§ 1750. In regard to jurisdiction over crimes committed against the authority of the United States, it has been held, that no part of this jurisdiction can, consistently with the constitution, be delegated to state tribunals. It is true, that congress has, in various acts, conferred the right to prosecute for offences, penalties, and forfeitures, in the state courts. But the latter have, in many instances, declined the jurisdiction, and asserted its unconstitutionality. And certainly there is, at the present time, a decided preponderance of judicial authority in the state courts against the authority of congress to confer the power."

§ 1751. In the exercise of the jurisdiction confided respectively to the state courts, and those courts of the United States, (where the latter have not appellate jurisdiction,) it is plain, that neither can have any right to interfere with, or control, the operations of the other. It has accordingly been settled, that no state court can issue an injunction upon any judgment in a court of the United States; the latter having an exclusive au

from time to time, ordain and establish. The judges both of the Supreme and inferior courts, shall hold their offices during good behaviour," &c. Are not these judges of the inferior courts the same, in whom the jurisdiction is to be vested? Who are to appoint them? Who are to pay their salaries? Can their compensation be diminished? All these questions must be answered with reference to the same judges, that is, with reference to judges of the Supreme and inferior courts of the United States, and not of state courts. See also The Federalist, No. 45.

1 Martin v. Hunter, 1 Wheat. R. 337; Houston v. Moore, 5 Wheat. R. 35, 69, 71, 74, 75.

2 See Sergeant on Const. Law, ch. 27, (ch. 28;) United States, v. Campbell, 6 Hall's Law Jour. 113; United States v. Lathrop, 17 John. R. 5; Coruth v. Freely, Virginia Cases, 321; Ely v. Peck, 7 Connecticut R. 239; 1 Kent's Comm. Lect. 18, p. 370, &c. (2 edit. p. 395 to 404.) But see 1 Tucker's Black. Comm. App. 181, 182; Rawle on Const. ch. 21.

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thority over its own judgments and proceedings.1 Nor can any state court, or any state legislature, annul the judgments of the courts of the United States, or destroy the rights acquired under them; 2 nor in any manner deprive the Supreme Court of its appellate jurisdiction;3 nor in any manner interfere with, or control the process (whether mesne or final) of the courts of the United States; nor prescribe the rules or forms of proceeding, nor effect of process, in the courts of the United States; nor issue a mandamus to an officer of the United states, to compel him to perform duties, devolved on him by the laws of the United States. And although writs of habeas corpus have been issued by state judges, and state courts, in cases, where the party has been in custody under the authority of process of the courts of the United States, there has been considerable diversity of opinion, whether such an exercise of authority is constitutional; and it yet remains to be decided, whether it can be maintained.'

§ 1752. Indeed, in all cases, where the judicial power of the United States is to be exercised, it is for congress alone to furnish the rules of proceeding, to

1 McKim v. Voorhis, 7 Cranch's R. 279; 1 Kent's Comm. Lect. 19, p. 382 to 387, (2 edit. 409 to 412.)

2 United States v. Peters, 5 Cranch, 115; S. C. 2 Peters's Cond. R. 202; 1 Kent's Comm. Lect. 19, p. 382, &c. (2 edit. p. 409, &c.)

3 Wilson v. Mason, 1 Cranch, 94; S. C. 1 Peters's Cond. R. 242;

1 Kent's Comm. Lect. 19, p. 382, (2 edit. 409.)

4 United States v. Wilson, 8 Wheat. R. 253.

5 Wayman v. Southard, 10 Wheat. R. 1. 21, 22; Bank of the United States v. Halstead, 10 Wheat. R. 51.

6 McClung v. Silliman, 6 Wheat. R. 598.

7 See Sergeant on Const. Law, ch. 27, (ch. 28 ;) 1 Kent's Comm. Lect. 18, p. 375, (2 edit. p. 400.) See 1 Tucker's Black. Comm. App. 291, 292.

direct the process, to declare the nature and effect of the process, and the mode, in which the judgments, consequent thereon, shall be executed. No state legislature, or state court, can have the slightest right to interfere; and congress are not even capable of delegating the right to them. They may authorize national courts to make general rules and orders, for the purpose of a more convenient exercise of their jurisdiction; but they cannot delegate to any state authority any control over the national courts.1

§ 1753. On the other hand the national courts have no authority (in cases not within the appellate jurisdiction of the United States) to issue injunctions to judgments in the state courts; or in any other manner to interfere with their jurisdiction or proceedings.

