power, jurisdiction, and right, which was not by the confederation expressly delegated to the United States in congress assembled. The confederation had no power to legislate for the individual citizens of the country, but only for the states in their corporate or political capacity, and the concurrence of thirteen distinct sovereign wills was requisite for the full and complete execution of every important measure enacted by congress.+ § 379. Same-No judiciary under the confederation.-The Articles of Confederation vested in congress the power of (1) appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of capture," and (2) of deciding in the last resort on appeal all disputes between two or more states concerning boundary, jurisdiction or any other cause whatever. This was the extent of the judicial power of the United States under that instrument, and the want of a federal judiciary has been declared to be the crowning defect of the confederation." § 380. Same-The confederation had no power to enforce its laws. The essential principle of government is the power 4 Articles of Confd. arts. II and III, 8 Fed. Stat. Anno. 7, 8; Federalist, Nos. XV and XVI; Gibbons v. Ogden, 9 Wheat. 1-240 (6:23, 81). . In Gibbons v. Ogden, supra, Chief Justice Marshall said: "As preliminary to the very able discussions of the constitution, which we have heard from the bar, and as having some influence on its construction, reference has been made to the political situation of these states, anterior to its formation. It has been said that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. But when these allied sovereigns converted their league into a government, when they converted their con gress of ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowered to enact laws on the most interesting subjects, the whole character in which the states appear, underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected." 5 Articles of Confd. art. IX, 8 Fed. Stat. Anno. 11; Penhallow v. Doane, 3 Dall. 54 (1:508); Doane v. Penhallow, 1 Dall. 218 (1:108). • Articles of Confd. art. IX, 8 Fed. Stat. Anno. 11; Federalist, No. VII. 7 Federalist, No. XXII. to make and enforce laws. The only way in which the enforcement of laws can be effectuated is either (1) by the orderly and peaceful methods of judicial power, exercised through a duly organized judicial department of government, or (2) by force of arms. The confederacy did not possess the power to proceed in either way, and its measures amounted "to nothing more than advice or recommendations;" and while the league of states, sustained by the spirit of patriotism, was competent to successful revolution, yet, as a civil government, it was doomed to dismal failure.s * con § 381. The federal government created and invested with full judicial power.-When "that best oracle of wisdom, experience," had shown the "insufficiency of the federation to the preservation of the Union," and its destitution of "energy" had brought the country to "almost the last stage of national humiliation," the people of the United States, acting, not as one consolidated community, but as the people of the states, each respectively, assembled in convention in their several states, 10 in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to" themselves and their "posterity," 66 8 Federalist, Nos. XV and XXII. 9 Federalist, No. XV. 10 McCulloch V. Maryland, 4 Wheat. 316, 403 (4:579, 600). In the opinion in this case Chief Justice Marshall said: "The convention which framed the constitution was indeed elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing congress of the United States, with a request that it might be submitted to a convention of delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification.' This mode of proceeding was adopted; and by the con vention, by congress, and by the state legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states-and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments." ordained and established the federal constitution; "1 and by the adoption of that instrument, the league of states was displaced, and a complete and symmetrical federal government was created and established,12 with legislative, executive and judicial departments; 13 and this government, so created, was, by the constitution, granted full judicial power, commensurate with all its possible needs, and sufficient for the execution of the great powers of government vested in it, and the enforcement of the limitations imposed upon the states by the creative instrument.14 § 382. The limits of the judicial power defined in the constitution, but the power not distributed by it.—The limits of the judicial power of the United States are defined in the federal constitution; but that instrument did not, except in a few enumerated instances, applicable exclusively to the supreme court, distribute that judicial power, nor provide the detailed regulations for its appropriate exercise, devolving that duty on congress, in whom was vested, by express constitutional grant, the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested by the constitution in the government of the United States.15 §383. Same-Limits of the grant of judicial power.