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This was a writ of
error to the Court of appeals of the state of Virginia, founded upon the
refusal of that Court to obey the mandate of this Court, requiring the
judgment rendered in this same cause, at February Term, 1813, to be
carried into due execution. The following is the judgment of the Court
of appeals, rendered on the mandate:
The Court is unanimously of opinion that the
appellate power of the Supreme Court of the United States does not
[p*306] extend to this Court under a sound construction of the
Constitution of the United States; that so much of the 25th section of
the act of Congress, to establish the judicial courts of the United
States as extends the appellate jurisdiction of the Supreme Court to
this Court is not in pursuance of the Constitution of the United States.
That the writ of error in this cause was improvidently allowed under the
authority of that act; that the proceedings thereon in the Supreme Court
were coram non judice in relation to this Court, and that
obedience to its mandate be declined by the Court.
The original suit was an action of ejectment, brought by the defendant
in error in one of the district courts of Virginia, holden at
Winchester, for the recovery of a parcel of land, situate within that
tract, called the Northern Neck of Virginia, and part and parcel
thereof. A declaration in ejectment was served (April, 1791) on the
tenants in possession, whereupon Denny Fairfax (late Denny Martin), a
British subject, holding the land in question under the devise of the
late Thomas Lord Fairfax, was admitted to defend the suit, and plead the
general issue, upon the usual terms of confessing lease, entry, and
ouster, &c., and agreeing to insist, at the trial, on the title
only, &c. The facts being settled in the form of a case agreed to be
taken and considered as a special verdict, the Court, on consideration
thereof, gave judgment (24th of April, 1794) in favour of the defendant
in ejectment. From that judgment the plaintiff in ejectment (now
defendant in error) appealed to the Court of Appeals, [p*307] being the
highest court of law of Virginia. At April term, 1810, the Court of
appeals reversed the judgment of the district Court and gave judgment
for the then appellant, now defendant in error, and thereupon the case
was removed into this Court.
Statement of the facts as settled by the case agreed.
1st. The title of the late Lord Fairfax to all that entire territory and
tract of land called the Northern Neck of Virginia, the nature of his
estate in the same, as he inherited it, and the purport of the several
charters and grants from the Kings Charles II. and James II., under
which his ancestor held, are agreed to be truly recited in an Act of the
Assembly of Virginia, passed in the year 1736, [Vide Rev.Code, v. 1. ch.
3. p. 5] "For the confirming and better securing the titles to
lands in the Northern Neck, held under the Rt. Hon. Thomas Lord Fairfax,"
&c.;
From the recitals of the act, it appears that the first letters patent
(1 Car. II.) granting the land in question to Ralph Lord Hopton and
others, being surrendered in order to have the grant renewed, with
alterations, the Earl of St. Albans and others (partly survivors of, and
partly purchasers under, the first patentees) obtained new letters
patent (2 Car. II) for the same land and appurtenances, and by the same
description, but with additional privileges and reservations, &c.;
The estate granted is described to be,
All that entire tract, territory, or parcel of land, situate, &c.,
and bounded by, and within the heads of, the Rivers Rappahannock, &c.,
together with the rivers themselves, and all the islands, &c., and
all woods, underwoods, timber, &c., [p*308] mines of gold and
silver, lead, tin, &c., and quarries of stone and coal, &c., to
have, hold, and enjoy the said tract of land, &c. to the said
[patentees], their heirs and assigns forever, to their only use and
behoof, and to no other use, intent, or purpose whatsoever.
There is reserved to the crown the annual rent of 6l. 13s. 4d. "in
lieu of all services and demands whatsoever;" also one-fifth part
of all gold, and one-tenth part of all silver mines.
To the absolute title and seisin in fee of the land and its
appurtenance, and the beneficial use and enjoyment of the same, assured
to the patentees, as tenants in capite, by the most direct and abundant
terms of conveyancing, there are superadded certain collateral powers of
baronial dominion; reserving, however, to the Governor, Council and
Assembly of Virginia the exclusive authority in all the military
concerns of the granted territory, and the power to impose taxes on the
persons and property of its inhabitants for the public and common
defence of the colony, as well as a general jurisdiction over the
patentees, their heirs and assigns, and all other inhabitants of the
said territory.
In the enumeration of privileges specifically granted to the patentees,
their heirs and assigns, is that
freely and without molestation of the King, to give, grant, or by any
ways or means, sell or alien all and singular the granted premises, and
every part and parcel thereof, to any person or persons being willing to
contract for, or buy, the same.
There is also a condition to avoid the grant, as to so much of the
granted premises as should not be [p*309] possessed, inhabited, or
planted, by the means or procurement of the patentees, their heirs or
assigns, in the space of 21 years.
The third and last of the letters patent referred to (4 Jac. II) after
reciting a sale and conveyance of the granted premises by the former
patentees, to Thomas Lord Culpepper, "who was thereby become sole
owner and proprietor thereof, in fee simple," proceeds to confirm
the same to Lord Culpepper, in fee simple, and to release him from the
said condition, for having the lands inhabited or planted as aforesaid.
The said act of assembly then recites that Thomas Lord Fairfax, heir at
law of Lord Culpepper, had become "sole proprietor of the said
territory, with the appurtenances, and the above-recited letters patent."
By another act of assembly, passed in the year 1748 (Rev.Code, v. 1. ch.
4. p. 10), certain grants from the crown, made while the exact
boundaries of the Northern Neck were doubtful, for lands which proved to
be within those boundaries, as then recently settled and determined,
were, with the express consent of Lord Fairfax, confirmed to the
grantees, to be held, nevertheless, of him, and all the rents, services,
profits, and emoluments (reserved by such grants) to be paid and
performed to him.
In another Act of Assembly, passed May, 1779, for establishing a land
office, and ascertaining the terms and manner of granting waste and
unappropriated lands, there is the following clause, viz. (vide Chy.Rev.
of 1783, ch. 13. s. 6. p. 98.)
By another act of assembly, passed in the year 1748 (Rev.Code, v. 1. ch.
4. p. 10), certain grants from the crown, made while the exact
boundaries of the Northern Neck were doubtful, for lands which proved to
be within those boundaries, as then recently settled and determined,
were, with the express consent of Lord Fairfax, confirmed to the
grantees, to be held, nevertheless, of him, and all the rents, services,
profits, and emoluments (reserved by such grants) to be paid and
performed to him.
In another Act of Assembly, passed May, 1779, for establishing a land
office, and ascertaining the terms and manner of granting waste and
unappropriated lands, there is the following clause, viz. (vide Chy.Rev.
of 1783, ch. 13. s. 6. p. 98.)
And that the [p*310] proprietors of land within this Commonwealth may no
longer be subject to any servile, feudal, or precarious tenure, and to
prevent the danger to a free state from perpetual revenue, be it
enacted, that the royal mines, quit-rents, and all other reservations
and conditions in the patents or grants of land from the crown of
England, under the former government, shall be, and are hereby declared
null and void; and that all lands thereby respectively granted shall be
held in absolute and unconditional property, to all intents and purposes
whatsoever, in the same manner with the lands hereafter granted by the
Commonwealth, by virtue of this act.
2d. As respects the actual exercise of his proprietary rights by Lord
Fairfax.
It is agreed that he did, in the year 1748, open and conduct, at his own
expense, an office within the Northern Neck for granting and conveying
what he described and called the waste and ungranted lands therein, upon
certain terms, and according to certain rules by him established and
published; that he did, from time to time, grant parcels of such lands
in fee (the deeds being registered at his said office, in books kept for
that purpose, by his own clerks and agents); that, according to the
uniform tenor of such grants, he did, styling himself proprietor of the
Northern Neck, &c., in consideration of a certain composition to him
paid, and of certain annual rents therein reserved, grant, &c., with
a clause of reentry for non-payment of the rent, & c.; that he also
demised, for lives and terms of years, parcels of the same description
of lands, also reserving annual [p*311] rents; that he kept his said
office open for the purposes aforesaid, from the year 1748 till his
death, in December, 1781; during the whole of which period, and before,
he exercised the right of granting in fee, and demising for lives and
terms of years, as aforesaid, and received and enjoyed the rents
annually, as they accrued, as well under the grants in fee, as under the
leases for lives and years. It is also agreed that Lord Fairfax died
seised of lands in the Northern Neck equal to about 300,000 acres, which
had been granted by him in fee, to one T. B. Martin, upon the same terms
and conditions, and in the same form, as the other grants in fee before
described, which lands were, soon after being so granted, reconveyed to
Lord Fairfax in fee.
3d. Lord Fairfax, being a citizen and inhabitant of Virginia, died in
the month of December, 1781, and, by his last will and testament, duly
made and published, devised the whole of his lands, &c., called, or
known by the name of the Northern Neck of Virginia, in fee, to Denny
Fairfax, (the original defendant in ejectment), by the name and
description of the Reverend Denny Martin, &c., upon condition of his
taking the name and arms of Fairfax, &c., and it is admitted that he
fully complied with the conditions of the devise.
4th. It is agreed that Denny Fairfax, the devisee, was a native-born
British subject, and never became a citizen of the United States, nor
any one of them, but always resided in England, as well during the
Revolutionary War as from his birth, about the year 1750, to his death,
which happened some time between [p*312] the years 1796 and 1803, as
appears from the record of the proceedings in the Court of appeals.
It is also admitted that Lord Fairfax left, at his death, a nephew named
Thomas Bryan Martin, who was always a citizen of Virginia, being the
younger brother of the said devisee, and the second son of a sister of
the said Lord Fairfax; which sister was still living, and had always
been a British subject.
5th. The land demanded by this ejectment being agreed to be part and
parcel of the said territory and tract of land called the Northern Neck,
and to be a part of that description of lands within the Northern Neck,
called and described by Lord Fairfax as "waste and ungranted,"
and being also agreed never to have been escheated and seised into the
hands of the Commonwealth of Virginia, pursuant to certain acts of
assembly concerning escheators, and never to have been the subject of
any inquest of office, was contained and included in a certain patent,
bearing date the 30th of April, 1789, under the hand of the then
Governor, and the seal of the Commonwealth of Virginia, purporting that
the land in question is granted by the said Commonwealth unto David
Hunter (the lessor of the plaintiff in ejectment) and his heirs forever,
by virtue and in consideration of a land office treasury warrant, issued
the 23d of January, 1788. The said lessor of the plaintiff in ejectment
is, and always has been, a citizen of Virginia; and in pursuance of his
said patent, entered into the land in question, and was thereof
possessed, prior to the institution of the said action of ejectment.