2

§ 1754. Having disposed of these points, we may again recur to the language of the constitution for the purpose of some farther illustrations. The language is, that "the Supreme Court shall have appellate juris'diction, both as to law and fact, with such exceptions, "and under such regulations, as the congress shall "make."

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§ 1755. In the first place, it may not be without use to ascertain, what is here meant by appellate jurisdiction; and what is the mode, in which it may be exercised. The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted, and does not create that

1 Wayman v. Southard, 10 Wheat. R. 1; Palmer v. Allen, 7 Cranch, R. 550; Gibbons v. Ogden, 9 Wheat. R. 207, 208; Bank of the United States v. Halstead, 10 Wheat. R. 51.

2 Diggs v. Wolcott, 4 Cranch, 178. See 1 Kent's Comm. Lect. 15, p. 301, (2 edit. 321.)

3 Ex parte Cabrera, 1 Wash. Cir. R. 232; 1 Kent's Comm. Lect. 19, p. 386, (2 edit. p. 411, 412.)

cause.1 In reference to judicial tribunals, an appellate jurisdiction, therefore, necessarily implies, that the subject matter has been already instituted in, and acted upon, by some other court, whose judgment or proceedings are to be revised. This appellate jurisdiction may be exercised in a variety of forms, and indeed in any form, which the legislature may choose to prescribe; but, still, the substance must exist, before the form can be applied to it. To operate at all, then, under the constitution of the United States, it is not sufficient, that there has been a decision by some officer, or department of the United states; it might be must?) by one clothed with judicial authority, and acting in a judicial capacity. A power, therefore, conferred by congress on the Supreme Court, to issue a mandamus to public officers of the United States generally, is not warranted by the constitution; for it is, in effect, under such circumstances, an exercise of original jurisdiction. But where the object is to revise a judicial proceeding, the mode is wholly immaterial; and a writ of habeas corpus, or mandamus, a writ of error, or an appeal, may be used, as the legislature may prescribe.*

§ 1756. The most usual modes of exercising appellate jurisdiction, at least those, which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin, and removes a cause, entirely subjecting

1 Marbury v. Madison, 1 Cranch, R. 175, 176; S. C. 1 Peters's Cond., R. 267, 282; The Federalist, No. 81; Weston v. City Council of Charleston, 2 Peters's Sup. R. 449.

4 Ibid; United States v. Hamilton, 3 Dall. 17; Er parte Bollman, 4 Cranch, R. 75; Ex parte Kearney, 7 Wheat. R. 38; Ex parte Crane, 5 Peters's Sup. R. 190.

the fact, as well as the law, to a review and a re-trial. A writ of error is a process of common law origin; and it removes nothing for re-examination, but the law.1 The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury.

§ 1757. It is observable, that the language of the constitution is, that "the Supreme Court shall have "appellate jurisdiction, both as to law and fact." This provision was a subject of no small alarm and misconstruction at the time of the adoption of the constitution, as it was supposed to confer on the Supreme Court, in the exercise of its appellate jurisdiction, the power to review the decision of a jury in mere matters of fact; and thus, in effect, to destroy the validity of their verdict, and to reduce to a mere form the right of a trial by jury in civil cases. The objection was at once seized hold of by the enemies of the constitution; and it was pressed with an urgency and zeal, which were well nigh preventing its ratification.2 There is certainly some foundation, in the ambiguity of the language, to justify an interpretation, that such a review might constitutionally be within the reach of the appellate power, if congress should choose to carry it to that extreme latitude. But, practically speaking, there was not the slightest danger, that congress would ever adopt such a course, even if it were within their

1 Wiscart v. Dauchy, 3 Dall. R. 321; S. C. 1 Peters's Cond. R. 144; Cohens v. Virginia, 6 Wheat. R. 409 to 412.

2 See 1 Elliot's Debates, 121, 122; 2 Elliot's Debates, 346, 380 to 410; Id. 413 to 427; 3 Elliot's Debates, 139 to 157; 2 Amer. Museum, 425; Id. 534; Id. 540, 548, 553; 3 Amer. Museum, 419, 420 ; 1 Tuck. Black. Comm. App. 351.

3 2 Elliot's Debates, 318, 347, 419; 3 Elliot's Debates, 140, 149; Rawle on Const. ch. 10, p. 135.