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and if we only turn to the body of the Constitution, an explanation is at once given, for the prohibitions are upon the legislative power of the State, as that " no State shall pass any bill of attainder, or ec post facto law, lay imposts, coin money, emit bills of credit,” &c. The people in their original character pass no laws. They only make their Constitution. The real intention of the clause was to restrain the State governments. The State sovereignties are only referred to when the word." people” is used; and then in the same sense as when the Constitution is made by the people of the United States," which clearly means the people of the separate State sovereignties. The preceding and ninth amendment evidently enforces ibis view. "'The enumeration in the Constitution of certain rights, shall not be construed to deny, or disparage others retained by the people.” The reservation bere, is to the creating power of the government, and, as we shall shew, that the people of the States, in their separate independent, political communities, created the government, and not the people of the United States as collectively; so the deduction is clear, that when power is “reserved to the people, it must mean the people in the same capacity in which they formed the government, that is as the people of the separate States.
But it was probably deemed necessary by some, not only to reserve all rights, not included in the enumeration, to the original State sovereignties—to the power in fact which created the government—but also to every department, or portion of the sovereign power existing or to exist in each State; and hence the necessity of providing that the State governments should continue to exercise all power, from the exercise of which the Constitution did not prohibit them. Both amendments were only inserted abundante cautela, and were they expunged, no alteration could take place in the relative rights of the parties to the compact.
It was quite natural for such as believed, that “the Constitution was not necessarily carved out of the existing State sovereignties,” to ascribe to the creators of the government a desire "to make the State governments, in given cases, subordi nate to those of the nation,” as if there can be subordination, where it is the States which create, and the States which can destroy the government. And it was still more natural, that all such should contend for such a construction as would not only make the instrument "provide merely for the exigencies of a few years," but also, for "all those changes and modifications of power, which, in a long lapse of ages, might be indispensable to effect the general objects of the charter.” Here it is, that we find fault with the Supreme Court. Instead of
leaving such defects in the Constitution, as time and experience shall discover, to be remedied by the amendatory power, which is there provided, the judges at once supply these defects, by an extension of their own powers. “ Boni judicis est ampliare jurisdictionem." And hence there have been instances where they not only have given power by implication, when there was not a word in the instrument to warrant it, but where the general context was decidedly repugnant to it.
The clauses of the Constitution, under which the Supreme Court claims to revise the proceedings and judgments of the State tribunals, are the first and second sections of the third article. The first section says, "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 establish.” The second section declares, “that the judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two
more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof, and foreign States, citizens or subjects.” “In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as lo law and fact with such exceptions, and under such regulations as the Congress shall make.”
Throwing aside every thing like sophism and subtlety, who can read the two sections without receiving the strongest impression that the appellate jurisdiction here given, is from the inferior Federal tribunals, and not from the State Courts. Here we perceive a complete organization for a Federal Judiciary. There is a judicial power created, and there are specified cases on which that power is to operate. The judicial power is divided into supreme and subordinate, and again into original and appellate jurisdictions. There is also a division of the subjects, for judicial cognizance. Some cases are assigned to the original jurisdiction of a Supreme Court, and the remainder to the appellate jurisdiction. If, then, the whole judicial power of the United States is vested in no other than this Supreme and these inferior tribunals, is not the inference irresistible, that
the courts from whose judgments an appeal was to lie, must be the inferior tribunals, which, under the Constitution, have original cognizance of the enumerated cases? The words are very explicit—“In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction.” What are the cases before mentioned ? The same section answers," The cases to which the judicial power shall extend.” What judicial power? The first section answers—“The judicial power of the United States."