[p*313]
6th. The definitive treaty of peace concluded in the year 1783, and the
treaty of amity, commerce, and navigation, of 1794, between the United
States of America and Great Britain, and also the several acts of the
Assembly of Virginia concerning the premises are referred to as making a
part of the case agreed.
Upon this state of facts, the judgment of the Court of appeals of
Virginia was reversed by this Court, at February term, 1813, and
thereupon the mandate above mentioned was issued to the Court of
appeals, which being disobeyed, the cause was again brought before this
Court. [p*323] | |
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STORY, J.,
delivered the opinion of the Court.
This is a writ of error from the Court of Appeals
of Virginia founded upon the refusal of that Court to obey the mandate
of this Court requiring the judgment rendered in this very cause, at
February Term, 1813, to be carried into due execution. The following is
the judgment of the Court of Appeals rendered on the mandate:
The Court is unanimously of opinion, that the
appellate power of the Supreme Court of the United States does not
extend to this Court, under a sound construction of the Constitution of
the United States; that so much of the 25th section of the act of
Congress to establish the judicial courts of the United States, as
extends the appellate jurisdiction of the Supreme Court to this Court,
is not in pursuance of the Constitution of the [p*324] United States;
that the writ of error in this cause was improvidently allowed under the
authority of that act; that the proceedings thereon in the Supreme Court
were coram non judice in relation to this Court, and that
obedience to its mandate be declined by the Court.
The questions involved in this judgment are of
great importance and delicacy. Perhaps it is not too much to affirm
that, upon their right decision rest some of the most solid principles
which have hitherto been supposed to sustain and protect the
Constitution itself. The great respectability, too, of the Court
whose decisions we are called upon to review, and the entire deference
which we entertain for the learning and ability of that Court, add much
to the difficulty of the task which has so unwelcomely fallen upon us.
It is, however, a source of consolation, that we have had the assistance
of most able and learned arguments to aid our inquiries; and that the
opinion which is now to be pronounced has been weighed with every
solicitude to come to a correct result, and matured after solemn
deliberation.
Before proceeding to the principal questions, it
may not be unfit to dispose of some preliminary considerations which
have grown out of the arguments at the bar.
The Constitution of the United States was
ordained and established not by the States in their sovereign
capacities, but emphatically, as the preamble of the Constitution
declares, by "the people of the United States." There can be
no doubt that it was competent to the people to invest the general
government [p*325] with all the powers which they might deem proper and
necessary, to extend or restrain these powers according to their own
good pleasure, and to give them a paramount and supreme authority. As
little doubt can there be that the people had a right to prohibit to the
States the exercise of any powers which were, in their judgment,
incompatible with the objects of the general compact, to make the powers
of the State governments, in given cases, subordinate to those of the
nation, or to reserve to themselves those sovereign authorities which
they might not choose to delegate to either.
The Constitution was not, therefore, necessarily
carved out of existing State sovereignties, nor a surrender of powers
already existing in State institutions, for the powers of the States
depend upon their own Constitutions, and the people of every State had
the right to modify and restrain them according to their own views of
the policy or principle. On the other hand, it is perfectly clear that
the sovereign powers vested in the State governments by their respective
Constitutions remained unaltered and unimpaired except so far as they
were granted to the Government of the United States.
These deductions do not rest upon general
reasoning, plain and obvious as they seem to be. They have been
positively recognised by one of the articles in amendment of the
Constitution, which declares that The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people. [p*326]
The government, then, of the United States can
claim no powers which are not granted to it by the Constitution, and the
powers actually granted, must be such as are expressly given, or given
by necessary implication. On the other hand, this instrument, like every
other grant, is to have a reasonable construction, according to the
import of its terms, and where a power is expressly given in general
terms, it is not to be restrained to particular cases unless that
construction grow out of the context expressly or by necessary
implication. The words are to be taken in their natural and obvious
sense, and not in a sense unreasonably restricted or enlarged. The
Constitution unavoidably deals in general language. It did not suit the
purposes of the people, in framing this great charter of our liberties,
to provide for minute specifications of its powers or to declare the
means by which those powers should be carried into execution. It was
foreseen that this would be a perilous and difficult, if not an
impracticable, task. The instrument was not intended to provide merely
for the exigencies of a few years, but was to endure through a long
lapse of ages, the events of which were locked up in the inscrutable
purposes of Providence. It could not be foreseen what new changes and
modifications of power might be indispensable to effectuate the general
objects of the charter, and restrictions and specifications which at the
present might seem salutary might in the end prove the overthrow of the
system itself. Hence its powers are expressed in general terms, leaving
to the legislature from time to [p*327] 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.
With these principles in view, principles in respect to which no
difference of opinion ought to be indulged, let us now proceed to the
interpretation of the Constitution so far as regards the great points in
controversy.
The third article of the Constitution is that
which must principally attract our attention. The 1st. section declares,
The judicial power of the United States shall be
vested in one Supreme Court, and in such other inferior Courts as the
Congress may, from time to time, ordain and establish. The 2d section
declares, that The judicial power shall extend to all cases in law or
equity, arising under this Constitution, the laws of the United States,
and the treaties made, or which shall be made, under their authority; to
all cases affecting ambassadors, other public ministers and consuls; to
all cases of admiralty and maritime jurisdiction; to controversies to
which the United States shall be a party; to controversies between two
or more States; between a State and citizens of another State; between
citizens of different States; between citizens of the same State,
claiming lands under the grants of different States; and between a State
or the citizens thereof, and foreign States, citizens, or subjects.
It then proceeds to declare, that
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. [p*328] 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.
Such is the language of the article creating and
defining the judicial power of the United States. It is the voice of the
whole American people solemnly declared, in establishing one great
department of that Government which was, in many respects, national, and
in all, supreme. It is a part of the very same instrument which was to
act not merely upon individuals, but upon States, and to deprive them
altogether of the exercise of some powers of sovereignty and to restrain
and regulate them in the exercise of others.
Let this article be carefully weighed and
considered. The language of the article throughout is manifestly
designed to be mandatory upon the Legislature. Its obligatory force is
so imperative, that Congress could not, without a violation of its duty,
have refused to carry it into operation. The judicial power of the
United States shall be vested (not may be vested) in one Supreme Court,
and in such inferior Courts as Congress may, from time to time, ordain
and establish. Could Congress have lawfully refused to create a Supreme
Court, or to vest in it the constitutional jurisdiction?
The judges, both of the supreme and inferior courts, shall hold their
offices during good behaviour, and shall, at stated times, receive, for
their services, a compensation which shall not be diminished during
their continuance in office.
Could Congress create or limit any other tenure of [p*329] the judicial
office? Could they refuse to pay at stated times the stipulated salary,
or diminish it during the continuance in office? But one answer can be
given to these questions: it must be in the negative. The object of the
Constitution was to establish three great departments of Government --
the legislative, the executive, and the judicial departments. The first
was to pass laws, the second to approve and execute them, and the third
to expound and enforce them. Without the latter, it would be impossible
to carry into effect some of the express provisions of the Constitution.
How, otherwise, could crimes against the United States be tried and
punished? How could causes between two States be heard and determined?
The judicial power must, therefore, be vested in some court by Congress;
and to suppose that it was not an obligation binding on them, but might,
at their pleasure, be omitted or declined, is to suppose that, under the
sanction of the Constitution, they might defeat the Constitution itself,
a construction which would lead to such a result cannot be sound.
The same expression, "shall be vested," occurs in other parts
of the Constitution in defining the powers of the other coordinate
branches of the Government. The first article declares that "all
legislative powers herein granted shall be vested in a Congress of the
United States." Will it be contended that the legislative power is
not absolutely vested? that the words merely refer to some future act,
and mean only that the legislative power may hereafter be vested? The
second article declares that "the [p*330] executive power shall be
vested in a President of the United States of America." Could
Congress vest it in any other person, or is it to await their good
pleasure whether it is to vest at all? It is apparent that such a
construction, in either case, would be utterly inadmissible. Why, then,
is it entitled to a better support in reference to the judicial
department?
If, then, it is a duty of Congress to vest the
judicial power of the United States, it is a duty to vest the whole
judicial power. The language, if imperative as to one part, is
imperative as to all. If it were otherwise, this anomaly would
exist, that Congress might successively refuse to vest the jurisdiction
in any one class of cases enumerated in the Constitution, and thereby
defeat the jurisdiction as to all, for the Constitution has not singled
out any class on which Congress are bound to act in preference to
others.
The next consideration is as to the Courts in which the judicial power
shall be vested. It is manifest that a Supreme Court must be
established; but whether it be equally obligatory to establish inferior
Courts is a question of some difficulty. If Congress may lawfully omit
to establish inferior Courts, it might follow that, in some of the
enumerated cases, the judicial power could nowhere exist. The Supreme
Court can have original jurisdiction in two classes of cases only, viz.,
in cases affecting ambassadors, other public ministers and consuls, and
in cases in which a State is a party. Congress cannot vest any portion
of the judicial power of the United States except in Courts ordained and
established by [p*331] itself, and if, in any of the cases enumerated in
the Constitution, the State courts did not then possess jurisdiction,
the appellate jurisdiction of the Supreme Court (admitting that it could
act on State courts) could not reach those cases, and, consequently, the
injunction of the Constitution that the judicial power "shall be
vested," would be disobeyed. It would seem therefore to follow that
Congress are bound to create some inferior Courts in which to vest all
that jurisdiction which, under the Constitution, is exclusively vested
in the United States, and of which the Supreme Court cannot take
original cognizance. They might establish one or more inferior Courts;
they might parcel out the jurisdiction among such Courts, from time to
time, at their own pleasure. But the whole judicial power of the United
States should be at all times vested, either in an original or appellate
form, in some Courts created under its authority.
This construction will be fortified by an attentive examination of the
second section of the third article. The words are "the judicial
power shall extend," &c. Much minute and elaborate criticism
has been employed upon these words. It has been argued that they are
equivalent to the words "may extend," and that "extend"
means to widen to new cases not before within the scope of the power.
