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plation of the Constitution, the great argument of the Court, and on which, it seems to us, it principally relies, is this—

“ 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 the appellate power) shall extend to all cases, &c. and in all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction. It is the case then, and not the Court, that gives jurisdiction. If the judicial power extend 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 on those who assert such a qualification, to shew its existence by necessary implication.”—1 Wheat. 338.

We think we have shewn its existence by unavoidable implication, in the circumstance, that an appeal can only lie from an inferior Court ; that no inferior courts are kuown to the Constitution, but such as are to form a portion of its own judicial power, and to be “ardained and established" as such, by Congress; that State courts are not once named, and that the whole article relates to no other subject than the judicial power of the United States. It is true, that the appellate power refers to the “cases before mentioned," without specifying the court, where they are pending. But the reason of this specification of cases, and not courts, is most obvious. It was not, because in giving the appellate jurisdiction, cuses were in contemplation of the Constitution, and not tribunals, but because the whole judicial power of the United States being one of limited character as to cases, and divided into original and appellate jurisdictions, it became absolutely indispensable to make a division of these cases between the two jurisdictions, which division could not be made without referring to the cases.

There was no necessity to speak of the tribunals. These were to be constituted by Congress as inferior to the Court, which was to have the appellate power; but there was an unavoidable necessity to speak of the cases, in order that the boundary between the original and appellate jurisdiction of the Supreme Court, might be distinctly marked. The one was to embrace two of the cases, and the other, all the remaining cases. That the term “cases," was introduced for this purpose and no other, not only results from the reason of the thing, but may be illustrated by supposing the converse of the proposition contended for by the Court, to be the true state of the case. Let us now admit that the real intention was an appeal from the Federal tribunals and not the State courts. Would there not have been the same necessity for an expression, that the judicial power should ex

tend to all cases, &c. and that the cases in which the Supreme Court should have original, should be distinguished from those in which it should have appellate jurisdiction ? Could such an intention have been accomplished without giving the appellate jurisdiction in all the other cases before mentioned?" It would be difficult to give any but an affirmative answer. Then, surely, if a specification of cases for the appellate jurisdiction was as necessary in the one case as the other, (that is, whether the Federal courts singly, or the State courts as well as the inferior Federal tribunals, were to be appealed from,) the inference cannot possibly be maintained, that it is the case which gives the appellate jurisdiction; for we have just shewn, that if the (Federal) tribunal and the cuse were both contemplated, the clause or section must be expressed in the same words; and that however it might be expressed, still the insertion of the term "cases," wherever it is used in the section, was unavoidable. To us it does seem most singular, that when there is a division of the whole judicial power, into supreme and subordinate, and then again into original and appellate, and a distribution is made of the cases, previously given, as the common property of the whole, the Court should not perceive, in this necessity or act of distribution, such a manifest and indissoluble relation between the supreme aud inferior tribunals, as to constitute, of itself, a sufficient "qualification as to the tribunal" from which the appeal was intended to lie, there being no other inferior tribunals mentioned or alluded to, excepting those which were to be ordained by Congress. That the inferior iribụnals were contemplated, and no others, would also appear from the consideration, that this whole second clause of the second section, giving the appellate jurisdiction, did not increase the jurisdiction of the Supreme Court, but was a direct limitation upon its powers; for bad the clause been expunged, Congress, in organizing its judiciary, would have been at liberty to confer on it original as well as appellate jurisdiction in all the specified cases. If, therefore, the original jurisdiction conferred on the court in the two specified cases, gave no new power, but actually abridged what Congress might previously have given to it under the preceding section by implication, then the giving of the appellate jurisdiction, in the other cases, could conter no new power. So too, had the clause been omitted, Congress could have increased the appellate power of the court over the inferior courts, by making it altogether a court of appeals. But who would contend in such a case, (the words “appellate jurisdiction" not being used) that Congress could refer such an appellate jurisdiction to any but the Federal courts. If we

understand the Court rightly, the claim of supremacy is founded on the clause giving the power of “appellate jurisdiction" to the Supreme Court, in certain cases, in express terms. Strike out this clause, and Congress could still confer on it appellate jurisdiction by inevitable implication in those same cases, (the Court being made a supreme tribunal by the first section) and yet the Court would scarcely contend, that, in “vesting the judicial power of the United States in a supreme and in inferior courts, to be ordained and established by Congress," State courts were intended to be the tribunals in reference to which it was to be supreme. Suppose again, we strike out the whole article relating to the judiciary, excepting the first clause, so that it might read thus-" The judicial power of the United States shall be vested in one Supreme Court and in such inferior Courts as Congress may, from time to time, ordain and estabJish. The judges shall hold their offices during good behaviour," &c. Under such a clause, the Federal courts might still be invested with the cognizance of the specified cases, with a few exceptions, but particularly with cognizance of all cases arising under the Constitution and laws of the United States. But as clear as would be the right of Congress, under such a power, to define, at its discretion, the jurisdiction of its different courts, and to have even a gradation of courts of appeal; yet who would say, that under such a clause, Congress could give an appellate jurisdiction over the State courts? And why not? If, according to the position of the Court, it is the extension of the judicial power to the cases that alone gives the appellate power contended for, it clearly can make no difference whether the power attaches to the cases in express terms or by strict implication. The appellate jurisdiction, impliedly given, ought to reach the State courts, as well as it does in the terms in which it is now expressed, for the simple reason, that the appellate power would sull be, according to the reasoning of the Court, a part of the judicial power, and the judicial power would still “ extend to the case.” But it is not, and cannot be imagined, that were the whole judicial article comprised in the first section just quoted, or even with the addition of that part of the second section, wbich extends the judicial power to the enumerated cases, (the clause respecting appellate jurisdiction being omitteri) the Court would contend for such a power, and this shews the consequences which will always follow, when clauses or words of limitation are construed to signify an extension of power. It was, no doubt, a desideratum that foreign ministers, residing at the seat of government, should have the highest tribunal in the land to resort to, and not to be driven

