except upon the theory that this court has original jurisdiction of a suit by the United States against a State. As, however, the question of jurisdiction is vital in this case, and is distinctly raised, it is proper to consider it upon its merits. (Mr. Justice Harlan in United States v. State of Texas, 143 United States, 621, 642, decided in 1892.)

We think these proceedings were instituted under a mistaken apprehension of the proper functions of the judiciary. Courts of justice are established to try questions pertaining to the rights of individuals. An action is the form of a suit given by law for the recovery of that which is one's due, or a legal demand of one's right.. But courts will not go out of their proper sphere to determine the constitutionality or unconstitutionality of a law. They will not declare a law unconstitutional or void in the abstract, for that would be interfering with the legislative power, which is separate and distinct . . But unless some individual right directly affecting the parties litigant is thus brought in question, so that a judicial decision becomes necessary to settle the matters in controversy between them relative thereto, the courts have no jurisdiction; and it would be a perversion of the purposes for which they were instituted, and an assumption of functions that do not belong to them, to undertake to settle abstract questions of law, in whatever shape such questions may be presented. . . . Indeed, it is well settled, that courts will not take cognizance of fictitious suits, instituted merely to obtain judicial opinions upon points of law. . . . As we are distinctly informed by both parties that this is a fictitious suit, without enquiring into the grounds upon whch the judgment was rendered, as it was for the defendant and only for costs, the judgment below will be affirmed at the plaintiff's costs in this court. (Mr. Justice Smith in Brewington v. Lowe, 1 Indiana, 79, 80-81, decided in 1848.)

No consent of counsel can give jurisdiction. Appellate jurisdiction depends on the Constitution and the acts of Congress. When these do not confer it, courts of the United States cannot exercise it.

We cannot take cognizance of a case not brought before us in conformity with the_law. The case at bar, therefore, must be DISMISSED. (Chief Justice Chase in The Lucy, 8 Wallace, 307, 309-310, decided in 1868.)

Since men are naturally equal, and their rights and obligations are the same, as equally proceeding from nature, nations composed of men considered as so many free persons, living together in the state of nature, are naturally equal, and receive from nature the same obligations and rights. . . . A dwarf is as much a man as a giant; a small republic is as much a sovereign state as the most powerful kingdom. (M. de Vattel, The Law of Nations; or Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns, 1758. Translated from the French, Vol. I, 1760, p. 6.)

One cardinal rule, underlying all the relations of the States to each other, is that of equality of right. Each State stands on the same level with all the rest. It can impose its own legislation on no one of the others, and is bound to yield its own views to none. Yet, whenever, as in the case of Missouri v. Illinois, 180 U S. 208, the action of one State reaches through the agency of natural laws into the territory of another State, the question of the extent and the limitations of the rights of the two States becomes a matter of justiciable dispute between them, and this court is called upon to settle that dispute in such a way as will recognize the equal rights of both and at the same time establish justice between them. In other words, through these successive disputes and decisions this court is practically building up what may not improperly be called interstate common law. (Mr. Justice Brewer in Kansas v. Colorado, 206 United States, 46, 97-8, decided in 1907.)

CHAPTER XIX

The
Question

of Extent

EXTENT AND EXERCISE OF JUDICIAL POWER

AFTER having considered at some length the nature of judicial power, and the powers of the Supreme Court under the Constitution, we are prepared to take up the question of the extent of judicial power and the manner in which it is to be exercised. The first part of this question need not long detain us, for the Constitution itself has determined the extent of the judicial power of the United States, which can only be enlarged, lessened, or modified by an amendment to the Constitution of the United States. In the second section of Article II it is said:

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.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the 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 will be observed that, in the first of these two paragraphs, all of the cases are enumerated to which the judicial power of the United States shall extend, that in the second paragraph the distinction is drawn between original and appellate jurisdiction of the Supreme Court, leaving the Congress free to vest in the inferior courts which it may establish the other phases of the judicial power; but with the significant proviso that, in all the cases to which the judicial power of the United States extends, with the necessary exception of cases of original jurisdiction, 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 further to be observed that appellate jurisdiction is not confined to cases originating in the inferior courts "as Congress may from time to time

ordain and establish," but that it extends to all cases specified in the grant of power, whether they be begun in a State or Federal court; and that, first and foremost among such cases, are those 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." The Government of the Union is a government of enumerated powers, and therefore of limited jurisdiction; but within the extent of those powers it is supreme, and the propriety or impropriety of its action is to be determined, in the last resort, by the Supreme Court of the States, whose agent it is, not by the States themselves.

The judicial power of the United States is thus, in its entirety, vested in a Federal court, whether it be supreme or inferior. It was proposed and urged in the Federal Convention to vest the courts of the individual States. with jurisdiction and to allow an appeal from the judgments of the State courts to the Supreme Court of the United States, in order to secure uniformity of decision by the use of existing agencies. But the framers of the Constitution decided, wisely, as experience shows, in favor of a judicial agency of the United States as a whole, in preference to the use of a court of any particular State as the common agency of the States.

