582 VINSON, C. J., dissenting. granted the federal judiciary were spelled out with care and precision in Art. III by a delineation of the kinds of cases to which the judicial power could be extended. The first principle is not now under attack, but proper perspective in viewing the second requires some examination of its origin and history. The framers of the Constitution were presented with, and rejected, proposals which would have vested nonjudicial powers in the national judiciary. Charles Pinckney of South Carolina proposed, for example, that "Each branch of the Legislature, as well as the Supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions." + Early in the Convention, however, the principle that the courts to be established should have jurisdiction only over cases became fixed. Thus it was that when the proposal was made on the floor of the Convention that the words, "arising under this Constitution" be inserted before "the Laws of the United States," in what is now Art. III, § 2, Madison's objection that it was "going too far to extend the jurisdiction of the Court generally to cases arising Under the Constitution, & whether it ought not to be limited to cases of a Judiciary Nature" was met by the answer that it was, in his own words, "generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature—." " Clear as this principle is, however, it was attacked in this Court on precisely the same grounds now asserted to sustain the diversity jurisdiction here in question. In Keller v. Potomac Electric Co., 261 U. S. 428 (1923), where this Court had before it an Act under which the courts of the District of Columbia were given revisory power over rates set by the Public Utilities Commission 2 Farrand, Records of the Federal Convention 341, hereinafter cited as Farrand. 5 Id. at 430. VINSON, C. J., dissenting. 337 U.S. of the District, the appellee sought to sustain the appellate jurisdiction given this Court by the Act on the basis that "Although Art. III of the Constitution limits the jurisdiction of the federal courts, this limitation is subject to the power of Congress to enlarge the jurisdiction, where such enlargement may reasonably be required to enable Congress to exercise the express powers conferred upon it by the Constitution." 261 U. S. at 435. There, as here, the power relied upon was that given Congress to exercise exclusive jurisdiction over the District of Columbia, and to make all laws necessary and proper to carry such powers into effect. But this Court clearly and unequivocally rejected the contention that Congress could thus extend the jurisdiction of constitutional courts, citing the note to Hayburn's Case, 2 Dall. 409, 410 (1792); United States v. Ferreira, 13 How. 40, note, p. 52 (1851), and Gordon v. United States, 117 U. S. 697 (1864). These and other decisions of this Court clearly condition the power of a constitutional court to take cognizance of any cause upon the existence of a suit instituted according to the regular course of judicial procedure, Marbury v. Madison, 1 Cranch 137 (1803), the power to pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision, Muskrat v. United States, 219 U. S. 346 (1911); Gordon v. United States, supra, the absence of revisory or appellate power in any other branch of Government, Hayburn's Case, supra; United States v. Ferreira, supra, and the absence of administrative or legislative issues or controversies, Keller v. Potomac Electric Co., supra; Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693 (1927). While “judicial power," "cases," and "controversies" have sometimes been given separate definitions, these concepts are inextricably intertwined. The term "Judicial power" was itself sub • See Muskrat v. United States, 219 U. S. 346, 356 (1911). 582 VINSON, C. J., dissenting. stituted for the phrase, "The jurisdiction of the Supreme Court" to conform Art. III to the use of the terms "legislative Powers" and "executive Power" in Arts. I and II. It thus draws life from that to which it extends: tó cases and controversies. That much, at any rate, is clear. Whether it draws life from any cases or controversies other than those specifically enumerated in Art. III must now be considered. The second principle, that any powers not specifically granted to the national judiciary by Art. III were reserved to the states or the people, is here challenged. The reason such an attack is possible at this late date is, ironically enough, because of the implicit acceptance of that principle by the framers, by Congress, and by litigants ever since. Unlike the question of the relations between the branches of government, which first arose during Washington's presidency and subsequently gave rise, in the cases previously adverted to, to frequent definition of the nature of cases and controversies, acceptance of the principle that Art. III contains a limitation on the power of the federal judiciary was so complete that the question did not often arise directly. Nevertheless, it is possible to demonstrate in a number of contexts the true intent of the framers. First, the examination and rejection of various alternative proposals concerning the jurisdiction of the Lational judiciary by the Convention throws considerable light upon the compromise reached. On the one hand 72 Farrand 425. The propriety of considering the proposals and debates of the Constitutional Convention was long ago considered by those most intimately concerned with its formulation. Washington, in his message to the House of Representatives refusing the demands of that body for the papers relating to Jay's treaty, stated: "If other proofs than these, and the plain letter of the Constitution itself, be necessary to ascertain the point under consideration, they may be found. VINSON, C. J., dissenting. 337 U.S. were those who thought that no inferior federal tribunals should be authorized; that state courts should be entrusted with the decision of all federal questions, subject to appeal to one Supreme Court. Madison's notes reveal that "Mr. Rutlidge havg. obtained a rule for reconsideration of the clause for establishing inferior tribunals under the national authority, now moved that that part of the clause . . should be expunged: arguing that the State Tribunals might and ought to be left in all cases to decide in the first instance the right of appeal to the supreme national tribunal being sufficient to secure the national rights & uniformity of Judgmts: that it was making an unnecessary encroachment on the jurisdiction of the States, and creating unnecessary obstacles to their adoption of the new system."9 The motion was carried and the clause establishing inferior federal tribunals excised from the draft Constitution. Madison, however, immediately moved "that the National Legislature be empowered to institute inferior tribunals," urging that some provision for such courts was a necessity in a federal system. Madison's notes then record the reaction of Pierce Butler of South Carolina to this proposal: in the Journals of the General Convention, which I have deposited in the office of the Department of State. In those Journals it will appear, that a proposition was made, 'that no Treaty should be binding on the United States which was not ratified by a law,' and that the proposition was explicitly rejected." 5 Annals of Congress, Fourth Congress, 1st Sess., p. 761. See also the comment of Madison at a later date. 9 Writings of James Madison 240. 1 Farrand 124. See the argument of Luther Martin before the Maryland House of Representatives opposing ratification of the Constitution in 3 Farrand 156. See also 2 Elliot, Debates 408; 3 id. at 562 et seq. . 582 VINSON, C. J., dissenting. " 10 "The people will not bear such innovations. The States will revolt at such encroachments. Supposing such an establishment to be useful, we must not venture on it. We must follow the example of Solon who gave the Athenians not the best Govt. he could devise; but the best they wd. receive." On the other hand, some members of the Convention favored a wider federal jurisdiction than was ultimately authorized. The Connecticut delegation, led by Roger Sherman, proposed "That the legislature of the United States be authorised to institute one supreme tribunal, and such other tribunals as they may judge necessary for the purpose aforesaid, and ascertain their respective powers and jurisdictions." " This proposal, which is not substantially different in its effect from the interpretation now urged upon us, was not adopted by the Convention. When it became established that inferior federal courts were to be authorized by the Constitution, the limits of their jurisdiction immediately became an issue of paramount importance. The outline of federal jurisdiction was established only after much give and take, proposal and counterproposal, and-in the endcompromise. It was early proposed, for example, that federal jurisdiction be made to extend to "all piracies & felonies on the high seas, captures from an enemy; cases in which foreigners or citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachments of any National officers, and questions which may involve the national peace and harmony." " 12 But this was only one of many proposals concerning the extent This account, taken from Madison's notes, is found in 1 Farrand 124-125. 11 3 Farrand 616. 12 1 Farrand at 22. |