For the reason which have been already stated, we are of opinion that
the words are used in an imperative sense. They import an absolute grant
of judicial power. They cannot have a relative signification applicable
to powers already granted, for the American people [p*332] had not made
any previous grant. The Constitution was for a new Government, organized
with new substantive powers, and not a mere supplementary charter to a
Government already existing. The Confederation was a compact between
States, and its structure and powers were wholly unlike those of the
National Government. The Constitution was an act of the people of the
United States to supersede the Confederation, and not to be ingrafted on
it, as a stock through which it was to receive life and nourishment.
If, indeed, the relative signification could be fixed upon the term "extend,"
it could not (as we shall hereafter see) subserve the purposes of the
argument in support of which it has been adduced. This imperative sense
of the words "shall extend" is strengthened by the context.
It is declared that, "in all cases affecting
ambassadors, &c., that the Supreme Court shall have original
jurisdiction." Could Congress withhold original jurisdiction in
these cases from the Supreme Court? The clause proceeds --
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.
The very exception here shows that the framers of the Constitution used
the words in an imperative sense. What necessity could there exist for
this exception if the preceding words were not used in that sense?
Without such exception, Congress would, by the preceding words, have
possessed a complete power to regulate the appellate jurisdiction, if
the language were [p*333] only equivalent to the words "may have"
appellate jurisdiction. It is apparent, then, that the exception was
intended as a limitation upon the preceding words, to enable Congress to
regulate and restrain the appellate power, as the public interests
might, from time to time, require.
Other clauses in the Constitution might be brought in aid of this
construction, but a minute examination of them cannot be necessary, and
would occupy too much time. It will be found that whenever a particular
object is to be effected, the language of the Constitution is always
imperative, and cannot be disregarded without violating the first
principles of public duty. On the other hand, the legislative powers are
given in language which implies discretion, as, from the nature of
legislative power, such a discretion must ever be exercised.
It being, then, established that the language of this clause is
imperative, the next question is as to the cases to which it shall
apply. The answer is found in the Constitution itself. The judicial
power shall extend to all the cases enumerated in the Constitution. As
the mode is not limited, it may extend to all such cases, in any form,
in which judicial power may be exercised. It may therefore extend to
them in the shape of original or appellate jurisdiction, or both, for
there is nothing in the nature of the cases which binds to the exercise
of the one in preference to the other.
In what cases (if any) is this judicial power exclusive, or exclusive at
the election of Congress? It will be observed that there are two classes
of cases enumerated [p*334] in the Constitution between which a
distinction seems to be drawn. The first class includes cases arising
under the Constitution, laws, and treaties of the United States, cases
affecting ambassadors, other public ministers and consuls, and cases of
admiralty and maritime jurisdiction. In this class, the expression is,
and that the judicial power shall extend to all cases; but in the
subsequent part of the clause which embraces all the other cases of
national cognizance, and forms the second class, the word "all"
is dropped, seemingly ex industria. Here the judicial authority
is to extend to controversies (not to all controversies) to which the
United States shall be a party, &c. From this difference of
phraseology, perhaps, a difference of constitutional intention may, with
propriety, be inferred. It is hardly to be presumed that the variation
in the language could have been accidental. It must have been the result
of some determinate reason, and it is not very difficult to find a
reason sufficient to support the apparent change of intention. In
respect to the first class, it may well have been the intention of the
framers of the Constitution imperatively to extend the judicial power
either in an original or appellate form to all cases, and in the latter
class to leave it to Congress to qualify the jurisdiction, original or
appellate, in such manner as public policy might dictate.
The vital importance of all the cases enumerated in the first class to
the national sovereignty might warrant such a distinction. In the first
place, as to cases arriving under the Constitution, laws, and treaties
of the United States. Here the State courts [p*335] could not ordinarily
possess a direct jurisdiction. The jurisdiction over such cases could
not exist in the State courts previous to the adoption of the
Constitution, and it could not afterwards be directly conferred on them,
for the Constitution expressly requires the judicial power to be vested
in courts ordained and established by the United States. This class of
cases would embrace civil as well as criminal jurisdiction, and affect
not only our internal policy, but our foreign relations. It would
therefore be perilous to restrain it in any manner whatsoever, inasmuch
as it might hazard the national safety. The same remarks may be urged as
to cases affecting ambassadors, other public ministers, and consuls, who
are emphatically placed under the guardianship of the law of nations,
and as to cases of admiralty and maritime jurisdiction, the admiralty
jurisdiction embraces all questions of prize and salvage, in the correct
adjudication of which foreign nations are deeply interested; it embraces
also maritime torts, contracts, and offences, in which the principles of
the law and comity of nations often form an essential inquiry. All these
cases, then, enter into the national policy, affect the national rights,
and may compromit the national sovereignty. The original or appellate
jurisdiction ought not therefore to be restrained, but should be
commensurate with the mischiefs intended to be remedied, and, of course,
should extend to all cases whatsoever.
A different policy might well be adopted in reference to the second
class of cases, for although it might be fit that the judicial power
should extend [p*336] to all controversies to which the United States
should be a party, yet this power night not have been imperatively
given, least it should imply a right to take cognizance of original
suits brought against the United States as defendants in their own
Courts. It might not have been deemed proper to submit the sovereignty
of the United States, against their own will to judicial cognizance,
either to enforce rights or to prevent wrongs; and as to the other cases
of the second class, they might well be left to be exercised under the
exceptions and regulations which Congress might, in their wisdom, choose
to apply. It is also worthy of remark that Congress seem, in a good
degree, in the establishment of the present judicial system, to have
adopted this distinction. In the first class of cases, the jurisdiction
is not limited except by the subject matter; in the second, it is made
materially to depend upon the value in controversy.
We do not, however, profess to place any implicit reliance upon the
distinction which has here been stated and endeavoured to be
illustrated. It has the rather been brought into view in deference to
the legislative opinion, which has so long acted upon, and enforced this
distinction. But there is, certainly, vast weight in the argument which
has been urged that the Constitution is imperative upon Congress to vest
all the judicial power of the United States, in the shape of original
jurisdiction, in the Supreme and inferior courts created under its own
authority. At all events, whether the one construction or the other
prevail, it is manifest that the judicial power of the [p*337] United
States is unavoidably, in some cases, exclusive of all State authority,
and in all others, may be made so at the election of Congress. No part
of the criminal jurisdiction of the United States can, consistently with
the Constitution, be delegated to State tribunals. The admiralty and
maritime jurisdiction is of the same exclusive cognizance, and it can
only be in those cases where, previous to the Constitution, State
tribunals possessed jurisdiction independent of national authority that
they can now constitutionally exercise a concurrent jurisdiction.
Congress, throughout the Judicial Act, and particularly in the 9th,
11th, and 13th sections, have legislated upon the supposition that, in
all the cases to which the judicial powers of the United States
extended, they might rightfully vest exclusive jurisdiction in their own
Courts.
But even admitting that the language of the Constitution is not
mandatory, and that Congress may constitutionally omit to vest the
judicial power in Courts of the United States, it cannot be denied that,
when it is vested, it may be exercised to the utmost constitutional
extent.
This leads us to the consideration of the great
question as to the nature and extent of the appellate jurisdiction of
the United States. We have already seen that appellate jurisdiction is
given by the Constitution to the Supreme Court in all cases where it has
not original jurisdiction, subject, however, to such exceptions and
regulations as Congress may prescribe. It is therefore capable of
embracing every case enumerated in the Constitution which is not
exclusively to be decided by way of original [p*338] jurisdiction. But
the exercise of appellate jurisdiction is far from being limited by the
terms of the Constitution to the Supreme Court. There can be no doubt
that Congress may create a succession of inferior tribunals, in each of
which it may vest appellate as well as original jurisdiction. The
judicial power is delegated by the Constitution in the most general
terms, and may therefore be exercised by Congress under every variety of
form of appellate or original jurisdiction. And as there is nothing in
the Constitution which restrains or limits this power, it must
therefore, in all other cases, subsist in the utmost latitude of which,
in its own nature, it is susceptible.
As, then, by the terms of the Constitution, the
appellate jurisdiction is not limited as to the Supreme Court, and as to
this Court it may be exercised in all other cases than those of which it
has original cognizance, what is there to restrain its exercise over
State tribunals in the enumerated cases? The appellate power is not
limited by the terms of the third article to any particular Courts. The
words are, "the judicial power (which includes appellate power)
shall extend to all cases," &c., and "in all other cases
before mentioned, the Supreme Court shall have appellate jurisdiction."
It is the case, then, and not the court, that gives the jurisdiction. If
the judicial power extends to the case, it will be in vain to search in
the letter of the Constitution for any qualification as to the tribunal
where it depends. It is incumbent, then, upon those who assert
such a qualification to show its existence by necessary implication. If
the [p*339] text be clear and distinct, no restriction upon its plain
and obvious import ought to be admitted, unless the inference be
irresistible.
If the Constitution meant to limit the appellate jurisdiction to cases
pending in the Courts of the United States, it would necessarily follow
that the jurisdiction of these Courts would, in all the cases enumerated
in the Constitution, be exclusive of State tribunals. How otherwise
could the jurisdiction extend to all cases arising under the
Constitution, laws, and treaties of the United States, or to all cases
of admiralty and maritime jurisdiction? If some of these cases might be
entertained by State tribunals, and no appellate jurisdiction as to them
should exist, then the appellate power would not extend to all, but to
some, cases. If State tribunals might exercise concurrent jurisdiction
over all or some of the other classes of cases in the Constitution
without control, then the appellate jurisdiction of the United States
might, as to such cases, have no real existence, contrary to the
manifest intent of the Constitution. Under such circumstances, to give
effect to the judicial power, it must be construed to be exclusive, and
this not only when the casus foederis should arise directly, but
when it should arise incidentally in cases pending in State courts. This
construction would abridge the jurisdiction of such Court far more than
has been ever contemplated in any act of Congress.
On the other hand, if, as has been contended, a discretion be vested in
Congress to establish or not to establish inferior Courts, at their own
pleasure, and [p*340] Congress should not establish such Courts, the
appellate jurisdiction of the Supreme Court would have nothing to act
upon unless it could act upon cases pending in the State courts. Under
such circumstances it must be held that the appellate power would extend
to State courts, for the Constitution is peremptory that it shall extend
to certain enumerated cases, which cases could exist in no other Courts.
