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The marshal is obliged to give security to the United States in twenty thousand dollars, for the faithful performance of the duties of his office by himself and his deputies, and, together with his deputies, to take an oath of office. (b) By the common law, the death of the principal is a virtual repeal of the authority of the substitute or deputy; but to guard against any inconvenience which might arise from the operation of this principle, and to prevent the mischiefs of a vacancy in office, the act establishing the judicial courts has provided, that in case of the death of the marshal, his deputies shall continue in office, unless otherwise especially removed, and shall execute the same in the name of the deceased marshal, until another marshal shall be appointed and sworn. So, a marshal, when removed from office, or his term of office expires, may still execute all process in his hands, and he remains responsible for his prisoners until they are duly delivered over to his successor. (c) 2 And with respect to the custody of the prisoners, under the law of the United States, the marshal is directed to deliver his prisoners to the keeper of one of the jails of the state in which he is marshal, in cases where the legislature of the state, in conformity with the recommendation of Congress, have made it the duty of the jailers to receive them; but where they have not, the marshal, under the

multiplied beyond all former example, under President Jackson's administration, the propriety of the concession of the power itself, by the first Congress, has been strongly questioned. It is the power of Congress, at any time, says a high authority, to correct the extensive operation of this executive power, by placing the appointment of inferior officers (and which would include ninety-nine out of a hundred of the lucrative offices of the government) in other hands. 3 Story's Comm. 394-397.

(b) Act of Congress of September 24th, 1789, sec. 27. By the act of Congress of April 10th, 1806, c. 21, the marshal's bonds are to be filed and recorded in the office of the clerk of the District Court or Circuit Court sitting within the district; and suits for the breach of the condition of any such bond may be instituted in the name and for the sole use of the person injured by a breach of the condition of the bond, and judgments on the bond are to remain as a security for the benefit of any person injured by the breach thereof.

(c) Ibid. sec. 28.

1 The deputy marshal is an officer of the District Court and amenable to its jurisdiction for malfeasance in office, and the jurisdiction may be exercised by summary order or attachment for contempt. The Bark Laurens and $ 20,000 in specie. 1 Abbott Adm. 508.

2 Stewart v. Hamilton, 4 McLean, 534; United States v. Bank of Arkansas, Hempst. C. C. 460; Doolittle's Lessee v. Bryan, 14 How. U. S. 563.

direction of the district judge, is to provide his own place of security. (d)

(d) Resolutions of Congress, September 23d, 1789, and March 3d, 1791. See, also, the act of Congress of January 6th, 1800, and 1 Paine C. C. 368. The marshal is bound to take from the prisoner under United States process, a bond for the limits, a in the case for prisoners under state process.

LECTURE XV.

OF THE ORIGINAL AND APPELLATE JURISDICTION OF THE SUPREME

COURT.

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

stitutional

The constitution of the United States is an instrument containing the grant of specific powers, and the government of Test of conthe Union cannot claim any powers but what are con- power. tained in the grant, and given either expressly, or by necessary implication. The powers vested in the state governments by their respective constitutions, or remaining with the people of the several states prior to the establishment of the constitution of the United States, continue unaltered and unimpaired, except so far as they are granted to the United States. We are to ascertain the true construction of the constitution, and the precise extent of the residuary authorities of the several states, by the declared sense and practice of the governments respectively, when there is no collision; and in all other cases where the question is of a judicial nature, we are to ascertain it by the decisions of the Supreme Court of the United States; and those decisions ought to be studied and universally understood, in respect to all the leading questions of constitutional law. (a) The people of the United States have declared the constitution to be the supreme law of the land, and it is entitled to universal and implicit obedience. Every act of Congress, and every act of the legislatures of the states, and every part of the constitution of any state, which are repugnant to the constitution of the United States, are *314 necessarily void. This is a clear and settled principle of constitutional jurisprudence. The judicial power of the Union is declared to extend to all cases in law and equity arising under the

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constitution; and to the judicial power it belongs, whenever a case is judicially before it, to determine what is the law of the land. The determination of the Supreme Court of the United States, in every such case, must be final and conclusive, because the constitution gives to that tribunal the power to decide, and gives no appeal from the decision.

With respect to the judicial power, it may be generally observed, as the Supreme Court declared, in the case of Turner v. The Bank of North America, (a) that the disposal of the judicial power, except in a few specified cases, belongs to Congress; and the courts cannot exercise jurisdiction in every case to which the judicial power extends, without the intervention of Congress, who are not bound to enlarge the jurisdiction of the federal courts to every subject which the constitution might warrant. So, again, it has been decided, (b) that Congress has not delegated the exercise of judicial power to the circuit courts, but in certain specific cases. Both the constitution and an act of Congress must concur in conferring power upon the circuit courts. A considerable portion of the judicial power, placed at the disposal of Congress by the constitution, has been intentionally permitted to lie dormant, by not being called into action by law. (c) The 11th section of the Judiciary Act of 1789, giving jurisdiction to the circuit courts, has not covered the whole ground of the constitution, and those courts cannot, for instance, issue a mandamus, but in those cases in which it may be necessary to the exercise of their jurisdiction. (d)

the Supreme

Original ju- The original jurisdiction of the Supreme Court is very risdiction of limited, and it has been decided that Congress has no Court. power to extend it. (e) It is confined by the constitution to those cases which affect ambassadors, other public ministers and consuls, and to those in which a state is a party; (f) *315 and it has been made a question, whether this original jurisdiction of the Supreme Court was intended by the constitution to be exclusive. The Judiciary Act of 1789 seems

*

(a) 4 Dallas, 8.

(b) M'Intire v. Wood, 7 Cranch, 504; Livingston v. Van Ingen, 1 Paine C. C. 45. United States v. Hudson & Goodwin, 7 Cranch, 32; United States v. Bevans, 3 Wheaton, 336.

(c) Conkling's Treatise, 2d edit. 68.

(d) Smith v. Jackson, 1 Paine C. C. 453.

(e) Marbury v. Madison, 1 Cranch, 137. (f) Art. 3, sec. 2.

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

Admitting that this original jurisdiction of the Supreme Court may be shared by other courts in the discretion of Congress, it has been decided, as we shall presently see, that this original jurisdiction cannot be enlarged, and that the Supreme Court cannot be vested, even by Congress, with any original jurisdiction in other cases than those described in the constitution. It is the appellate

jurisdiction of the Supreme Court that clothes it with most of its dignity and efficacy, and renders it a constant object of attention and solicitude on the part of the governments * 316 and the people of the several states. (a)

(a) Act of Congress, September 24th, 1789, sec. 13. (c) 1 Cranch, 137.

(e) 11 Wheaton, 467.

(b) 2 Dallas, 297.

(d) 5 Serg. & Rawle, 545.

(f) In the official opinion of the Attorney-General of the United States, in 1797, it was held, that the Supreme Court of the United States had no criminal jurisdiction, until given by statute, and that it was capable of having it conferred by law in the case of ambassadors, &c., as in the case of libels, &c. Opinions of the Attorneys-General, (July 27th, 1797,) vol. i. p. 42.

(a) The Imperial Chamber and the Aulic Council in the Germanic Constitution,

1 Since the act of 1789, in all cases where original jurisdiction is given to the Supreme Court by the Constitution, the authority is exercised without further act of Congress to regulate process or confer jurisdiction. Commonwealth of Kentucky v. Dennison, Governor, &c. 24 How. U. S. 66. And see Chisholm's Executors, Georgia, 2 Dallas, 419.

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