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delegated to it by the Constitution; in other words, whether the original jurisdiction excludes the appellate ; and so, on the other hand, whether the latter implies a negative of the former. It has been said, that the very distinction, taken in the Constitution, between original and appellate jurisdiction, presupposes, that, where the one can be exercised, the other cannot. For example, since the original jurisdiction extends to cases, where a State is a party, this is the proper form, in which such cases are to be brought before the Supreme Court; and, therefore, a case, where a State is a party, cannot be brought before the Court, in the exercise of its appellate jurisdiction ; for the affirmative here, as well as in the cases of original jurisdiction, includes a negative of the cases not enumerated.

§ 359. If the correctness of this reasoning were admitted, it would establish no more, than that the Supreme Court could not exercise appellate jurisdiction in cases, where a State is a party. But it would by no means establish the doctrine, that the judicial power of the United States did not extend, in an appellate form, to such cases. The exercise of appellate jurisdiction is far from being limited, by the terms of the Constitution, to the Supreme Court. There can be no doubt, that Congress may create a succession of inferior tribunals, in each of which it may vest appellate, as well as original jurisdicdiction. This results from the very nature of the delegation of the judicial power in the Constitution. It is delegated in the most general terms; and may, therefore, be exercised under the authority of Congress, under every variety of form of original and of appellate jurisdiction. There is nothing in the instrument, which restrains or limits the power ; and it must, consequently, subsist in the utmost latitude, of which it is in its nature susceptible. The result, then, would be, that, if the appellate jurisdiction over cases, to which a State is a party, could not, according to the terms of the Constitution, be exercised by the Supreme Court, it might be exercised exclusively by an inferior tribunal. The soundness of any reasoning, which would lead us to such a conclusion, may well be questioned. It proceeds upon the ground, that, because the character of the party alone, in some instances, entitles the Supreme Court to maintain original jurisdiction, without any reference to the nature of the case, therefore, the character of the case, which in other instances is made the very foundation of appellate jurisdiction, cannot attach. Now, that is the very point of controversy. It is not only not admitted, but it is solemnly denied. The argument might just as well, and with quite as much force, be pressed in the opposite direction. It inight be said, that the appellate jurisdiction is expressly extended by the Constitution to all cases in law and equity, arising under the Constitution, laws, and treaties of the United States, and, therefore, in no such cases could the Supreme Court exercise original jurisdiction, even though a State were a party.

§ 361. The next inquiry is, whether the eleventh amendment to the Constitution has effected any change of the jurisdiction, thus confided to the judicial power of the United States. The words of the amendment, are, “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the States, by citizens of another State, or by citizens or subjects of any foreign state.” It is a part of our history, that, at the adoption of the Constitution, all the States were greatly indebted ; and the apprehension, that these debts might be prosecuted in the National courts, formed a very serious objection to that instrument. Suits were instituted ; and the Supreme Court maintained its jurisdiction. The alarm was general; and, to quiet the apprehensions, that were so extensively entertained, this amendment was proposed in Congress, and adopted by the State Legislatures. That its motive was not to maintain the sovereignty of a State from the degradation, supposed to attend a compulsory appearance before the tribunal of the Nation, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more States, or between a State and a foreign state. The jurisdiction of the Court still extends to these cases ; and in these, a State may some other cause, than the dignity of a State. There is no difficulty in finding this cause. Those, who were inhibited from commencing a suit against a State, or from prosecuting one, which might be commenced before the adoption of the amendment, were persons, who might probably be its creditors. There was not much reason to fear, that foreign or sister States would be creditors to any considerable amount ; and there was reason to retain the jurisdiction of the Court in those cases, because it might be essential to the preservation of peace. The amendment, therefore, extended to suits commenced, or prosecuted by individuals, but not to those brought by States.

§ 362. The first impression, made on the mind by this amendment, is, that it was intended for those cases, and for those only, in which some demand against a State is made by an individual in the courts of the Union. If we consider the cause, to which it is to be traced, we are conducted to the same conclusion. A general interest might well be felt, in leaving to a State the full power of consulting its convenience in the adjustment of its debts, or of other claims upon it; but no interest could be felt in so changing the relations between the whole and its parts, as to strip the Government of the means of protecting, by the instrumentality of its courts, the Constitution and laws from active violation.