Any other construction, upon this supposition, would involve this
strange contradiction that a discretionary power vested in Congress, and
which they might rightfully omit to exercise, would defeat the absolute
injunctions of the Constitution in relation to the whole appellate
power.
But it is plain that the framers of the
Constitution did contemplate that cases within the judicial cognizance
of the United States not only might, but would, arise in the State
courts in the exercise of their ordinary jurisdiction. With this view,
the sixth article declares, that
This Constitution, and the laws of the United
States which shall be made in pursuance thereof, and all treaties made,
or which shall be made, under the authority of the United States, shall
be the supreme law of the land, and the judges in every State shall be
bound thereby, anything in the Constitution or laws of any State to the
contrary notwithstanding.
It is obvious that this obligation is imperative
upon the State judges in their official, and not merely in their
private, capacities. From the very nature of their judicial duties, they
would be called upon to pronounce the law applicable to the case in
judgment. They were not to decide merely [p*341] according to the laws
or Constitution of the State, but according to the Constitution, laws
and treaties of the United States -- "the supreme law of the land."
A moment's consideration will show us the necessity and propriety of
this provision in cases where the jurisdiction of the State courts is
unquestionable. Suppose a contract for the payment of money is made
between citizens of the same State, and performance thereof is sought in
the courts of that State; no person can doubt that the jurisdiction
completely and exclusively attaches, in the first instance, to such
courts. Suppose at the trial the defendant sets up in his defence a
tender under a State law making paper money a good tender, or a State
law impairing the obligation of such contract, which law, if binding,
would defeat the suit. The Constitution of the United States has
declared that no State shall make any thing but gold or silver coin a
tender in payment of debts, or pass a law impairing the obligation of
contracts. If Congress shall not have passed a law providing for the
removal of such a suit to the courts of the United States, must not the
State court proceed to hear and determine it? Can a mere plea in defence
be, of itself, a bar to further proceedings, so as to prohibit an
inquiry into its truth or legal propriety when no other tribunal exists
to whom judicial cognizance of such cases is confided? Suppose an
indictment for a crime in a State court, and the defendant should allege
in his defence that the crime was created by an ex post facto act of the
State, must not the State court, in the exercise of a jurisdiction which
has already rightfully attached, have a [p*342] right to pronounce on
the validity and sufficiency of the defence? It would be extremely
difficult, upon any legal principles, to give a negative answer to these
inquiries. Innumerable instances of the same sort might be stated in
illustration of the position, and unless the State courts could sustain
jurisdiction in such cases, this clause of the sixth article would be
without meaning or effect, and public mischiefs of a most enormous
magnitude would inevitably ensue.
It must therefore be conceded that the
Constitution not only contemplated, but meant to provide for, cases
within the scope of the judicial power of the United States which might
yet depend before State tribunals. It was foreseen that, in the exercise
of their ordinary jurisdiction, State courts would incidentally take
cognizance of cases arising under the Constitution, the laws, and
treaties of the United States. Yet to all these cases the judicial
power, by the very terms of the Constitution, is to extend. It cannot
extend by original jurisdiction if that was already rightfully and
exclusively attached in the State courts, which (as has been already
shown) may occur; it must therefore extend by appellate jurisdiction, or
not at all. It would seem to follow that the appellate power of the
United States must, in such cases, extend to State tribunals; and if in
such cases, there is no reason why it should not equally attach upon all
others within the purview of the Constitution.
It has been argued that such an appellate
jurisdiction over State courts is inconsistent with the genius [p*343]
of our Governments, and the spirit of the Constitution. That the latter
was never designed to act upon State sovereignties, but only upon the
people, and that, if the power exists, it will materially impair the
sovereignty of the States, and the independence of their courts. We
cannot yield to the force of this reasoning; it assumes principles which
we cannot admit, and draws conclusions to which we do not yield our
assent.
It is a mistake that the Constitution was not
designed to operate upon States in their corporate capacities. It is
crowded with provisions which restrain or annul the sovereignty of the
States in some of the highest branches of their prerogatives. The tenth
section of the first article contains a long list of disabilities and
prohibitions imposed upon the States. Surely, when such essential
portions of State sovereignty are taken away or prohibited to be
exercised, it cannot be correctly asserted that the Constitution does
not act upon the States. The language of the Constitution is also
imperative upon the States as to the performance of many duties. It is
imperative upon the State legislatures to make laws prescribing the
time, places, and manner of holding elections for senators and
representatives, and for electors of President and Vice-President. And
in these as well as some other cases, Congress have a right to revise,
amend, or supersede the laws which may be passed by State legislatures.
When therefore the States are stripped of some of the highest attributes
of sovereignty, and the same are given to the United States; when the
legislatures of the States are, in some [p*344] respects, under the
control of Congress, and in every case are, under the Constitution,
bound by the paramount authority of the United States, it is certainly
difficult to support the argument that the appellate power over the
decisions of State courts is contrary to the genius of our institutions.
The courts of the United States can, without question, revise the
proceedings of the executive and legislative authorities of the States,
and if they are found to be contrary to the Constitution, may declare
them to be of no legal validity. Surely the exercise of the same right
over judicial tribunals is not a higher or more dangerous act of
sovereign power.
Nor can such a right be deemed to impair the
independence of State judges. It is assuming the very ground in
controversy to assert that they possess an absolute independence of the
United States. In respect to the powers granted to the United States,
they are not independent; they are expressly bound to obedience by the
letter of the Constitution, and if they should unintentionally transcend
their authority or misconstrue the Constitution, there is no more reason
for giving their judgments an absolute and irresistible force than for
giving it to the acts of the other coordinate departments of State
sovereignty.
The argument urged from the possibility of the
abuse of the revising power is equally unsatisfactory. It is
always a doubtful course to argue against the use or existence of a
power from the possibility of its abuse. It is still more difficult by
such an argument to ingraft upon a general power a restriction [p*345]
which is not to be found in the terms in which it is given.
From the very nature of things, the absolute
right of decision, in the last resort, must rest somewhere -- wherever
it may be vested, it is susceptible of abuse. In all questions of
jurisdiction, the inferior or appellate court must pronounce the final
judgment; and common sense, as well as legal reasoning, has conferred it
upon the latter.
It has been further argued against the existence of this appellate power
that it would form a novelty in our judicial institutions. This is
certainly a mistake. In the Articles of Confederation, an instrument
framed with infinitely more deference to State rights and State
jealousies, a power was given to Congress to establish "courts for
revising and determining, finally, appeals in all cases of captures."
It is remarkable that no power was given to entertain original
jurisdiction in such cases, and consequently the appellate power
(although not so expressed in terms) was altogether to be exercised in
revising the decisions of State tribunals. This was, undoubtedly, so far
a surrender of State sovereignty, but it never was supposed to be a
power fraught with public danger or destructive of the independence of
State judges. On the contrary, it was supposed to be a power
indispensable to the public safety, inasmuch as our national rights
might otherwise be compromitted and our national peace been dangered.
Under the present Constitution, the prize jurisdiction is confined to
the courts of the United States, and a power to revise the decisions of
State courts, if they should assert jurisdiction over prize causes,
cannot be less [p*346] important or less useful than it was under the
Confederation.
In this connexion, we are led again to the construction of the words of
the Constitution, "the judicial power shall extend," &c.
If, as has been contended at the bar, the term "extend" have a
relative signification, and mean to widen an existing power, it will
then follow, that, as the confederation gave an appellate power over
State tribunals, the Constitution enlarged or widened that appellate
power to all the other cases in which jurisdiction is given to the
Courts of the United States. It is not presumed that the learned counsel
would choose to adopt such a conclusion. It is further argued that no
great public mischief can result from a construction which shall limit
the appellate power of the United States to cases in their own Courts,
first because State judges are bound by an oath to support the
Constitution of the United States, and must be presumed to be men of
learning and integrity, and secondly because Congress must have an
unquestionable right to remove all cases within the scope of the
judicial power from the State courts to the courts of the United States
at any time before final judgment, though not after final judgment. As
to the first reason -- admitting that the judges of the State courts
are, and always will be, of as much learning, integrity, and wisdom as
those of the courts of the United States (which we very cheerfully
admit), it does not aid the argument. It is manifest that the
Constitution has proceeded upon a theory of its own, and given or
withheld [p*347] powers according to the judgment of the American
people, by whom it was adopted. We can only construe its powers, and
cannot inquire into the policy or principles which induced the grant of
them. The Constitution has presumed (whether rightly or wrongly we do
not inquire) that State attachments, State prejudices, State jealousies,
and State interests might sometimes obstruct or control, or be supposed
to obstruct or control, the regular administration of justice. Hence, in
controversies between States, between citizens of different States,
between citizens claiming grants under different States, between a State
and its citizens, or foreigners, and between citizens and foreigners, it
enables the parties, under the authority of Congress, to have the
controversies heard, tried, and determined before the national
tribunals. No other reason than that which has been stated can be
assigned why some, at least, of those cases should not have been left to
the cognizance of the State courts. In respect to the other enumerated
cases -- the cases arising under the Constitution, laws, and treaties of
the United States, cases affecting ambassadors and other public
ministers, and cases of admiralty and maritime jurisdiction -- reasons
of a higher and more extensive nature, touching the safety, peace, and
sovereignty of the nation, might well justify a grant of exclusive
jurisdiction.
This is not all. A motive of another kind,
perfectly compatible with the most sincere respect for State tribunals,
might induce the grant of appellate power over their decisions. That
motive is the importance, and even necessity, of uniformity of decisions
[p*348] throughout the whole United States upon all subjects within the
purview of the Constitution. Judges of equal learning and integrity in
different States might differently interpret a statute or a treaty of
the United States, or even the Constitution itself; if there were no
revising authority to control these jarring and discordant judgments and
harmonize them into uniformity, the laws, the treaties, and the
Constitution of the United States would be different in different
States, and might perhaps never have precisely the same construction,
obligation, or efficacy in any two States. The public mischiefs that
would attend such a State of things would be truly deplorable, and it
cannot be believed that they could have escaped the enlightened
convention which formed the Constitution. What, indeed, might
then have been only prophecy has now become fact, and the appellate
jurisdiction must continue to be the only adequate remedy for such
evils.
