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case, as expressed by the constitution, but to those parts of cases only which present the particular question involving the construction of the constitution or the law. We say, it never can be extended to the whole case, because, if the circumstance that other points are involved in it, shall disable congress from authorizing the courts of the Union to take jurisdiction of the original cause, it equally disables congress from authorizing those courts to take jurisdiction of the whole cause on an appeal; and thus, words which in their plain sense apply to a whole cause, will be restricted to a single question in that cause; and words obviously intended to secure to those who claim rights under the constitution, laws, or treaties of the United States, a trial in the federal courts, will be restricted to the insecure remedy of an appeal upon an insulated point, after it has received that shape which may be given to it by another tribunal into which he is forced against his will.

6 We think, then, that when a question, to which the judicial power of the Union is extended by the constitution, forms an ingredient of the original cause, it is in the power of congress to give the circuit courts jurisdiction of that cause, although other questions of fact or of law may be involved in it.” (122)

From these two decisions we collect, among other matters, that the appellate jurisdiction does not depend on the court where the decision was given, but on the subject to which it relates ; that it is not necessary that the subject should be purely and abstractedly of a single nature within the view of the constitution, but may be connected with other matter, and the entire subject so formed falls within the appellate jurisdiction; that

(122) 9 Wheaton, 733. Osborne v. Bank of the United States.

this jurisdiction is essential to the well-being of the nation, and that the Supreme Court have not the power to decline its exercise. A tribunal so high, fully submitting to its constitutional obligations, when motives may easily be conceived of a personal nature, to tempt it to relax or evade their performance, affords an example for the imitation of all. (123)

(123) In these quotations the author has retained, without approving of, the expression federal, frequently applied to the courts of the United States. The government not being strictly a federal government, its tribunals are not properly federal tribunals. He refers to his antecedent remarks, to show how little, if any of the pure federative quality, was intended to be retained in it, nor on the other hand, is it liable to the objection sometimes raised, that its warm advocates aim at rendering it a consolidated governinent destructive of state sovereignty. The minority, who at first opposed its adoption, were, no doubt, sincere in the alarm they professed in this respect : but time has proved that it is utterly groundless, and the state sovereignties are, in all respects not voluntarily ceded to the United States, as vigorous as ever.

CHAPTER XXVIII.

Of the Rules of Decision.

THE rules and principles by which the judicial power is to be administered, form the next subject of consideration, and here we have, in the constitution, the benefit of a text which in some respects is explicit, and in all others supplies a foundation on which it is apprehended we may securely rest.

The laws of the United States and treaties made under their authority, form the explicit principle of the judiciary power, and in respect to their high obligation no question can arise, but another part of the same sentence leads us into a wider field of inquiry. The constitution itself is the supreme law of the land, and all cases arising under it are declared to be within the judicial power. To every part of this well-digested work we are bound to give an efficient construction. No words are there used in vain : as a literary composition, the union of precision with brevity constitutes one of its chief ornaments and recommendations. When we find a distinction between cases arising under the constitution and under laws and treaties, we are not at liberty to suppose that the former description was introduced without a definite meaning. The other designations are not more plain than this. We understand what is meant by cases arising under laws and under treaties, but something more is evidently meant. We may

recollect that in another article of the constitution, laws made in pursuance thereof, and treaties made under the authority of the United States, are

declared to be the supreme law of the land. The subordination of all legislative acts to the constitution is thereby provided for, and it is inconsistent with the whole frame of its composition to consider any part of it as an use. less repetition of words. We are therefore bound to say, that cases may arise under the constitution which do not arise under the laws, and if this point is conceded or established, we are next to inquire what are those cases.

Of a civil nature nothing can properly be said to arise under the constitution, except contracts to which the United States are parties. Jurisdiction is given to them over controversies in which States and individuals of certain descriptions are concerned, but those cases would exist although the constitution did not exist. The courts of the United States are, in these respects, merely the organs of justice, and by the first act of congress relative to the judicial establishment (124) it is expressly declared that the laws of the several states, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in courts of the United States, in cases where they apply. The term, laws of the several states embracing as well their common as their statute laws, there is no difficulty on this subject. It is admitted that every state in the Union has its peculiar system and rules of decision in cases for which no positive statutes are provided, and of these general rules the United States have the benefit in all cases of contract which may occasion suits on their behalf, either in their own courts or in those of the several states. To their own courts a similar power could not be given

(124) Act of September 24, 1789.

He observes that the United States for many and most important purposes form a single nation.

66 In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one, and the government which is alone capable of controlling and managing their interest in all these respects, is the government of the Union, and in that character the people have no other. America has chosen to be in many respects and to many purposes a nation ; and for all these purposes, her government is competent and complete. The people have declared, that in the exercise of all powers given for these objects, it is supreme. It can, then, in affecting these objects, legitimately control all individuals or governments within the American territory. The constitution and laws of a state, so far as they are repugnant to the constitution and the constitutional laws of the United States, are absolutely void. These states are constituent parts of the United States. They are members of one great empire--for some purposes sovereign ; for some purposes subordinate.

“In a government so constituted, is it unreasonable that the judicial power should be competent to give efficacy to the constitutional laws of the legislature ? That department can decide on the validity of the constitution or law of a state if it be repugnant to the constitution or to a law of the United States. Is it unreasonable that it should also be empowered to decide on the judgment of a state tribunal enforcing such unconstitutional law ? Is it so very unreasonable as to furnish a justification for controlling the words of a constitution ?

" When a government is confessedly supreme, in respect to objects of vital interest to the nation, there is

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