LECTURE VI.

OF THE DISTRIBUTION OF THE JUDICIAL POWER AMONG THE FEDERAL COURTS.

WE now proceed to ascertain in what manner the Federal jurisdiction has been distributed among the several courts, either by the Constitution, or the acts of Congress, carrying the system into complete effect: in reference to which it may be observed, generally, that the disposition of this power, except in a few specified cases, is left to Congress; and the courts cannot exercise jurisdiction in every case to which the judicial power extends without the intervention of Congress; who, moreover, are not bound to enlarge the jurisdiction of the respective tribunals to every subject which the Constitution warrants, although the whole judicial power ought at all times to be vested in some of the courts created under the authority of the United States.

It is laid down as a rule, in the eighty-second number of "The Federalist," that the state courts retained all pre-existing authority, or the jurisdiction which they had before the adoption of the Constitution; except where it was taken away either by an exclusive authority granted in express terms to the Union, or in a case where a particular authority is granted to the Union, and the exercise of a like authority prohibited to the states, or in the case where an authority is granted to the Union, with which a similar authority in the states would be incompatible. A concurrent jurisdiction in the state courts was admitted

in all such cases; but this doctrine is applicable only to those descriptions of causes of which the state courts had previous cognizance, and not to cases growing out of the new Constitution. Congress, in the course of its legislation, may commit the decision of cases arising under its own laws to the Federal Courts exclusively; but unless the state courts were expressly excluded by the act of Congress, they would, of course, take concurrent jurisdiction of the causes to which those acts may give birth, under the qualifications mentioned; and before the adoption of the Constitution, it was asserted and maintained by its ablest commentators, that in all cases of concurrent jurisdiction, an appeal would, when it was ratified, lie to the Supreme Court of the United States; and that, without such appeal, the concurrent jurisdiction of the state courts in matters of national concern would be inadmissible, because, in that case, it would be inconsistent with the authority and efficiency of the National Government. The practice of that government has been conformable to this doctrine, and the exclusive and concurrent jurisdiction conferred upon the Federal Courts by the acts of Congress are clearly distinguished and marked in correspondence with it. It is, nevertheless, manifest that the judicial power of the United States may in all cases which it comprehends be made exclusive of all state authority, at the election of Congress. Hence the concurrent jurisdiction of the state tribunals depends altogether upon its pleasure, and whenever Congress thinks proper,it may be revoked and extinguished in every case which can constitutionally be made cognizable in the Federal Courts; but without an express provision to the contrary, the

state courts retain a concurrent jurisdiction in all cases of which, previous to the Federal Constitution, they possessed the jurisdiction. The state courts, moreover, may, in the exercise of their ordinary original jurisdiction, take cognizance, incidentally, of cases arising under the Constitution, laws, and treaties of the United States; yet to all these cases the judicial power of the Union extends by means of its appellate jurisdiction. In order to ascertain to what extent, and in what manner, the Federal jurisdiction, both original and appellate, has been disposed of, either by the Constitution itself, or by act of Congress, we must review, as we proposed, the various courts established by the one or ordained by the other.

I. The Supreme Court of the United States, although created by the Constitution, received its organization from the Judiciary Act of 1789, and the several supplementary laws which have at different times subsequently been passed in addition thereto. The Constitution had merely declared that there should be a Supreme Court, with certain original and appellate powers; it is merely to be implied from that instrument that the chief-justice should preside in it, with one or more judges to be associated with him; but by the existing acts of Congress, it consists of the chief-justice and eight associate judges, any five of whom constitute a quorum. It holds one term annually at the seat of the General Government, commencing on the first Monday in January; and although the presence of five judges is required for the general business of the court, yet any one or more of them may make all necessary orders in a suit, preparatory to the hearing or tri

al; and it is made the special duty of the chiefjustice to attend at Washington on the first Monday in August annually for the same purpose.

The Supreme Court has, by the Constitution, exclusive original jurisdiction of all controversies of a civil nature, where a state can be made a party, except in suits by a state against one or more of its citizens, or against citizens of other states, or against aliens; in which cases it has original, but not exclusive jurisdiction. It has also, exclusively, such jurisdiction of spits or proceed ings against ambassadors, or other public ministers, or their domestics, as a court of law can exercise consistently with the law of nations, and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul or vice-consul may be a party..

The Constitution also confers on it an appellate jurisdiction, under such exceptions or regulations as Congress may prescribe; and by the first judiciary act it is declared that appeals shall lie to this court from the Circuit Courts of the United States, and, in certain cases, from the highest courts of the several states. Final judgments and decrees in civil actions, and suits in equity in the Circuit Courts, where brought there by original process, or removed thither from the state courts, or by appeal from the District Courts of the United States, where the matter in dispute exceeds a specified sum, may be re-examined, and reversed or affirmed, in the Supreme Court; and final judgments and decrees of the Circuit Courts, in cases of admiralty or maritime jurisdiction, and in questions of prize or no prize, where the matter in dispute exceeds the same amount, may be reviewed on appeal in the Supreme Court; and in

these cases, new evidence is admitted on the appeals conformably with the general doctrines and usages of appellate courts of admiralty. So, also, a final judgment or decree of the highest court of law or equity in a state may be brought up on the allegation of error in point of law to the Supreme Court of the United States; if the validity of a treaty, of an act of Congress, or of an authority exercised under the Government of the United States, was drawn in question in the state court, and the decision was against that validity; or if the validity of any state law or authority was drawn in question, on the ground of its being repugnant to the Constitution, treaties, and laws of the United States, and the decision was in favour of its validity; or if the construction of any clause of the Constitution, or of a treaty, or of a statute of the United States, or of a commission held under them, was drawn in question, and the decision was against the title, right, privilege, or exemption specially claimed under the authority of the Union. Upon these appeals from the decision of a state court, however, no other error can be assigned or regarded in the Supreme Court, than such as appears on the face of the record, and immediately respects the question of the validity or construction of the Constitution, treaties, statutes, commissions, or authority in dispute.

The original jurisdiction of the Supreme Court, or that cognizance which it takes of causes in their initiatory proceedings, is, as you may have perceived, of a very limited character. It is confined by the Constitution to those cases which affect ambassadors, and other public ministers and consuls, and those in which a state is a party; and it has been made a question whether the original jurisdiction was intended to be exclusive of the inferior courts of the