into the inferior tribunals. The same facility was provided for a sovereign State. The original jurisdiction being thus carved out of the mass of cases, it was natural to speak of the appellate jurisdiction "in all the other cases."

The Court says: "the appellate power is not limited by the terms of the third article to any particular Court." Weihink we have already shown by the foregoing view, that it is limited to the inferior federal tribunals by strong and inevitable implication. But we are certainly under no obligation to prove this. The mere extension of the judicial power of the United States, to particular cases, cannot be construed to embrace cases already decided in another, or a Statė sovereignty. If this extension was intended to embrace those cases, so as to bring them up from the Courts of the State sovereignty to be revised by those of the federal sovereignty, the onus probandi is with the Court. It is not for us to prove a negative, or to shew that State tribunals were not contemplated as the objects of control for the judicial power of the United States, but it is with the opposite party to prove that they were, and this upon the generally acknowledged principle, that as all the powers of the Federal Government are limited, nothing can be claimed which is not expressly given to any of its departments, or resulting to it by acknowledged implication. In the particular case before us, seeing that a perfect relation already subsists between the supreme and inferior tribunals, the Court is bound to show that the mention of these inferior tribunals is not a qualification, as to the tribunals where the cases were to depend. We repeat our firm conviction, that the Court and the case are both referred to, as the only subjects for the appellate jurisdiction; and that it is impossible to separate them from the circumstance, that the courts were createdtheir gradations established-their general jurisdiction, as to cases, specifiedand the particular jurisdictions of the Supreme Court prescribed, by one and the same fiat. It is to no purpose to contend, that the appellate jurisdiction extends to the cases, because the whole judicial power of which the appellate is part, positively embraces the cases. This is only moving in a circle, and we are brought to the very point from which we commenced. The question still recurs, what cases ? Certainly not the cases originating in any part of the globe, and already carried to judgment, (for foreign Courts can take cognizance of all civil cases arising under the laws of Congress as well as their own Courts.) Not, certainly, cases 10 which the original judicial power cannot extend, but cases arising in the Courts, which, under the Constitution, have the original jurisdiction of the subject matter. These can be no other

than the Courts of the United States. It is not enough that it be a Court which has original jurisdiction in the case, but it must, in its organization be a tribunal, constituted by Congress as inferior to the Supreme Court. Are the highest State Courts of appeals inferior in their organization to the Federal Courts? If so, when were they made inferior? Not certainly by the Constitution : it makes no inferior tribunal, but .confides the power to Congress, to ordain and establish those inferior Courts, and, as we have already remarked, State Courts cannot be contemplared as these inferior Courts, because the inferior Courts are, under the Constitution, to be held by federal judges.

The third article is rather in the light of a limitation than an extension of the judicial power of the United States. The word “extend," here used, is not a term of enlarged, but of restrictive signification. Comparatively speaking, or in reference to the previous existing state of the judicial power under the Confederation, the term may mean “enlargement,” because the new Constitution conferred judiciary powers, which the Confederation did not possess. But it is here obviously used in the opposite sense, aod for the reason, that the first section of the article established a general judiciary power, which, if the article had proceeded no further, might possibly have been construed to give to the Federal Courts concurrent jurisdiction with the State Courts, on all subjects over which Courts in general have jurisdiction, but which power, otherwise apparently illimitable, but not really so, became clearly expressed as soon as its jurisdiction was declared to extend to particular cases. Here the meaning of the word is manifestly restrictive. To extend to certain cases is to "reachto those cases, but not to go beyond them. These cases are those arising for the first time, and not cases litigated in other Courts of concurrent jurisdiction. A case before a State Court of competen: jurisdiction, is already coram judice, and by the comity due from one Court to another, no other Court can interfere. Amongst Courts concurrent in their jurisdiction, the Court which first comes into possession of the case, keeps it to the exclusion of all the rest. Federal appellate power cannot reach such a case unless, by some provision in the Constitution, it is a part of the compact, that the highest Court of Appeals in a State is made inferior to the Federal tribunals.

It is impossible that a State Court of Appeals can be subject to have its decisions reversed, without its being one of the inferior tribunals of the United States. Appellate jurisdiction is the power of a Superior Court exercised over an inferior. The mode of this exercise is by writ of error. This writ is, of itself,

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