There is an additional consideration, which is
entitled to great weight. The Constitution of the United States was
designed for the common and equal benefit of all the people of the
United States. The judicial power was granted for the same benign and
salutary purposes. It was not to be exercised exclusively for the
benefit of parties who might be plaintiffs, and would elect the national
forum, but also for the protection of defendants who might be entitled
to try their rights, or assert their privileges, before the same forum.
Yet, if the construction contended for be correct, it will follow that,
as the plaintiff may always elect the State court, the defendant [p*349]
may be deprived of all the security which the Constitution intended in
aid of his rights. Such a State of things can in no respect be
considered as giving equal rights. To obviate this difficulty, we are
referred to the power which it is admitted Congress possess to remove
suits from State courts to the national Courts, and this forms
the second ground upon which the argument we are considering has been
attempted to be sustained.
This power of removal is not to be found in express terms in any part of
the Constitution; if it be given, it is only given by implication, as a
power necessary and proper to carry into effect some express power. The
power of removal is certainly not, in strictness of language; it
presupposes an exercise of original jurisdiction to have attached
elsewhere. The existence of this power of removal
is familiar in courts acting according to the course of the common law
in criminal as well as civil cases, and it is exercised before as well
as after judgment. But this is always deemed in both cases an exercise
of appellate, and not of original, jurisdiction. If, then, the right of
removal be included in the appellate jurisdiction, it is only because it
is one mode of exercising that power, and as Congress is not limited by
the Constitution to any particular mode or time of exercising it, it may
authorize a removal either before or after judgment. The time, the
process, and the manner must be subject to its absolute legislative
control. A writ of error is indeed but a process which removes the
record of one court to the possession of another court, [p*350] and
enables the latter to inspect the proceedings, and give such judgment as
its own opinion of the law and justice of the case may warrant.
There is nothing in the nature of the process which forbids it from
being applied by the legislature to interlocutory as well as final
judgments. And if the right of removal from State
courts exist before judgment, because it is included in the appellate
power, it must for the same reason exist after judgment. And if
the appellate power by the Constitution does not include cases pending
in State courts, the right of removal, which is but a mode of exercising
that power, cannot be applied to them. Precisely the same objections
therefore exist as to the right of removal before judgment as after, and
both must stand or fall together. Nor, indeed, would the force of the
arguments on either side materially vary if the right of removal were an
exercise of original jurisdiction. It would equally trench upon the
jurisdiction and independence of State tribunals.
The remedy, too, of removal of suits would be
utterly inadequate to the purposes of the Constitution if it could act
only on the parties, and not upon the State courts. In respect to
criminal prosecutions, the difficulty seems admitted to be
insurmountable; and in respect to civil suits, there would, in many
cases, be rights without corresponding remedies. If State courts should
deny the constitutionality of the authority to remove suits from their
cognizance, in what manner could they be compelled to relinquish the
jurisdiction? In respect to criminal cases, there would at once be an
end of all control, and the [p*351] state decisions would be paramount
to the Constitution; and though, in civil suits, the courts of
the United States might act upon the parties, yet the State courts might
act in the same way, and this conflict of jurisdictions would not only
jeopardise private rights, but bring into imminent peril the public
interests.
On the whole, the Court are of opinion that the
appellate power of the United States does extend to cases pending in the
State courts, and that the 25th section of the judiciary act, which
authorizes the exercise of this jurisdiction in the specified cases by a
writ of error, is supported by the letter and spirit of the
Constitution. We find no clause in that instrument which limits this
power, and we dare not interpose a limitation where the people have not
been disposed to create one.
Strong as this conclusion stands upon the general language of the
Constitution, it may still derive support from other sources.
It is an historical fact that this exposition of
the Constitution, extending its appellate power to State courts, was,
previous to its adoption, uniformly and publicly avowed by its friends
and admitted by its enemies as the basis of their respective reasonings,
both in and out of the State conventions. It is an historical fact that,
at the time when the Judiciary Act was submitted to the deliberations of
the first Congress, composed, as it was, not only of men of great
learning and ability but of men who had acted a principal part in
framing, supporting, or opposing that Constitution, the same exposition
was explicitly declared and admitted by the friends and by the opponents
of that system. It [p*352] is an historical fact that the Supreme Court
of the United States have, from time to time, sustained this appellate
jurisdiction in a great variety of cases brought from the tribunals of
many of the most important States in the Union, and that no State
tribunal has ever breathed a judicial doubt on the subject, or declined
to obey the mandate of the Supreme Court until the present occasion.
This weight of contemporaneous exposition by all parties, this
acquiescence of enlightened State courts, and these judicial decisions
of the Supreme Court through so long a period do, as we think, place the
doctrine upon a foundation of authority which cannot be shaken without
delivering over the subject to perpetual and irremediable doubts.
The next question which has been argued is whether the case at bar be
within the purview of the 25th section of the Judiciary Act, so that
this Court may rightfully sustain the present writ of error. This
section, stripped of passages unimportant in this inquiry, enacts, in
substance, that 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 or statute of, or an authority excised under, the
United States, and the decision is against their validity, or where is
drawn in question the validity of a statute of, or an authority
exercised under, any State, on the ground of their being repugnant to
the Constitution, treaties, or laws, of the United States, and the
decision is in favour of such their validity, or of the Constitution, or
of a treaty or statute of, or commission held under, the United [p*353]
States, and the decision is against the title, right, privilege, or
exemption specially set up or claimed by either party under such clause
of the said Constitution, treaty, statute, or commission, may be
reexamined and reversed or affirmed in the Supreme Court of the United
States upon a writ of error in the same manner, and under the same
regulations, and the writ shall have the same effect, as if the judgment
or decree complained of had been rendered or passed in a Circuit Court,
and the proceeding upon the reversal shall also be the same, except that
the Supreme Court, instead of remanding the cause for a final decision,
as before provided, may, at their discretion, if the cause shall have
been once remanded before, proceed to a final decision of the same and
award execution. But no other error shall be assigned or regarded as a
ground of reversal in any such case as aforesaid, than such as appears
upon the face of the record, and immediately respects the
before-mentioned question of validity or construction of the said
Constitution, treaties, statutes, commissions, or authorities in
dispute.
That the present writ of error is founded upon a judgment of the Court
below which drew in question and denied the validity of a statute of the
United States is incontrovertible, for it is apparent upon the face of
the record. That this judgment is final upon the rights of the parties
is equally true, for if well founded, the former judgment of that court
was of conclusive authority, and the former judgment of this Court
utterly void. The decision was therefore equivalent to a perpetual stay
of proceedings upon [p*354] the mandate, and a perpetual denial of all
the rights acquired under it. The case, then, falls directly within the
terms of the Act. It is a final judgment in a suit in a State court
denying the validity of a statute of the United States, and unless a
distinction can be made between proceedings under a mandate and
proceedings in an original suit, a writ of error is the proper remedy to
revise that judgment. In our opinion, no legal distinction exists
between the cases.
In causes remanded to the Circuit Courts, if the mandate be not
correctly executed, a writ of error or appeal has always been supposed
to be a proper remedy, and has been recognized as such in the former
decisions of this Court. The statute gives the same effect to writs of
error from the judgments of State courts as of the Circuit Courts, and
in its terms provides for proceedings where the same cause may be a
second time brought up on writ of error before the Supreme Court. There
is no limitation or description of the cases to which the second writ of
error may be applied, and it ought therefore to be coextensive with the
cases which fall within the mischiefs of the statute. It will hardly be
denied that this cause stands in that predicament; and if so, then the
appellate jurisdiction of this Court has rightfully attached.
But it is contended, that the former judgment of this Court was rendered
upon a case not within the purview of this section of the Judicial Act,
and that, as it was pronounced by an incompetent jurisdiction, it was
utterly void, and cannot be a sufficient foundation [p*355] to sustain
any subsequent proceedings. To this argument several answers may be
given. In the first place, it is not admitted that, upon this writ of
error, the former record is before us. The error now assigned is not in
the former proceedings, but in the judgment rendered upon the mandate
issued after the former judgment. The question now litigated is not upon
the construction of a treaty, but upon the constitutionality of a
statute of the United States, which is clearly within our jurisdiction.
In the next place, in ordinary cases a second writ of error has never
been supposed to draw in question the propriety of the first judgment,
and it is difficult to perceive how such a proceeding could be sustained
upon principle. A final judgment of this Court is supposed to be
conclusive upon the rights which it decides, and no statute has provided
any process by which this Court can revise its own judgments. In several
cases which have been formerly adjudged in this Court, the same point
was argued by counsel, and expressly overruled. It was solemnly held
that a final judgment of this Court was conclusive upon the parties, and
could not be reexamined.
In this case, however, from motives of a public nature, we are entirely
willing to wave all objections and to go back and reexamine the question
of jurisdiction as it stood upon the record formerly in judgment. We
have great confidence that our jurisdiction will, on a careful
examination, stand confirmed as well upon principle as authority. It
will be recollected that the action was an ejectment for a parcel of
land in the Northern Neck, formerly belonging to [p*356] Lord Fairfax.
The original plaintiff claimed the land under a patent granted to him by
the State of Virginia in 1789, under a title supposed to be vested in
that State by escheat or forfeiture. The original defendant claimed the
land as devisee under the will of Lord Fairfax. The parties agreed to a
special statement of facts in the nature of a special verdict, upon
which the District Court of Winchester, in 1793, gave a general judgment
for the defendant, which judgment was afterwards reversed in 1810 by the
Court of Appeals, and a general judgment was rendered for the plaintiff;
and from this last judgment a writ of error was brought to the Supreme
Court. The statement of facts contained a regular deduction of the title
of Lord Fairfax until his death, in 1781, and also the title of his
devisee. It also contained a regular deduction of the title of the
plaintiff, under the State of Virginia, and further referred to the
treaty of peace of 1783, and to the acts of Virginia respecting the
lands of Lord Fairfax, and the supposed escheat or forfeiture thereof,
as component parts of the case. No facts disconnected with the titles
thus set up by the parties were alleged on either side. It is apparent
from this summary explanation that the title thus set up by the
plaintiff might be open to other objections; but the title of the
defendant was perfect and complete if it was protected by the treaty of
1783. If therefore this Court had authority to examine into the whole
record, and to decide upon the legal validity of the title of the
defendant, as well as its application to the treaty of peace, it would
be a case within the express purview [p*357] of the 25th section of the
Act, for there was nothing in the record upon which the Court below
could have decided but upon the title as connected with the treaty; and
if the title was otherwise good, its sufficiency must have depended
altogether upon its protection under the treaty. Under such
circumstances it was strictly a suit where was drawn in question the
construction of a treaty, and the decision was against the title
specially set up or claimed by the defendant. It would fall, then,
within the very terms of the Act.