Thus the appeal only lies in the cases, to which the judicial power of the United States shali extend. What, again, are the cases embraced in this definition? We should say, such as are litigated or adjudged in some inferior. Court, which is a portion of the judicial power of the United States. A case adjudged in a State Court of South-Carolina cannot be such a case. That is a case, to which the judicial power of South-Carolina, and not of the United States has extended, and to which no judicial power of any other sovereignty can extend, by virtue of that comity, which permits that Court of competent jurisdiction to proceed to judgment, which first comes into possession of the
The object of this first clause of the second section, extending the judicial power of the United States to certain cases, was, as we conceive, simply to extend the general original jurisdiction of the Federal Courts to those cases; but as a Supreme Court, and inferior tribunals had been just created in the preceding and first section, and without some further limitation, Congress would be left at liberty, in the organization of the judiciary, to make the Supreme Court altogether a Court of appellate jurisdiction, it became necessary to specify the two cases, in which there was a particular desire to give it original jurisdiction, and the appellate jurisdiction in all the other cases followed as a matter of course. The words “ original and appellate,” here refer to the judicial power of the United States, as just vested in the supreme and inferior jurisdictions. The appellate jurisdiction, given to the “cases to wbich the judicial power shall extend,” can only mean the cases, in which some of the inferior courts have exercised original jurisdiction. Before the appellate power can have an existence, two things are essential. First: that there be an object of appeal, or some case, to which judicial power has actually attached. Secondly: that the judicial power be that of the United States. It is not enough, that it be a case to which the original jurisdiction of a Court of the United States, might have "extended,” had the parties, instead of litigating in the State Courts, made a federal tribunal, the Court of first instance. This would be to con
stitute by mere implication, the original jurisdiction of the Courts of one sovereignty, and the appellate jurisdiction of the Courts of a distinct sovereignty, as different portions of one and the sume judiciary power, when there are already existing supreme and inferior tribunals of the United States, having a natural and obvious relation to each other, and already constituted as making up its judicial power, when the State Courts and State Judiciary, are not once mentioned or alluded to in the Constitution, and in the very teeth of the first section in the article which positively declares, that "the judicial power of the United States shall be vested in a Supreme Court, and such inferior Courts as Congress may ordain and establish.” Had the Constilution intended to have given an appeal from the State Courts it might have been easily expressed, by providing, that in all the cases of federal cognizance, whether arising in the State or federal tribunals, the Court should have appellate jurisdiction. But as the judiciary article now stands, any such construction, we must regard as totally inadmissible. A case once adjudicated in a State, or foreign Court of competent jurisdiction can never again be opened, excepting under certain limitations recognized in Courts. How then a case, which the original jurisdiction of the Courts of the United States is not competent to reach, by virtue of its being already disposed of, can be a case to which the judicial power of the United States shall extend, we cannot conceive, unless, as we have already said, the State Courts be the original and the Supreme Court the appeilate, “judicial power of the United States," in the face of that express clause, which confines the judicial power of the United States, to the Supreme Court and to "the inferior tribunals, to be constituted by Congress.”
The word “appellate" is a relative expression used only in reference to some inferior tribunal. It is a term implying superiority. The appellate power is that right, which a superior has to examine into the proceedings of an inferior Court, with a view to confirm or reverse the judgment there given. To speak of appellate jurisdiction, where there is not an inferior tribunal to operate upon, is to converse in an unintelligible language. The instant an appeal lies from the decisions of a particular Court, that Court is an inferior jurisdiction. Until then, it can be distinctly shewn, that the Constitution contemplates the State Courts, as "tribunals inferior to the Supreme Court," there cannot possibly be an appeal from such Courts. In what part of the Constitntion is there a word imply. ing this superiority. Not certainly in the use of the term “Supreme Court." This epithet refers to its supremacy over the
other tribunals of the United States, which were to be constituted by Congress as “inferior tribunals.” Similar expressions of supremacy, are to be found in every State Constitution, particularly in those of Ohio and South Carolina. The expression " Supreine or Superior Court," is unavoidable, where the jurisdiction of one Court, in any judicial system, is to be appelJate. But a conclusive reason why the State Courts are not, by the Constitution, regarded as inferior to the Supreme Court in whole or in part, is, that the instrument recognizes no tribunal as inferior to that Court, excepting such as Congress shall ordain and establish. “Congress shall have power to constitute tribunals inferior to the Supreme Court.” And again, “the judicial power shall be vested in one Supreme Court, and in such Inferior Courts as Congress shall, from time to time, orduin and estublish.” Can stronger passages be adduced to shew, that the only tribunals which were to be inferior to the Supreme Court, as a portion of the same judicial power, were “the tribunals to be constituted by Congress?" Can a power given to Congress to constitute tribunals inferior to the Supreme Court, possibly include a power to make the State Courts those inferior tribunals? The Constitution virtually declares that it cannot, for it excludes the State Courts from its contemplation, by providing, in the next sentence, that the judges of the inferior tribunals were to be federal and not State judges. “The judges, both of the Supreme and Inferior Couris, shall bold their offices during good behaviour ; and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.” Can the State Courts then be contemplated? The thought is inadmissible in any shape. To constitute a tribunal is to define the extent of its juri-diction, to fix the number of its judges, to prescribe the times and places of its sittings, and to regulate its proceedinys, &c. Can Congress exercise any of these powers in relation to State Courts? Can State judges be impeached by Congress ? If then the State Counts cannot under any construction be the tribunals contemplated by the Constitution to be “inferior to the Supreme Court," and inferiority in a State tribunal, in whole or in part, is indispensable to give any other Court a power to revise its judgments or proceedings, what is the obvious deduction ? Certainly, that the State Courts could not have been contemplated as the Courts from which the appeal was to be given.
In contending that it was the object of appeal, and not the tribunal from which the appeal was to lie, wbich was in contemVOL. VI.-NO. 12.