does not bring his case within the operation of the rule, about which we are both agreed. Now the fact is, that in that part of the section now under consideration, there is no grant of legislative power. In the order of debate, this obvious point has been entirely overlooked. If instead of the words really used, the constitution had said, " Congress shall have power to extend the judicial power of the United States," to the cases enumerated, there would have been some plausibility, perhaps force, in the argument, if the question turned on that clause only. But the constitution does not speak this language. The language really spoken, is essentially different; so far from amounting to a grant of legislative power, the mode of exercising which might be discretionary, like that of calling out the militia; it is a grant of judicial power only, which congress cannot touch. It constitutes a grant and definition of judicial power, incorporated in the federal government, over which congress has no control. They can no more alter this constitutional definition of judicial jurisdiction or power, than they can alter the constitutional definition of treason-a project once set on foot, but speedily abandoned.

The doctrine then for which I contend is simply this; that although it be true, that where power is given to congress to do a particular act, such, for instance, as borrowing money on the credit of the United States, the means of effecting this object, are entirely at their discretion, it does not follow, and is not true, that where no legislative power is given, where on the contrary, the constitution has itself defined the cases to which the judicial power of the United States shall extend, congress have any right to prescribe the mode in which it shall be extended.

It is certain that congress are not expressly authorized by the constitution to prescribe the mode, in which the judicial power of the United States, shall be extended to cases of federal cognizance-and it is equally clear, that the power ascribed to them by the argument of Mr. W. is not necessary to carry any power existing under the constitution into effect. If this be No. XXIII.

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true, the discussion upon Mr. Wirt's own principles is at an end.

To ascertain whether this be true or not, let us see how the judicial power will stand on the constitution alone, without this legislative power in congress.

The true meaning of the recited clause is, that the courts of the United States shall have cognizance of certain cases, not exclusive, but concurrent with the courts of the several states. It has never yet been contended, that the words "the judicial power of the United States shall extend," &c. gave to the federal courts, exclusive jurisdiction. The state courts had jurisdiction before. But for the federal government, that jurisdiction would have been necessarily exclusive. When, therefore, the constitution used the words before mentioned, it would mean no more than this: that certain classes of cases which before its adoption, must of necessity have been brought into the state courts, might be brought before the federal tribunals. If brought there, the courts had jurisdiction over them by the express words of the constitution. But if they should be brought in the state courts, whose jurisdiction was anterior to the existence of the constitution, and entirely independent of it afterwards, they would be rightly in court, and might be finally decided. The jurisdiction, then, of the federal and state tribunals being concurrent, that is, standing on equal ground, each claiming to decide what is brought before it, and claiming no more, it is manifest that the words and meaning of the constitution are satisfied, if every case stated in the constitution can be originated in the federal courts; and it is equally clear that there can be no necessity for any sort of legislative interposition on the subject. The judicial power of the United States does not extend, in the proper sense of that word, that is, concurrently with the judicial power of the states, without the aid of the legislature, to all the enumerated cases.

But it may be said, that there is another argument, of a similar aspect, on this subject, which it may be more difficult to repel. It may be presented in this form. The constitution declares, that "the judicial power of the United States shall extend" to certain cases; and the 8th section of the first article, expressly authorizes congress to pass not only all laws necessary and proper, to carry into execution the foregoing powers; that is, the powers expressly granted to that body, but "all other powers vested by this constitution in the government of the United States, or in any department or officer thereof." Congress, therefore, it may be said, have a right under this clause, to make a law for the purpose of extending this judicial power of the United States, to every class of the enumerated cases, although without the aid of such law, they would be inaccessible by federal jurisdiction.

I regret that in answering this argument, I am obliged to touch in my progress, at a point, not indicated in the invitation given by the court. It cannot, however, in this part of our journey through the cause, be easily avoided.

Now, let it be observed, that there are only two classes of cases, which are not within the reach of the federal tribunals, without the aid of a law; two only, that is, cases depending before, and cases decided by a state tribunal. All other cases of federal cognizance, are within reach of the judicial power of the United States, by the help of the constitution only. These two classes of cases, are to be placed there by law. Does not this fact, the necessity of passing a law to operate especially on them, show distinctly that they ought to have been left untouched? If the power of the constitution itself announced in these high terms, "the judicial power of the United States shall extend," does not bring these cases before the federal judiciary, can a law effect it? Can a law give jurisdiction where the constitution cannot?

The proposition that the federal and state tribunals, have a concurrent jurisdiction, in relation to the enumerated cases, never having been denied, will be assumed to be true. Now, in my humble opinion, as already expressed, concurrence implies, on this subject, equality: that is, that each court shall entertain jurisdiction of the cases originated before it, and this is its meaning in relation to the concurrent jurisdiction of the federal courts. Cases brought before them, are never removed into the state courts. Cases decided by them, are finally decided. But, it seems that a little more is meant. In relation to the federal courts, it further means, that they may take cognizance of causes, removed from a state tribunal before trial, or revise them afterwards by appeal. It is not, moreover, apparent, that the same reasoning, which justifies the extension of the judicial power of the United States, to these cases, in this way, would justify its extension in any way, and give to congress a power to transfer by law, every case of federal cognizance, brought before a state tribunal, within the pale of the federal jurisdiction. According to the doctrine advanced by Mr. Wirt, as to the discretion of congress in selecting the mode of effecting an object, such would inevitably be the result.

But let us examine this point more minutely. "The judicial power of the United States shall extend," &c. Now, admit that congress have a right, under the 8th section, to make a law for the purpose of carrying into effect the judicial power of the United States. Let them have this power, and to what does it amount? The judicial power of the United States, is by the constitution, concurrent with that of the states, and so it must remain. But, this argument goes to show, that it may be exclusive and supreme.

A further remark on this point is submitted. The argument here controverted supposes that congress have a right to extend the judicial power of the United States to all cases in the enumerated classes, though depending before, or decided by a state tribunal. Thus, these words "the judicial power of the United States shall extend," &c. mean that congress shall have power to pass laws for the removal into the tribunals of the United States, of causes depending before a state tribunal, and to give to the former an appellate jurisdiction over the latter. That a power, so delicate in its character, and so important in its effect, should have been intended to be conveyed in this covered, subterraneous way, it is impossible to believe.

It may also, with propriety, be said that the constitution of the United States, when speaking of the cases to which the judicial power shall extend, must be considered as referring to existing cases. Now, cases decided cannot be regarded as existing cases. The original case is merged in the decision. A bond, on which a judgment is obtained, is swallowed up by the judgment.

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It is, however, unnecessary to press this point more. cording to my view of the subject, every argument founded on the clause of the constitution now reviewed, is irrelevant. The question before this court is, whether the Supreme court of the United States has appellate power over this court, the Supreme court of a state? Now this question is decided by a different clause of the constitution, by which the original, as well as appellate jurisdiction of the Supreme court is completely defined; and if, from a fair exposition, it appears that the Supreme court has not constitutionally appellate jurisdiction over the state tribunals, it is manifestly a waste of time to engage in a regular refutation of arguments, introduced to prove that congress will bestow it.

This brings us to the second ground taken by the counsel for the appellee. They say that the second paragraph of the second section of the third article of the constitution of the United States, in these words" In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be 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," gives to the Supreme court of the United States an appellate jurisdiction over the tribunals of a state, as well as over the inferior tribunals of the United States.

Various considerations present themselves at once, in opposition to this doctrine. They shall be briefly stated.

1. The object of the constitution, in this clause, is obviously to designate the cases in which, and not the courts over which the Supreme court shall have appellate jurisdiction. There is not a word said about courts.