The objection urged at the bar is that this Court cannot inquire into
the title, but simply into the correctness of the construction put upon
the treaty by the Court of Appeals, and that their judgment is not
reexaminable here unless it appear on the face of the record that some
construction was put upon the treaty. If therefore that court might have
decided the case upon the invalidity of the title (and, non constat,
that they did not) independent of the treaty, there is an end of the
appellate jurisdiction of this Court. In support of this objection, much
stress is laid upon the last clause of the section, which declares that
no other cause shall be regarded as a ground of reversal than such as
appears on the face of the record and immediately respects the
construction of the treaty, &c., in dispute.
If this be the true construction of the section, it will be wholly
inadequate for the purposes which it professes to have in view, and may
be evaded at pleasure. But we see no reason for adopting this narrow
construction; and there are the strongest [p*358] reasons against it
founded upon the words as well as the intent of the legislature. What is
the case for which the body of the section provides a remedy by writ of
error? The answer must be in the words of the section, a suit where is
drawn in question the construction of a treaty, and the decision is
against the title set up by the party. It is therefore the decision
against the title set up with reference to the treaty, and not the mere
abstract construction of the treaty itself, upon which the statute
intends to found the appellate jurisdiction. How, indeed, can it be
possible to decide whether a title be within the protection of a treaty
until it is ascertained what that title is, and whether it have a legal
validity? From the very necessity of the case, there must be a
preliminary inquiry into the existence and structure of the title before
the Court can construe the treaty in reference to that title. If the
Court below should decide, that the title was bad, and therefore not
protected by the treaty, must not this Court have a power to decide the
title to be good, and therefore protected by the treaty? Is not the
treaty, in both instances, equally construed, and the title of the
party, in reference to the treaty, equally ascertained and decided? Nor
does the clause relied on in the objection impugn this construction. It
requires that the error upon which the Appellate Court is to decide
shall appear on the face of the record, and immediately respect the
questions before mentioned in the section. One of the questions is as to
the construction of a treaty upon a title specially set up by a party,
and every error that immediately respects [p*359] that question must, of
course, be within the cognizance, of the Court. The title set up in this
case is apparent upon the face of the record, and immediately respects
the decision of that question; any error therefore in respect to that
title must be reexaminable, or the case could never be presented to the
Court.
The restraining clause was manifestly intended for a very different
purpose. It was foreseen that the parties might claim under various
titles, and might assert various defences altogether independent of each
other. The Court might admit or reject evidence applicable to one
particular title, and not to all, and, in such cases, it was the
intention of Congress to limit what would otherwise have unquestionably
attached to the Court, the right of revising all the points involved in
the cause. It therefore restrains this right to such errors as respect
the questions specified in the section; and, in this view, it has an
appropriate sense, consistent with the preceding clauses. We are
therefore satisfied that, upon principle, the case was rightfully before
us, and if the point were perfectly new, we should not hesitate to
assert the jurisdiction.
But the point has been already decided by this Court upon solemn
argument. In Smith v. The State of Maryland, 6 Cranch 286,
precisely the same objection was taken by counsel, and overruled by the
unanimous opinion of the Court. That case was, in some respects,
stronger than the present; for the court below decided expressly that
the party had no title, and therefore the treaty could not operate
[p*360] upon it. This Court entered into an examination of that
question, and, being of the same opinion, affirmed the judgment. There
cannot, then, be an authority which could more completely govern the
present question.
It has been asserted at the bar that, in point of fact, the Court of
Appeals did not decide either upon the treaty or the title apparent upon
the record, but upon a compromise made under an act of the legislature
of Virginia. If it be true (as we are informed) that this was a private
act, to take effect only upon a certain condition, viz., the
execution of a deed of release of certain lands, which was matter in
pais, it is somewhat difficult to understand how the Court could
take judicial cognizance of the act or of the performance of the
condition, unless spread upon the record. At all events, we are bound to
consider that the Court did decide upon the facts actually before them.
The treaty of peace was not necessary to have been stated, for it was
the supreme law of the land, of which all Courts must take notice. And
at the time of the decision in the Court of Appeals and in this Court,
another treaty had intervened, which attached itself to the title in
controversy and, of course, must have been the supreme law to govern the
decision if it should be found applicable to the case. It was in this
view that this Court did not deem it necessary to rest its former
decision upon the treaty of peace, believing that the title of the
defendant was, at all events, perfect under the treaty of 1794. [p*361]
The remaining questions respect more the practice than the principles of
this Court. The forms of process and the modes of proceeding in the
exercise of jurisdiction are, with few exceptions, left by the
Legislature to be regulated and changed as this Court may, in its
discretion, deem expedient. By a rule of this Court, the return of a
copy of a record of the proper court, under the seal of that court,
annexed to the writ of error, is declared to be "a sufficient
compliance with the mandate of the writ." The record in this case
is duly certified by the clerk of the Court of Appeals and annexed to
the writ of error. The objection therefore which has been urged to the
sufficiency of the return cannot prevail.
Another objection is that it does not appear that the judge who granted
the writ of error did, upon issuing the citation, take the bond required
by the 22d section of the Judiciary Act.
We consider that provision as merely directory to the judge; and that an
omission does not avoid the writ of error. If any party be prejudiced by
the omission, this Court can grant him summary relief by imposing such
terms on the other party as, under all the circumstances, may be legal
and proper. But there is nothing in the record by which we can
judicially know whether a bond has been taken or not, for the statute
does not require the bond to be returned to this Court, and it might
with equal propriety be lodged in the Court below, who would ordinarily
execute the judgment to be rendered on the writ. And the presumption of
law is, until the contrary [p*362] appears, that every judge who signs a
citation has obeyed the injunctions of the Act.
We have thus gone over all the principal
questions in the cause, and we deliver our judgment with entire
confidence that it is consistent with the Constitution and laws of the
land.
We have not thought it incumbent on us to give any opinion upon the
question, whether this Court have authority to issue a writ of mandamus
to the Court of Appeals to enforce the former judgments, as we do not
think it necessarily involved in the decision of this cause.
It is the opinion of the whole Court that the
judgment of the Court of Appeals of Virginia, rendered on the mandate in
this cause, be reversed, and the judgment of the District Court, held at
Winchester, be, and the same is hereby, affirmed. |
|
|
It will be
observed in this case that the Court disavows all intention to decide on
the right to issue compulsory process to the State courts, thus leaving
us, in my opinion, where the Constitution and laws place us -- supreme
over persons and cases as far as our judicial powers extend, but not
asserting any compulsory control over the State tribunals.
In this view I acquiesce in their opinion, but not altogether in the
reasoning or opinion of my brother who delivered it. Few minds are
accustomed to the same habit of thinking, and our conclusions are most
satisfactory to ourselves when arrived at in our own way. [p*363]
I have another reason for expressing my opinion on this occasion.
I view this question as one of the most momentous
importance; as one which may affect, in its consequences, the permanence
of the American Union. It presents an instance of collision between the
judicial powers of the Union, and one of the greatest States in the
Union, on a point the most delicate and difficult to be adjusted. On the
one hand, the General Government must cease to exist whenever it loses
the power of protecting itself in the exercise of its constitutional
powers. Force, which acts upon the physical powers of man, or
judicial process, which addresses itself to his moral principles or his
fears, are the only means to which governments can resort in the
exercise of their authority. The former is happily unknown to the genius
of our Constitution except as far as it shall be sanctioned by the
latter, but let the latter be obstructed in its progress by an
opposition which it cannot overcome or put by, and the resort must be to
the former, or government is no more.
On the other hand, so firmly am I persuaded that
the American people can no longer enjoy the blessings of a free
government whenever the State sovereignties shall be prostrated at the
feet of the General Government, nor the proud consciousness of equality
and security any longer than the independence of judicial power shall be
maintained consecrated and intangible, that I could borrow the language
of a celebrated orator and exclaim, "I rejoice that Virginia has
resisted."
Yet here I must claim the privilege of expressing
[p*364] my regret, that the opposition of the high and truly respected
tribunal of that State had not been marked with a little more
moderation. The only point necessary to be decided in the case then
before them was "whether they were bound to obey the mandate
emanating from this Court?" But, in the judgment entered on their
minutes, they have affirmed that the case was, in this Court, coram
non judice, or, in other words, that this Court had not jurisdiction
over it.
This is assuming a truly alarming latitude of
judicial power. Where is it to end? It is an acknowledged principle of,
I believe, every Court in the world that not only the decisions, but
everything done under the judicial process of courts not having
jurisdiction are, ipso facto, void. Are, then, the judgments of
this Court to be reviewed in every court of the Union? and is every
recovery of money, every change of property, that has taken place under
our process to be considered as null, void, and tortious?
We pretend not to more infallibility than other
courts composed of the same frail materials which compose this. It would
be the height of affectation to close our minds upon the recollection
that we have been extracted from the same seminaries in which originated
the learned men who preside over the State tribunals. But there is one
claim which we can with confidence assert in our own name upon those
tribunals -- the profound, uniform, and unaffected respect which this
Court has always exhibited for State decisions give us strong
pretensions to judicial comity. And another claim I may assert, in the
name of the American people; in this Court, every State in [p*365] the
Union is represented; we are constituted by the voice of the Union, and
when decisions take place which nothing but a spirit to give ground and
harmonize can reconcile, ours is the superior claim upon the comity of
the State tribunals. It is the nature of the human mind to press a
favourite hypothesis too far, but magnanimity will always be ready to
sacrifice the pride of opinion to public welfare.
