CHAPTER XXXI.

POWERS AND JURISDICTION OF THE JUDICIARY.

§308. The next, the second section of the third article, contains an exposition of the jurisdiction appertaining to the National Judiciary. "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 or 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."

§ 309. In a work like the present, it is impossible to present a full exposition of the reasons for conferring the different portions of this jurisdiction, all having the same general object, the promotion of harmony, good order, and justice at home, and the preservation of peace and commercial intercourse abroad. In a general summary, it may be said, that the jurisdiction extends to cases arising under the Constitution, laws, and treaties, of the United States, because the judicial power ought to be coextensive with the legislative and executive powers, in order to ensure uniformity of interpretation and operation of the Constitution, laws, and treaties, and the means of enforcing rights, duties, and remedies, arising under them. It extends to cases affecting ambassadors, public ministers, and consuls, because they are officers of foreign nations, entitled by the law of nations to the protection of our Government; and any misconduct towards them might lead to private retaliations, or open hostilities, on the part of

the offended Government. It extends to cases of admiralty and maritime jurisdiction, because such cases grow out of, and are intimately connected with, foreign commerce and navigation, with offences committed on the ocean, and with the right of making captures, and carrying on the operations of war. It extends to controversies, to which the United States are a party, because the Government ought to possess a right to resort to National courts, to decide all controversies and contracts, to which it is a party. It extends to controversies between two or more States, in order to furnish a peaceable and impartial tribunal, to decide cases, where different States claim conflicting rights, in order to prevent gross irritations, and border warfare. It extends to controversies between a State and the citizens of another State; because a State ought not to be the sole judge of its own rights, as against the citizens of other States. It extends to controversies between citizens of different States; because these controversies may embrace questions, upon which the tribunals of neither State could be presumed to be perfectly impartial, from the peculiar public interests involved in them. It extends to controversies between citizens of the same State, claiming lands under grants of different States; because a similar doubt of impartiality may arise. It extends to controversies between a State, or its citizens, and foreign States, citizens, or subjects; because foreign States and citizens have a right to demand an impartial tribunal for the decision of cases, to which they are a party; and want of confidence in the tribunals of one party may be fatal to the public tranquillity, or at least, may create a discouraging sense of injustice. Even this cursory view cannot fail to satisfy reasonable minds of the importance of the powers of the National Judiciary to the tranquillity and sovereignty of the States, and to the preservation of the rights and liberties of the people.

§ 310. But the subject is so important, and has so often become matter of political discussion, and constitutional inquiry, that it deserves to be examined more at large in this place. We shall, therefore, proceed to examine each of these cases, in which jurisdiction is conferred, in

the order, in which it stands, in order more fully to comprehend the particular reasons, on which it is founded.

§ 311. And first: The judicial power extends to all cases in law and equity, arising under the Constitution, the laws, and the treaties, of the United States. And, by cases in this clause, we are to understand criminal, as well as civil, cases.

§ 312. The propriety of the delegation of jurisdiction, in " cases arising under the Constitution," rests on the obvious consideration, that there ought always to be some constitutional method of giving effect to constitutional provisions. What, for instance, would avail restrictions on the authority of the State Legislatures, without some constitutional mode of enforcing the observance of them? The States are, by the Constitution, prohibited from doing a variety of things; some of which are incompatible with the interests of the Union; others, with its peace and safety; others, with the principles of good government. The imposition of duties on imported articles, the declaration of war, and the emission of paper money, are examples of each kind. No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the Government to restrain, or correct the infractions of them. The power must be either a direct negative on the State laws, or an authority in the National courts to overrule such, as shall manifestly be in contravention to the Constitution. The latter course was thought by the Convention to be preferable to the former; and it is, without question, by far the most acceptable to the States.

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§313. The same reasoning applies, with equal force, cases arising under the laws of the United States.' In fact, the necessity of uniformity, in the interpretation of these laws, would of itself settle every doubt, that could be raised on the subject. "Thirteen independent courts of final jurisdiction over the same causes, (it was said,) is a Hydra in government, from which nothing but contradiction and confusion can proceed." The number is now increased to twenty-six.

§ 314. There is still more cogency, if it be possible,

in the reasoning, as applied to "cases arising under treaties made, or which shall be made, under the authority of the United States." Without this power, there would be perpetual danger of collision, and even of war, with foreign powers, and an utter incapacity to fulfil the ordinary obligations of treaties. The want of this power was (as we have seen) a most mischievous defect in the Confederation; and subjected the country, not only to violations of its plighted faith, but to the gross, and almost proverbial, imputation of punic insincerity.

§ 315. It is observable, that the language is, that "the judicial power shall extend to all cases in law and equity," arising under the Constitution, laws, and treaties, of the United States. 66 What is to be understood by cases in law and equity," in this clause? Plainly, cases at the common law, as contradistinguished from cases in equity, according to the known distinction in the jurisprudence of England, which our ancestors brought with them upon their emigration, and with which all the American States were familiarly acquainted. Here, then, at least, the Constitution of the United States appeals to, and adopts, the common law, to the extent of making it a rule in the pursuit of remedial justice in the courts of the Union. If the remedy must be in law, or in equity, according to the course of proceedings at the common law, in cases arising under the Constitution, laws, and treaties of the United States, it would seem irresistibly to follow, that the principles of decision, by which these remedies must be administered, must be derived from the same source. Hitherto, such has been the uniform interpretation and mode of administering justice, in civil suits, in the courts of the United States, in this class of cases.

§ 316. Another inquiry may be, what constitutes a case, within the meaning of this clause. It is clear, that the Judicial department is authorized to exercise jurisdiction to the full extent of the Constitution, laws, and treaties, of the United States, whenever any question respecting them shall assume such a form, that the judicial power is capable of acting upon it. When it has assumed such a form, it then becomes a case; and then, and not

till then, the judicial power attaches to it. A case, then, in the sense of this clause of the Constitution, arises, when some subject, touching the Constitution, laws, or treaties, of the United States, is submitted to the court by a party, who asserts his rights in the form prescribed by law. In other words, a case is a suit in law or equity, instituted according to the regular course of judicial proceedings; and, when it involves any question arising under the Constitution, laws, or treaties, of the United States, it is within the judicial power confided to the Union.

§317. Cases arising under the Constitution, as contradistinguished from those, arising under the laws of the United States, are such as arise from the powers conferred, or privileges granted, or rights claimed, or protection secured, or prohibitions contained, in the Constitution itself, independent of any particular statute enactment. Many cases of this sort may easily be enumerated. Thus, if a citizen of one State should be denied the privileges of a citizen in another State; if a State should coin money, or make paper money a tender; if a person, tried for a crime against the United States, should be denied a trial by jury, or a trial in the State, where the crime is charged to be committed; if a person, held to labor, or service, in one State, under the laws thereof, should escape into another, and there should be a refusal to deliver him up to the party, to whom such service or labor may be due; in these, and many other cases, the question, to be judicially decided, would be a case arising under the Constitution. On the other hand, cases arising under the laws of the United States, are such as grow out of the legislation of Congress, within the scope of their constitutional authority, whether they constitute the right, or privilege, or claim, or protection, or defence, of the party, in whole or in part, by whom they are asserted. The same reasoning applies to cases arising under treaties. Indeed, wherever, in a judicial proceeding, any question arises, touching the validity of a treaty, or statute, or authority, exercised under the United States, or touching the construction of any clause of the Constitution, or any statute, or treaty, of the United States; or touching the validity.