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what cases, is exclusive in the courts of the United States, or may be made exclusive at the election of

attention to the judicial power, found it limited to a few objects, but exercised, with respect to some of those objects, in its appellate form, over the judgments of the state courts. They extend it, among other objects, to all cases arising under the constitution, laws, and treaties of the United States; and in a subsequent clause declare, that in such cases the Supreme Court shall exercise appellate jurisdiction. Nothing seems to be given, which would justify the withdrawal of a judgment rendered in a state court, on the constitution, laws, or treaties of the United States, from this appellate jurisdiction.

“ Great weight has always been attached, and very rightly attached, to contemporaneous exposition. No question, it is believed, has arisen, to which this principle applies more unequivocally, than to that now under consideration.

“The opinion of the Federalist has always been considered, as of great authority. It is a complete commentary on our consticution; and is appealed to by all parties, in the questions, to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part, two of its authors performed in framing the constitution, put it very much in their power to explain the views, with which it was framed. These essays having been published, while the constitution was before the nation, for adoption or rejection, and having been written in answer to objections, founded entirely on the extent of its powers, and on its diminution of state sovereignty, are entitled to the more consideration, where they frankly avow, that the power objected to is given, and defend it.

“ In discussing the extent of the judicial power, the Federalist* says, • Here another question occurs: what relation would subsist between the national and state courts, in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter, to the Supreme Court of the United States. The constitution in direct terms gives an appellate jurisdiction to the Supreme Court, in all the enumerated cases of federal cognizance, in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. The objects of appeal, not the tribunals, from which it is to be made, are alone to he contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the state tribunals. Either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judicial authority of the Union may be

* The Federalist, No. 82.

Congress. This subject was much discussed in the case of Martin v. Hunter. 1

On that occasion the court said ? “ It will be observed, that there are two classes of cases enumerated 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 affect

eluded at the pleasure of every plaintiff, or prosecutor. Neither of these conssquences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the national and state systems are to be regarded as one whole. The courts of the latter, will of course be natural auxiliaries to the execution of the laws of the Union; and an appeal from them will as naturally lie to that tribunal, which is destined to unite, and assimilate the principles of natural justice, and the rules of national decision. The evident aim of the plan of the national convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the Union. To confine, therefore, the general expressions, which give appellate jurisdiction to the Supreme Court, to appeals from the subordinate federal courts, instead of allowing their extension to the state courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation.'

“A contemporaneous exposition of the constitution, certainly of not less authority, than that, which has been just cited, is the judiciary act itself. We know that in the congress, which passed that act, were many cminent members of the convention, which formed the constitution. Not a single individual, so far as is known, supposed that part of the act, which gives the Supreme Court appellate jurisdiction over the judgments of the state courts, in the cases therein specified, to be unauthorized by the constitution.” The 25th section of the judiciary act, of 1789, ch. 20, here alluded to, as contemporaneous construction of the constitution, is wholly founded upon the doctrine, that the appellate jurisdiction of the Supreme Court may constitutionally extend over causes in state courts. See also 1 Kent's Comm. Lect. 15; Rawle o Const. ch. 28; Sergeant on Const. ch. 7.

11 Wheat. R. 304, 333.
2 Ibid. See also Ex parte Cabrera, 1 Wash. Cir. R. 232.

ing ambassadors, other public ministers, and consuls; and cases of admiralty and maritime jurisdiction. In this class the expression is, 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.

$ 1743. “ 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 arising under the constituton, laws, and treaties of the United States. Here the state courts 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 bazard 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.

§ 1744. “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 to all controversies, to which the United States should be a party; yet this power might not have been imperatively given, lest 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,

78

VOL. III.

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.

$ 1745. “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 Cong ess 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 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 constitutional

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