In the case before us, the collision has been, on our part, wholly
unsolicited. The exercise of this appellate jurisdiction over the State
decisions has long been acquiesced in, and when the writ of error in
this case was allowed by the President of the Court of Appeals of
Virginia, we were sanctioned in supposing that we were to meet with the
same acquiescence there. Had that Court refused to grant the writ in the
first instance, or had the question of jurisdiction, or on the mode of
exercising jurisdiction, been made here originally, we should have been
put on our guard, and might have so modelled the process of the Court as
to strip it of the offensive form of a mandate. In this case it might
have been brought down to what probably the 25th section of the
Judiciary Act meant it should be, to-wit, an alternative judgment either
that the State court may finally proceed at its option to carry into
effect the judgment of this Court or, if it declined doing so, that then
this Court would proceed itself to execute it. The language, sense, and
operation of the 25th section on this subject merit particular
attention. In the preceding section, which has relation to causes
brought up by writ of error from the Circuit Courts [p*366] of the
United States, this Court is instructed not to issue executions, but to
send a special mandate to the Circuit Court to award execution
thereupon. In case of the Circuit Court's refusal to obey such mandate,
there could be no doubt as to the ulterior measures; compulsory process
might, unquestionably, be resorted to. Nor, indeed, was there any reason
to suppose that they ever would refuse, and therefore there is no
provision made for authorizing this Court to execute its own judgment in
cases of that description. But not so in cases brought up from the State
courts; the framers of that law plainly foresaw that the State courts
might refuse, and not being willing to leave ground for the implication
that compulsory process must be resorted to, because no specific
provision was made, they have provided the means, by authorizing this
Court, in case of reversal of the State decision, to execute its own
judgment. In case of reversal, only was this necessary, for, in case of
affirmance, this collision could not arise. It is true that the words of
this section are that this Court may, in their discretion, proceed to
execute its own judgment. But these words were very properly put in,
that it might not be made imperative upon this Court to proceed
indiscriminately in this way, as it could only be necessary in case of
the refusal of the State courts, and this idea is fully confirmed by the
words of the 13th section, which restrict this Court in issuing the writ
of mandamus, so as to confine it expressly to those Courts which are
constituted by the United States. [p*367]
In this point of view, the Legislature is completely vindicated from all
intention to violate the independence of the State judiciaries. Nor can
this Court, with any more correctness, have imputed to it similar
intentions. The form of the mandate issued in this case is that known to
appellate tribunals, and used in the ordinary cases of writs of error
from the courts of the United States. It will, perhaps, not be too much,
in such cases, to expect of those who are conversant in the forms,
fictions, and technicality of the law not to give the process of courts
too literal a construction. They should be considered with a view to the
ends they are intended to answer and the law and practice in which they
originate. In this view, the mandate was no more than a mode of
submitting to that court the option which the 25th section holds out to
them.
Had the decision of the Court of Virginia been
confined to the point of their legal obligation to carry the judgment of
this Court into effect, I should have thought it unnecessary to make any
further observations in this cause. But we are called upon to vindicate
our general revising power, and its due exercise in this particular
case.
Here, that I may not be charged with arguing upon a hypothetical case,
it is necessary to ascertain what the real question is which this Court
is now called to decide on.
In doing this, it is necessary to do what, although, in the abstract, of
very questionable propriety, appears to be generally acquiesced in,
to-wit, to review the case as it originally came up to this Court
[p*368] on the former writ of error. The cause, then, came up upon a
case stated between the parties, and under the practice of that State,
having the effect of a special verdict. The case stated brings into view
the treaty of peace with Great Britain, and then proceeds to present the
various laws of Virginia and the facts upon which the parties found
their respective titles. It then presents no particular question, but
refers generally to the law arising out of the case. The original
decision was obtained prior to the Treaty of 1794, but before the case
was adjudicated in this Court, the Treaty of 1794 had been concluded.
The difficulties of the case arise under the construction of the 25th
section above alluded to, which, as far as it relates to this case, is
in these words:
A final judgment or decree in any suit, in the highest Court of law or
equity of a State in which a decision in the suit could be had, . . .
where is drawn in question the construction of any clause of the
Constitution or of a treaty, . . . and the decision is against the title
set up or claimed by either party under such clause, may be reexamined
and reversed, or affirmed. . . . But no other error shall be assigned or
regarded as a ground of reversal in any such case as aforesaid than such
as appears on the face of the record and immediately respects the
before-mentioned questions of validity or construction of the said
treaties,
&c.;
The first point decided under this state of the case was that, the
judgment being a part of the record, if that judgment was not such as,
upon that case, it ought to have been, it was an error apparent on the
[p*369] face of the record. But it was contended that the case there
stated presented a number of points upon which the decision below may
have been founded, and that it did not therefore necessarily appear to
have been an error immediately respecting a question on the construction
of a treaty. But the Court held that, as the reference was general to
the law arising out of the case, if one question arose which called for
the construction of a treaty, and the decision negatived the right set
up under it, this Court will reverse that decision, and that it is the
duty of the party who would avoid the inconvenience of this principle so
to mould the case as to obviate the ambiguity. And under this point
arises the question whether this Court can inquire into the title of the
party, or whether they are so restricted in their judicial powers as to
be confined to decide on the operation of a treaty upon a title
previously ascertained to exist.
If there is any one point in the case on which an opinion may be given
with confidence, it is this, whether we consider the letter of the
statute, or the spirit, intent, or meaning, of the Constitution and of
the legislature, as expressed in the 27th section, it is equally clear
that the title is the primary object to which the attention of the Court
is called in every such case. The words are, "and the decision be
against the title," so set up, not against the construction of the
treaty contended for by the party setting up the title. And how could it
be otherwise? The title may exist notwithstanding the decision of the
State courts to the contrary, and, in that case, the [p*370] party is
entitled to the benefits intended to be secured by the treaty. The
decision to his prejudice may have been the result of those very errors,
partialities, or defects in State jurisprudence against which the
Constitution intended to protect the individual. And if the contrary
doctrine be assumed, what is the consequence? This Court may then be
called upon to decide on a mere hypothetical case -- to give a
construction to a treaty without first deciding whether there was any
interest on which that treaty, whatever be its proper construction,
would operate. This difficulty was felt and weighed in the case of Smith
and the State of Maryland, and that decision was founded upon the idea
that this Court was not thus restricted.
But another difficulty presented itself: the Treaty of 1794 had become
the supreme law of the land since the judgment rendered in the Court
below. The defendant, who was at that time an alien, had now become
confirmed in his rights under that treaty. This would have been no
objection to the correctness of the original judgment. Were we, then, at
liberty to notice that treaty in rendering the judgment of this Court?
Having dissented from the opinion of this Court in the original case on
the question of title, this difficulty did not present itself in my way
in the view I then took of the case. But the majority of this Court
determined that, as a public law, the treaty was a part of the law of
every case depending in this Court; that, as such, it was not necessary
that it should be spread upon the record, and that it was obligatory
[p*371] upon this Court, in rendering judgment upon this writ of error,
notwithstanding the original judgment may have been otherwise
unimpeachable. And to this opinion I yielded my hearty consent, for it
cannot be maintained that this Court is bound to give a judgment
unlawful at the time of rendering it, in consideration that the same
judgment would have been lawful at any prior time. What judgment can now
be lawfully rendered between the parties is the question to which the
attention of the Court is called. And if the law which sanctioned the
original judgment expire pending an appeal, this Court has repeatedly
reversed the judgment below, although rendered whilst the law existed.
So, too, if the plaintiff in error die pending suit, and his land
descend on an alien, it cannot be contended that this Court will
maintain the suit in right of the judgment in favour of his ancestor,
notwithstanding his present disability.
It must here be recollected that this is an action of ejectment. If the
term formally declared upon expires pending the action, the Court will
permit the plaintiff to amend by extending the term -- why? Because,
although the right may have been in him at the commencement of the suit,
it has ceased before judgment, and, without this amendment, he could not
have judgment. But suppose the suit were really instituted to obtain
possession of a leasehold, and the lease expire before judgment, would
the Court permit the party to amend in opposition to the right of the
case? On the contrary, if the term formally declared on were more
extensive than the [p*372] lease in which the legal title was founded,
could they give judgment for more than costs? It must be recollected
that, under this judgment, a writ of restitution is the fruit of the
law. This, in its very nature, has relation to, and must be founded
upon, a present existing right at the time of judgment. And whatever be
the cause which takes this right away, the remedy must, in the reason
and nature of things, fall with it.
When all these incidental points are disposed of, we find the question
finally reduced to this -- does the judicial power of the United States
extend to the revision of decisions of State courts in cases arising
under treaties? But in order to generalize the question and present it
in the true form in which it presents itself in this case, we will
inquire whether the Constitution sanctions the exercise of a revising
power over the decisions of State tribunals in those cases to which the
judicial power of the United States extends?
And here it appears to me that the great difficulty is on the other
side. That the real doubt is whether the State tribunals can
constitutionally exercise jurisdiction in any of the cases to which the
judicial power of the United States extends.
Some cession of judicial power is contemplated by the third article of
the Constitution; that which is ceded can no longer be retained. In one
of the Circuit Courts of the United States, it has been decided (with
what correctness I will not say) that the cession of a power to pass an
uniform act of bankruptcy, although not acted on by the United States,
deprives [p*373] the States of the power of passing laws to that effect.
With regard to the admiralty and maritime jurisdiction, it would be
difficult to prove that the States could resume it if the United States
should abolish the Courts vested with that jurisdiction; yet it is
blended with the other cases of jurisdiction in the second section of
the third article, and ceded in the same words. But it is contended that
the second section of the third article contains no express cession of
jurisdiction; that it only vests a power in Congress to assume
jurisdiction to the extent therein expressed. And under this head arose
the discussion on the construction proper to be given to that article.
On this part of the case, I shall not pause long. The rules of
construction, where the nature of the instrument is ascertained, are
familiar to every one. To me, the Constitution appears, in every line of
it, to be a contract which, in legal language, may be denominated
tripartite. The parties are the people, the States, and the United
States. It is returning in a circle to contend that it professes to be
the exclusive act of the people, for what have the people done but to
form this compact? That the States are recognised as parties to it is
evident from various passages, and particularly that in which the United
States guaranty to each State a republican form of Government.