-The constitutional grant of judicial power to the United States is that: "The judicial powers 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, or other public ministers, and consuls; to all cases of admiralty and maritime 11 Preamble to Federal Const. 12 Gibbons v. Ogden, 9 Wheat. 1-241 (6:23, 81). 13 Martin v. Hunter's Lessees, 1 Wheat. 304 (4:97); Georgia v. Stanton, 6 Wall. 50, 78 (18:721). 14 Cohens v. Virginia, 6 Wheat. 264 (5:257); Martin v. Hunter's Lessees, 1 Wheat. 304 (4:97); Dartmouth College v. Woodward, 4 Wheat. 518 (4:629); McCulloch v. Maryland, 4 Wheat. 316 (4: 579); Gibbons v. Ogden, 9 Wheat. 1 (6:23); Brown v. Maryland, 12 Wheat. 419 (6:678); Fletcher v. Peck, 6 Cranch, 87 (3:162); Ableman v. Booth, 21 How. 506, 526 (16:169); U. S. v. Tarble, 13 Wall. 379, 413 (20:597); Re Debs, 158 U. S. 564, 600 (39:1093); U. S. Const. art. III. 15 Rhode Island V. Massachusetts, 12 Pet. 657, 721, 722 (9: 1233, 1259); Sheldon v. Sill, 8 How. 441, 449 (12:1147, 1151); Cary v. Curtis, 3 How. 235, 245 (11:576, 581); Martin v. Hunter's Lessees, 1 Wheat. 304, 381 (4:97, 116); Smith v. Jackson, 1 Paine, 453, Fed. Cas. No. 13,064. jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; bebetween 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." 16 And a further limitation is placed upon the power by the eleventh amendment which declares that: "The judicial power of the United States shall not be construed to extend to any suit at law or in equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." 17 § 384. Same-Constitutional distribution of judicial power to the supreme court.-The constitution distributes a portion of the judicial power to the supreme court, declaring that in cer tain enumerated classes of cases its jurisdiction shall be original, and in others appellate. In the second section of the third article, it is declared that: "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 other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the congress shall make.” It is not within the power of congress to vest in the supreme court original jurisdiction in other cases than those specified in the constitutional provision just quoted, although such cases be within the general grant of judical power. 18 In cases arising under the constitution, laws and treaties of the United States, the jurisdiction of the supreme court is appellate only; this is fixed by the distributive clause of the constitution. And although a state may be a party to a case which arises under the constitution, or a law, or a treaty of the United States, yet the jurisdiction of the supreme court in such case is appellate and not original. When the framers of the constitution declared, in the distributive clause that the jurisdiction shall be original in cases where a state shall be a party, and that it 16 U. S. Const. art. III. 17 XI art. of Amendt. 18 Marbury v. Madison, 1 Cranch, 137 (2:60); Ex parte Yerger, 8 Wall. 96, 97 (19:336). shall be appellate in all cases arising under the constitution or laws, they designed to include in the first class those cases in which jurisdiction is given because a state is a party, and to include in the second class those cases in which jurisdiction is given because they arise under the constitution or laws. And, hence, it is, that writs of error lie from the supreme court of the United States, to the highest courts of the state, in cases of the second class, although the state itself may be a party.19 § 385. The constitution requires the judicial power to be vested in a system of federal courts-Not in the state courts.— It is a principle of governmental science of universal application, that every government ought to contain within itself the means necessary to the full and complete execution of its own laws and the effectual enforcement of its own authority, without the aid, and free from the interference or control of all other governments, and courts of justice are the means most usually employed for the attainment of these ends; every government must repose upon its own courts, and not upon the courts of another government.20 And, accordingly, the federal constitution expressly requires that the judicial power of the United States shall be vested in a system of courts established and organized by congress, pursuant to the authority vested in it by that instrument, and no part of that judicial power can be vested in the courts of the several states.2 The language of the constitution upon the point is that: "The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish." 22 But congress may authorize the judicial officers of the several states to exercise such powers and to perform such duties as are incidental to the judicial power, rather than a part of it, such as the power to take affidavits, to arrest and commit for trial offenders against the laws of the United States, the naturalization of aliens, and to arrest deserting seamen and deliver them on board their vessels.23 19 Cohens v. Virginia, 6 Wheat. 264 (5:257). 20 Cohens v. Virginia, 6 Wheat. 264. 387, 388 (5:257, 287); Federalist, Nos. XV and XVI. 21 Martin v. Hunter's Lessees, 1 Wheat. 304, 335 (4:97, 105); Hous 21 ton v. Moore, 5 Wheat. 1, 27 (5: 22 U. S. Const. art. III, sec. 1. |