delivered, the court observed, that the constitution unavoidably dealt in general language, and did not enter into a minute specification of powers, or declare the means by which those powers were to be carried into execution. This would have been a perilous and difficult, if not an impracticable task;

a 3 Dallas, 343.

c Martin v. Hunter, 1 Wheaton, 304.

b7 Cranch, 608.

and the constitution left it to congress from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interest should require.

The judicial power of the United States is declared to extend to all cases arising under treaties made under the *authority of the United States. It was an absolute *318 grant of the judicial power in that case, and it was competent for the people of this country to invest the general government with that, or with any other powers they might deem proper and necessary, and to prohibit the states from the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact. Congress were bound, by the injunctions of the constitution, to create inferior courts, in which to vest all that judicial jurisdiction which was exclusively vested in the United States, and of which the Supreme Court cannot take any other than an appellate cognizance. The whole judicial power must be at all times vested, either in an original or appellate form, in some courts created under the authority of the United States. The grant of the judicial power was absolute, and it was imperative upon congress to provide for the appellate jurisdiction of the federal courts, in all the cases in which judicial power was exclusively granted by the constitution, and not given by way of original jurisdiction, to the Supreme Court.

The court, in their examination of the judicial power, supposed that the constitution took a distinction between two classes of enumerated cases. It intended that the judicial power, either in an original or appellate form, should extend absolutely to all cases in law and equity arising under the constitution, the laws of the United States, and treaties made under their authority; and to all cases affecting ambassadors, other public ministers and consuls; and to all cases of admiralty and maritime jurisdiction; because those cases were of vital importance to the sovereignty of the Union, and they entered into the national policy, and affected the national rights, and the law and comity of nations. The original or appellate jurisdiction ought, therefore, to be commensurate with the mischiefs intended to be remedied, and the policy in view. But in respect to another class of cases, the constitution seemed, ex industria, to drop the word all, and to extend the jurisdiction of the *judiciary, not to all *319

controversies, but to controversies in which the United States were a party, or between two or more states, or between citizens of different states, &c., and to leave it to congress to qualify the jurisdiction, original or appellate, in such manner as public policy might dictate. But whatever weight might be due to that distinction, it was held to be manifest, that the judicial power was, unavoidably, in some cases, exclusive of all state authority, and, in all others, might be made so at the election of congress. The judiciary act, throughout every part of it, and particularly in the 9th, 11th and 13th sections, assumed, that in all cases to which the judicial powers of the United States extended, congress might rightfully vest exclusive jurisdiction in their own courts. The criminal, and the admiralty and maritime jurisdiction, must be exclusive; and it was only in those cases where, previous to the constitution, state tribunals possessed jurisdiction independent of national authority, that they could now constitutionally exercise a concurrent jurisdiction.

The exercise of appellate jurisdiction was not limited by the constitution to the Supreme Court. Congress might create a succession of inferior tribunals, in each of which it might vest appellate, as well as original jurisdiction. The appellate jurisdiction of the Supreme Court, in cases where it had not original jurisdiction, was declared to be subject to such exceptions and regulations as congress might prescribe. It remained, therefore, entirely in the discretion of congress, to cause the judicial power to be exercised in every variety of form of appellate jurisdiction, and the appellate power was not limited to cases pending in the courts of the United States. If it had been limited to cases in those courts, it would necessarily follow, that the jurisdiction of the federal courts must have been exclusive of state courts, in all the cases enumerated in the constitution. If the judicial power of the United States extends to all cases arising under the constitution, laws and

treaties of the Union, and to all cases of admiralty and *320 maritime jurisdiction, *the state courts could not, con

sistently with the express grant in the constitution, entertain any jurisdiction in those cases, without the right of appeal. If the state courts might entertain concurrent jurisdiction over any of those cases without control, then the appellate jurisdiction of the United States, as to such cases, would have no existence, which would be contrary to the

manifest intent of the constitution. The appellate power of the federal courts must extend to the state courts, so long as the state courts entertain any concurrent jurisdiction over the cases which the constitution has declared shall fall within the cognizance of the judicial power. It is very plain, that the constitution did contemplate that cases within the judicial cognizance of the United States would arise in the state courts, in the exercise of their ordinary jurisdiction: and that the state courts would incidentally take cognizance of the cases arising under the constitution, the laws and the treaties of the United States; and as the judicial power of the United States extended to all such cases, by the very terms of the constitution, it followed, as a necessary consequence, that the appellate jurisdiction of the courts of the United States must and did extend to the state tribunals, and attach upon every case within the cognizance of the judicial power.

All the enumerated cases of federal cognizance are those which touch the safety, peace and sovereignty of the nation, or which presume that state attachments, state prejudices, state jealousies and state interests, might sometimes obstruct or control the regular administration of justice. The appellate power, in all these cases, is founded on the clearest principles of policy and wisdom, and is deemed requisite to fulfil effectually the great and beneficent ends of the constitution. It is likewise necessary, in order to preserve uniformity of decision throughout the United States, upon all subjects within the purview of the constitution; and the mischiefs of opposite constructions, and contradictory decisions in the different states, on all these points of general concern, would be deplorable.

*The right of removal of a cause from a state court *321 by a defendant, who is entitled to try his rights and assert his privileges in the national forum, is also the exercise of appellate jurisdiction; and the right of removal of a cause may exist before or after judgment, in the discretion of congress. The Supreme Court, by a train of reasoning which appears to be unanswerable and conclusive, came to the decision, that the appellate power of the United States did extend to cases pending in the state courts, and that the 25th section of the judiciary act of 1789, authorizing the exercise of this jurisdiction in the specified cases by a writ of error, was supported by the letter and spirit of the constitution.

The judgment of the Court of Appeals in Virginia, rendered on the mandate in the cause, and denying the appellate jurisdiction of the Supreme Court, was consequently reversed, and the judgment of the District Court in Virginia, which the Court of Appeals in Virginia had reversed, was affirmed.

Whether the Supreme Court had authority to issue the compulsory process of mandamus to the state courts, to enforce the judgment of reversal, was a question which the court did not think it necessary to discuss or decide; and one of the judges, in the separate opinion which he gave in the cause, seemed to think that the Supreme Court, in the exercise of its appellate jurisdiction, was supreme over the parties and over the case, but that it had no compulsory control over the state tribunals. The court itself gave no intimation of an opinion whether it could or could not lawfully resort to compulsory or restrictive process, operating in personam upon the state tribunals; and it was no doubt deemed discreet not to assert more authority constitutionally vested in the court, than was necessary for the occasion. If the appellate jurisdiction be founded, as it no doubt was in that case, on a solid basis, it would seem to carry with it, as of course, all the coercive power incident to every such jurisdiction, and requisite to support it.

Writ of *322

mandamus.

a

*(2.) Another question which was largely discussed and profoundly considered by the Supreme Court, was touching its authority to issue a mandamus, when not arising in a case under its appellate jurisdiction, and when not required in the exercise of its original jurisdiction. In the case of Marbury v. Madison, the plaintiff had been nominated by the President, and, by and with the advice and consent of the Senate, had been appointed a justice of the peace for the District of Columbia, and the appointment had been made complete and absolute by the President's signature to the commission, and the commission had been made complete by affixing to it the seal of the United States. The secretary of state, after all this, withheld the commission, and the withholding of it was adjudged to be a violation of a vested legal right, for which the plaintiff was entitled to a remedy by

a 1 Cranch, 137.