§ 363. This amendment, then, was designed to prevent any suit being originally commenced by any private person against a State ; but it was not designed to control or interfere with the appellate jurisdiction of the Supreme Court, in cases to which that appellate jurisdiction extended before the amendment. A case, therefore, originally commenced by a State against a private person in any other Court, which involved any question arising under the Constitution, laws, or treaties, of the United States, might still be revised by the Supreme Court, upon an appeal, or writ of error, as the case might require.

§ 364. Another inquiry, touching the appellate jurisdiction of the Supreme Court, of a still more general character, is, whether it extends only to the inferior courts of the Union, constituted by Congress, or reaches to cases decided in the State courts. This question has been made on several occasions; and it has been most deliberately and solemnly decided by the Supreme Court, that it reaches the latter cases.

§ 365. We have already seen, that appellate jurisdiction is given by the Constitution to the Supreme Court, in all cases, where it has not original jurisdiction ; subject, however, to such exceptions and regulations, as Congress may prescribe. It is, therefore, capable of einbracing every case enumerated in the Constitution, which is not exclusively to be decided by way of original jurisdiction, But the exercise of appellate jurisdiction is far from being limited, by the terms of the Constitution, to the Supreme Court. There can be no doubt, that Congress may create a succession of inferior tribunals, in each of which it may vest appellate, as well as original jurisdiction. The judicial power is delegated by the Constitution in the most general terms, and may, therefore, be exercised by Congress, under every variety of form of appellate, or of original jurisdiction. And as there is nothing in the Constitution, which restrains, or limits this power, it must, therefore, in all these cases, subsist in the utmost latitude, of which, in its own nature, it is susceptible.

§ 366. If the Constitution meant to limit the appellate jurisdiction to cases pending in the courts of the United States, it would necessarily follow, that the jurisdiction of these courts would, in all the cases enumerated in the Constitution, be exclusive of State tribunals. How, otherwise, could the jurisdiction extend to all cases, arising under the Constitution, laws, and treaties, of the United States, or, to all cases of admiralty and maritime jurisdiction ? If some of these cases might be entertained by State tribunals, and no appellate jurisdiction, as to them, should exist, then the appellate power would not extend to all, but to some, cases. If State tribunals might exercise concurrent jurisdiction over all, or some of the other classes of cases in the Constitution, without control, then the appellate jurisdiction of the United States might, as to such cases, have no real existence, contrary

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circumstances, to give effect to the judicial power, it must be construed to be exclusive ; and this, not only when the very question should arise directly ; but when it should arise incidentally, in cases pending in State courts. This construction would abridge the jurisdiction of such courts far more, than has been ever contemplated in any act of Congress.

$367. But it is plain, that the framers of the Constitution did contemplate, that cases within the judicial cognizance of the United States, not only might, but would arise in the State courts, in the exercise of their ordinary jurisdiction. With this view, the sixth article declares, that, “ This Constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges, in every State, shall be bound thereby, any thing, in the Constitution or -laws of any State, to the contrary notwithstanding.” It is obvious, that this obligation is imperative upon the State judges in their official, and not merely in their private capacities. From the very nature of their judicial duties, they would be called upon to pronounce the law, applicable to the case in judgement. They were not to decide, merely according to the laws, or Constitution, of the State, but according to the Constitution, laws, and treaties, of the United States, the supreme law of the land.” .

§ 368. A moment's consideration will show us the necessity and propriety of this provision, in cases, where the jurisdiction of the State courts is unquestionable. Suppose a contract, for the payment of money, is made between citizens of the same State, and performance thereof is sought in the courts of that State ; no person can doubt, that the jurisdiction completely and exclusively attaches, in the first instance, to such courts. Suppose at the trial, the defendant sets up, in his defence, a tender under a State law, making paper money a good tender, or a State law, impairing the obligation of such contract, which law, if binding, would defeat the suit. The Con

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