The security and happiness of the whole was the object, and, to prevent
dissention and collision, each surrendered those powers which might make
them dangerous to each other. Well aware of the sensitive [p*374]
irritability of sovereign States, where their wills or interests clash,
they placed themselves, with regard to each other, on the footing of
sovereigns upon the ocean, where power is mutually conceded to act upon
the individual, but the national vessel must remain unviolated. And to
remove all ground for jealousy and complaint, they relinquish the
privilege of being any longer the exclusive arbiters of their own
justice where the rights of others come in question or the great
interests of the whole may be affected by those feelings, partialities,
or prejudices, which they meant to put down forever.
Nor shall I enter into a minute discussion on the meaning of the
language of this section. I have seldom found much good result from
hypercritical severity in examining the distinct force of words.
Language is essentially defective in precision, more so than those are
aware of who are not in the habit of subjecting it to philological
analysis. In the case before us, for instance, a rigid construction
might be made which would annihilate the powers intended to be ceded.
The words are, "shall extend to;" now that which extends to
does not necessarily include in, so that the circle may enlarge until it
reaches the objects that limit it, and yet not take them in. But the
plain and obvious sense and meaning of the word "shall," in
this sentence, is in the future sense, and has nothing imperative in it.
The language of the framers of the Constitution is "We are about
forming a General Government -- when that Government is formed, its
powers shall extend," &c. I therefore see nothing imperative in
this clause, and certainly [p*375] it would have been very unnecessary
to use the word in that sense; for, as there was no controlling power
constituted, it would only, if used in an imperative sense, have imposed
a moral obligation to act. But the same result arises from using it in a
future sense, and the Constitution everywhere assumes as a postulate
that wherever power is given, it will be used, or at least used as far
as the interests of the American people require it, if not from the
natural proneness of man to the exercise of power, at least from a sense
of duty and the obligation of an oath.
Nor can I see any difference in the effect of the words used in this
section, as to the scope of the jurisdiction of the United States'
courts over the cases of the first and second description comprised in
that section. "Shall extend to controversies," appears to me
as comprehensive in effect as "shall extend to all cases." For
if the judicial power extend "to controversies between citizen and
alien," &c., to what controversies of that description does it
not extend? If no case can be pointed out which is excepted, it then
extends to all controversies.
But I will assume the construction as a sound one that the cession of
power to the General Government means no more than that they may assume
the exercise of it whenever they think it advisable. It is clear that
Congress have hitherto acted under that impression, and my own opinion
is in favour of its correctness. But does it not then follow that the
jurisdiction of the State court, within the range ceded to the General
Government, is permitted, and [p*376] may be withdrawn whenever Congress
think proper to do so? As it is a principle that everyone may renounce a
right introduced for his benefit, we will admit that, as Congress have
not assumed such jurisdiction, the State courts may constitutionally
exercise jurisdiction in such cases. Yet surely the general power to
withdraw the exercise of it includes in it the right to modify, limit,
and restrain that exercise.
This is my domain, put not your foot upon it; if you do, you are subject
to my laws; I have a right to exclude you altogether; I have, then, a
right to prescribe the terms of your admission to a participation. As
long as you conform to my laws, participate in peace, but I reserve to
myself the right of judging how far your acts are conformable to my
laws.
Analogy, then, to the ordinary exercise of sovereign authority would
sustain the exercise of this controlling or revising power.
But it is argued that a power to assume jurisdiction to the
constitutional extent does not necessarily carry with it a right to
exercise appellate power over the State tribunals.
This is a momentous questions, and one on which I shall reserve myself
uncommitted for each particular case as it shall occur. It is enough, at
present, to have shown that Congress has not asserted, and this Court
has not attempted, to exercise that kind of authority in personam over
the State courts which would place them in the relation of an inferior
responsible body without their own acquiescence. And I have too much
confidence in the State tribunals to believe that a case ever will occur
in which it will be necessary [p*377] for the General Government to
assume a controlling power over these tribunals. But is it difficult to
suppose a case which will call loudly for some remedy or restraint?
Suppose a foreign minister or an officer acting regularly under
authority from the United States, seized today, tried tomorrow, and
hurried the next day to execution. Such cases may occur, and have
occurred, in other countries. The angry vindictive passions of men have
too often made their way into judicial tribunals, and we cannot hope
forever to escape their baleful influence. In the case supposed, there
ought to be a power somewhere to restrain or punish, or the Union must
be dissolved. At present, the uncontrollable exercise of criminal
jurisdiction is most securely confided to the State tribunals. The
Courts of the United States are vested with no power to scrutinize into
the proceedings of the State courts in criminal cases; on the contrary,
the General Government has, in more than one instance, exhibited their
confidence by a wish to vest them with the execution of their own penal
law. And extreme, indeed, I flatter myself, must be the case in which
the General Government could ever be induced to assert this right. If
ever such a case should occur, it will be time enough to decide upon
their constitutional power to do so.
But we know that, by the 3d article of the Constitution, judicial power,
to a certain extent, is vested in the General Government, and that, by
the same instrument, power is given to pass all laws necessary to carry
into effect the provisions of the Constitution. At present, it is only
necessary to vindicate the [p*378] laws which they have passed affecting
civil cases pending in State tribunals.
In legislating on this subject, Congress, in the true spirit of the
Constitution, have proposed to secure to everyone the full benefit of
the Constitution without forcing any one necessarily into the courts of
the United States. With this view, in one class of cases, they have not
taken away absolutely from the State courts all the cases to which their
judicial power extends, but left it to the plaintiff to bring his action
there originally if he choose, or to the defendant to force the
plaintiff into the courts of the United States where they have
jurisdiction, and the former has instituted his suit in the State
courts. In this case, they have not made it legal for the defendant to
plead to the jurisdiction, the effect of which would be to put an end to
the plaintiff's suit and oblige him, probably at great risk or expense,
to institute a new action; but the Act has given him a right to obtain
an order for a removal, on a petition to the State court, upon which the
cause, with all its existing advantages, is transferred to the Circuit
Court of the United States. This, I presume, can be subject to no
objection, as the Legislature has an unquestionable right to make the
ground of removal a ground of plea to the jurisdiction, and the Court
must then do no more than it is now called upon to do, to-wit, give an
order or a judgment, or call it what we will, in favour of that
defendant. And so far from asserting the inferiority of the State
tribunal, this act is rather that of a superior, inasmuch as the Circuit
Court of the United States becomes bound, [p*379] by that order, to take
jurisdiction of the case. This method, so much more unlikely to affect
official delicacy than that which is resorted to in the other class of
cases, might perhaps have been more happily applied to all the cases
which the Legislature thought it advisable to remove from the State
courts. But the other class of cases, in which the present is included,
was proposed to be provided for in a different manner. And here, again,
the Legislature of the Union evince their confidence in the State
tribunals, for they do not attempt to give original cognizance to their
own Circuit Courts of such cases, or to remove them by petition and
order; but still believing that their decisions will be generally
satisfactory, a writ of error is not given immediately as a question
within the jurisdiction of the United States shall occur, but only in
case the decision shall finally, in the Court of the last resort, be
against the title set up under the Constitution, treaty, &c.;
In this act I can see nothing which amounts to an assertion of the
inferiority or dependence of the State tribunals. The presiding judge of
the State court is himself authorized to issue the writ of error, if he
will, and thus give jurisdiction to the Supreme Court; and if he thinks
proper to decline it, no compulsory process is provided by law to oblige
him. The party who imagines himself aggrieved is then at liberty to
apply to a judge of the United States, who issues the writ of error,
which (whatever the form) is, in substance, no more than a mode of
compelling the opposite party to appear before this Court and maintain
the legality of his judgment obtained before the [p*380] state tribunal.
An exemplification of a record is the common property of every one who
chooses to apply and pay for it, and thus the case and the parties are
brought before us; and so far is the court itself from being brought
under the revising power of this Court that nothing but the case, as
presented by the record and pleadings of the parties, is considered, and
the opinions of the court are never resorted to unless for the purpose
of assisting this Court in forming their own opinions.
The absolute necessity that there was for Congress to exercise something
of a revising power over cases and parties in the State courts will
appear from this consideration.
Suppose the whole extent of the judicial power of the United States
vested in their own courts, yet such a provision would not answer all
the ends of the Constitution, for two reasons:
1st. Although the plaintiff may, in such case, have the full benefit of
the Constitution extended to him, yet the defendant would not, as the
plaintiff might force him into the court of the State at his election.
2dly. Supposing it possible so to legislate as to give the courts of the
United States original jurisdiction in all cases arising under the
Constitution, laws, &c., in the words of the 2d section of the 3d
article (a point on which I have some doubt, and which in time might
perhaps, under some quo minus fiction or a willing construction, greatly
accumulate the jurisdiction of those Courts), yet a very large class of
cases would remain unprovided for. Incidental questions would often
arise, and as a Court of competent [p*381] jurisdiction in the principal
case must decide all such questions, whatever laws they arise under,
endless might be the diversity of decisions throughout the Union upon
the Constitution, treaties, and laws of the United States, a subject on
which the tranquillity of the Union, internally and externally, may
materially depend.
I should feel the more hesitation in adopting the opinions which I
express in this case were I not firmly convinced that they are
practical, and may be acted upon without compromitting the harmony of
the Union or bringing humility upon the State tribunals. God forbid that
the judicial power in these States should ever for a moment, even in its
humblest departments, feel a doubt of its own independence. Whilst
adjudicating on a subject which the laws of the country assign finally
to the revising power of another tribunal, it can feel no such doubt. An
anxiety to do justice is ever relieved by the knowledge that what we do
is not final between the parties. And no sense of dependence can be felt
from the knowledge that the parties, not the Court, may be summoned
before another tribunal. With this view, by means of laws, avoiding
judgments obtained in the State courts in cases over which Congress has
constitutionally assumed jurisdiction, and inflicting penalties on
parties who shall contumaciously persist in infringing the
constitutional rights of others -- under a liberal extension of the writ
of injunction and the habeas corpus ad subjiciendum, I flatter myself
that the full extent of the constitutional revising power may be secured
to the United States, and the [p*382] benefits of it to the individual,
without ever resorting to compulsory or restrictive process upon the
State tribunals; a right which, I repeat again, Congress has not
asserted, nor has this Court asserted, nor does there appear any
necessity for asserting.
The remaining points in the case being mere questions of practice, I
shall make no remarks upon them. Judgment affirmed. |
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