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HAVING taken a general view of the great departments of the government of the United States, I proceed to a more precise examination of its powers and duties, and of the degree of subordination under which the state governments are constitutionally placed.

The constitution of the United States is an instrument containing the grant of specific powers, and the government of the Union cannot claim any powers but what are contained in the grant, and given either expressly or by necessary implication. The powers vested in the state governments by their respective constitutions, or remaining with the people of the several states prior to the establishment of the constitution of the United States, continue unaltered and unimpaired, except so far as they are granted to the United States. We are to ascertain the true construction of the constitution, and the precise extent of the residuary authorities of the several states, by the declared sense and practice of the governments respectively, when there is no collision; and in all other cases where the question is of a judicial nature, we are to ascertain it by the decisions of the Supreme Court of the United States; and those decisions ought to be studied and universally understood, in respect to all the leading questions of constitutional law. The people of the United States have declared the constitution to be the supreme law of the land, and it is entitled to universal and implicit obedience. Every act of Congress, and every act of the legislatures of the states, and every part of the constitution of any state, which is repugnant to the constitution VOL. I.


Test of constitutional


Original ju

risdiction of


of the United States, is necessarily void. This is a clear and settled principle of constitutional jurisprudence. The judicial power of the Union is declared to extend to all cases in law and equity arising under the constitution; and to the judicial power it belongs, whenever a case is judicially before it, to determine what is the supreme law of the land. The determination of the Supreme Court of the United States, in every such case, must be final and conclusive, because the constitution gives to that tribunal the power to decide, and gives no appeal from the decision.

With respect to the judicial power, it may be generally observed, as the Supreme Court declared, in the case of Turner v. The Bank of North America, that the disposal of the judicial power, except in a few specified cases, belongs to Congress; and the courts cannot exercise jurisdiction in every case to which the judicial power extends, without the intervention of Congress, who are not bound to enlarge the jurisdiction of the federal courts to every subject which the constitution might warrant. So again it has been decided, that Congress have not delegated the exercise of judicial power to the Circuit Courts, but in certain specified cases. The 11th section of the judiciary act of 1789, giving jurisdiction to the Circuit Courts, has not covered the whole ground of the constitution, and those courts cannot, for instance, issue a mandamus, but in those cases in which it may be necessary to the exercise of their jurisdiction.


The original jurisdiction of the Supreme Court is very the Supreme limited, and it has been decided that Congress have no power to extend it. It is confined by the constitution to those cases which affect ambassadors, other public ministers, and consuls, and to those in which a state is a party ; and

a 4 Dallas, 8.

b McIntyre v. Wood, 7 Cranch, 504.

c Smith v. Jackson, 1 Paine, 453.
d Marbury v. Madison, 1 Cranch, 137,
e Art. 3. Fec. 2,

it has been made a question, whether this original jurisdiction of the Supreme Court was intended by the constitution to be exclusive. The judiciary act of 1789 seems to have considered it to be competent for Congress to vest concurrent jurisdiction, in those specified cases, in other courts; for it gave a concurrent jurisdiction, in some of those cases, to the Circuit Courts. In the case of The United States v. Ravara,' this point arose in the Circuit Court for Pennsylvania district, and it was held that Congress could vest a concurrent jurisdiction in other courts, of those very cases over which the Supreme Court had original jurisdiction; and that the word original was not to be taken to imply exclusive cognizance of the cases enumerated. But the opinion of the Supreme Court of the United States, in Marbury v. Madison, goes far towards establishing the principle of exclusive jurisdiction in the Supreme Court in all those cases of original jurisdiction. This last case was considered, in Pennsylvania v. Kosloff, as shaking the decision in the case of Ravara; and yet the question was still left in doubt by the Supreme Court, in the case of the The United States v. Ortega, and a decision upon it was purposely waived.


Admitting this original jurisdiction of the Supreme Court may be shared by other courts in the discretion of Congress, it has been decided, as we shall presently see, that this original jurisdiction, cannot be enlarged, and that the Supreme Court cannot be vested, even by Congress, with any original jurisdiction in other cases than those described in the constitution. It is the appellate jurisdiction of the Supreme Court that clothes it with most of its dignity and efficacy, and renders it a constant object of attention and solicitude on the

a Act of Sept. 24th, 1789, sec. 13.

b 2 Dallas, 297.

c 1 Cranch, 137.

d 5 Serg. & Rawle, 545.

e 11 Wheaton, 467.


part of the governments and the people of the several states." (1.) The Supreme Court has appellate jurisdiction, in certain cases, over final decisions in state courts.

We have seen that, by the act of Congress of the 24th of September, 1789, sec. 25. a final judgment or decree in any suit in the highest court of law or equity of a state, where is drawn in question the validity of a treaty, and the decision is against its validity; or where is drawn in question the construction of a treaty, and the decision is against the title, right, or privilege, set up or claimed under it, may be reexamined, and reversed or affirmed, in the Supreme Court of the United States, upon a writ of error; and, upon reversal, the cause may be remanded for final decision, or the Supreme Court may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. The word final, in the judiciary act, is understood to apply to all judgments and decrees which determine the particular cause; and it is not to be confined to those judgments and decrees which are so final as to terminate all further or renewed litigation, in a new suit, on the same right. Under this appellate authority, it was declared, in the case of Clerke v. Harwood, 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 Virginia, upon a judgment in

a The Imperial Chamber and the Aulic Council in the Germanic Constitution were tribunals of appellate jurisdiction only. It was the original law of Germany, that no man could be sued, except in the state or province to which he belonged. 1 Hallam on the Middle Ages, 371, 2.

b Weston v. City Counsel of Charleston, 2 Peter's U. S. Rep. 494. e 3 Dallas, 343.

d 7 Cranch, 608.

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."

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; 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 interests, should require.

The judicial power of the United States is declared to extend to all cases arising under treaties made under the

a Martin v. Hunter, 1 Wheaton, 301.

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