By the first section of the third article of the Constitution, "The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts" as may be established from time to time by the Congress. In the second section of the same Article this Supreme Court is invested with original jurisdiction "in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party." These were matters of supreme importance, and therefor confided to the Supreme Court if, as will be seen, the beneficiaries chose to consider its jurisdiction exclusive and availed themselves of the Supreme instead of an inferior tribunal. This does not mean that the other cases. to which the judicial power was extended were not important, but that, in the opinion of the framers of the Constitution, they might arise and be decided in inferior tribunals of the State or of the United States, subject to appeal to the Supreme Court in order to correct error and to ensure uniformity of decision. As we are dealing with technical matters, it is well to be technical, and to define the sense in which these terms are used and understood in order to make for comprehension and clearness, even if the terms are so familiar that they seem to carry their own meaning with them. In rendering the opinion of the court in the case of White County Commissioners v. Gwin (136 Indiana Reports, 562, 577), decided in 1893, Mr. Justice McCabe said, on behalf of his brethren:

Court
Defined

The word
"Supreme"

Finality

Jurisdiction

In modern times, and under our form of government, the judicial power is exercised by means of courts. A court is an instrumentality of government. It is a creation of the law, and in some respects it is an imaginary thing, that exists only in legal contemplation, very similar to a corporation. A time when, a place where, and the persons by whom judicial functions are to be exercised, are essential to complete the idea of a court. It is in its organized aspect, with all these constituent elements of time, place, and officers, that completes the idea of a court in the general legal acceptation of the term.

This is the language of a State court, but the idea pervades the United
States as well as the States, and to show its universality the decision of a
State has been chosen in preference to that of a Federal court.

For a like reason, the definition of a supreme court is taken from the opinion of Mr. Justice Dent in the case of Koonce v. Doolittle (48 W. Va. Rep., 592, 594), decided in 1900, who says:

The word "Supreme" meaning highest in the sense of final or last resort. Here all litigation must end, and when this Court has once finally determined a question it has no power to reopen it.

It will be noted that two elements are present and must coexist-finality as regards the litigant and finality as regards the court. That is to say, it is the last court to which the case can be carried, and, when that court has finally decided the case, it has exhausted the judicial power with which it is vested, and, because thereof, it has no power to reopen it.

But something more is needed to complete the idea of a court, whether it be a supreme or inferior tribunal. That idea is contained in the term jurisdiction," which, like the other two, has been admirably defined by a State judge in the case of Munday v. Vail (34 N. J. Law Rep., 418, 422), decided in 1871, in which Mr. Chief Justice Beasley, speaking for his brethren, said:

Jurisdiction may be defined to be the right to adjudicate concerning the subject matter in the given case. To constitute this there are three essentials: First. The court must have cognizance of the class of cases to which the one to be adjudged belongs. Second. The proper parties must be present. And, Third. The point decided must be, in substance and effect, within the sphere, and that its action is void with respect to persons who are strangers to its proceedings, are propositions established by a multitude of authorities.

A matter of fundamental importance in this connection is that a court of limited jurisdiction, as are the Federal courts, Supreme as well as inferior, must, before it entertains a case, decide for itself whether it possesses

of Jurisdiction

jurisdiction, and whether it can lawfully assume and finally decide the case Determination presented to it. In this regard the federal differ from courts of general jurisdictions, in which, it is to be presumed, unless the contrary be shown, that jurisdiction exists, with its necessary consequences. In the opening sentence of his opinion in Cherokee Nation v. Georgia (5 Peters, 1, 31), decided in 1831, Mr. Justice Baldwin said that he had confined his examination of the case to the point of jurisdiction, "as jurisdiction is the first question which must confront us in every case." And, delivering the opinion of the court in the great and leading case of Rhode Island v. Massachusetts (12 Peters, 657, 718), decided seven years later, he had occasion to consider the matter of jurisdiction in detail, inasmuch as Massachusetts objected to the jurisdiction of the Supreme Court in the bill against it filed by Rhode Island and to make clear the distinction, so important in federal courts, between tribunals of general and limited powers. On the first phase of the subject he said:

However late this objection has been made, or may be made in any cause, in an inferior or appellate court of the United States, it must be considered and decided, before any court can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction. Jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them; the question is, whether on the case before a court, their action is judicial or extra-judicial; with or without the authority of law, to render a judgment or decree upon the rights of the litigant parties. If the law confers the power to render a judgment or decree, then the court has jurisdiction; what shall be adjudged or decreed between the parties, and with which is the right of the case, is judicial action, by hearing and determining it.

On the second branch of the question, the learned Justice observed:

A motion to dismiss a cause pending in the courts of the United States, is not analagous to a plea to the jurisdiction of a court of common law or equity in England; there the superior courts have a general jurisdiction. over all persons within the realm, and all causes of action between them. It depends on the subject matter, whether the jurisdiction shall be exercised by a court of law or equity; but that court, to which it appropriately belongs, can act judicially upon the party and the subject of the suit; unless it shall be made apparent to the court that the judicial determination of the case has been withdrawn from the court of general jurisdiction. .

As a denial of jurisdiction over the subject matter of a suit between parties within the realm, over which and whom the court has power to act, cannot be successful in an English court of general jurisdiction; a motion like the present could not be sustained consistently with the principles of its constitution. But as this Court is one of limited and special original jurisdiction, its action must be confined to the particular cases, controversies, and parties over which the constitution and laws have authorized it