limited, but that there are no terms of limitation upon the jurisdiction which it may assume upon appeal, in so far as the Constitution, the treaties and the laws of the United States are concerned, Mr. Justice Story comes to the specific question before him for decision. Thus: As, then, by the terms of the constitution, the appellate jurisdiction is not limited as to the supreme court, and as to this court it may be exercised in all other cases than those of which it has original cognisance, what is there to restrain its exercise over state tribunals, in the enumerated cases? 1 And to this question he gives the following conclusive answer: The appellate power is not limited by the terms of the third article to any particular courts. The words are, “the judicial power (which includes appellate power) shall extend to all cases," &c., and "in all other cases before mentioned the supreme court shall have appellate jurisdiction." It is the case, then, and not the court, that gives the jurisdiction. If the judicial power extends to the case, it will be in vain to search in the letter of the constitution for any qualification as to the tribunal where it depends.2 Examining this phase of the case more closely, he continued: On the other hand, if, as has been contended, a discretion be vested in congress to establish, or not to establish, inferior courts at their own pleasure, and congress should not establish such courts, the appellate jurisdiction of the supreme court would have nothing to act upon, unless it could act upon cases pending in the state courts. Under such circumstances it must be held that the appellate power would extend to state courts; for the constitution is peremptory that it shall extend to certain enumerated cases, which cases could exist in no other courts.3 There was, however, an argument stronger than that based upon the reason of the thing, which Mr. Justice Story thus states in the very next paragraph of his opinion: 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 judg Ibid., 338. Ibid., 339-40. ment. 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." With this statement of the language of the judicial section and of the obligation imposed by the sixth article of the Constitution, Mr. Justice Story might have concluded this portion of his opinion, but he was unwilling to overlook two further reasons, which then, and now, after the experience of a century, are of importance. As to the first reason [to quote Mr. Justice Story's language]-admitting that the judges of the state courts are, and always will be, of as much learning, integrity, and wisdom, as those of the courts of the United States, (which we very cheerfully admit) it does not aid the argument. It is manifest that the constitution has proceeded upon a theory of its own, and given or withheld powers according to the judgment of the American people, by whom it was adopted. We can only construe its powers, and cannot inquire into the policy or principles which induced the grant of them. The constitution has presumed (whether rightly or wrongly we do not inquire), that state attachments, state prejudices, state jealousies, and state interests, might sometimes obstruct, or control, or be supposed to obstruct, or control, the regular administration of justice. Hence, in controversies between. states; between citizens of different states; between citizens claiming grants. under different states; between a state and its citizens, or foreigners, and between citizens and foreigners, it enables the parties, under the authority of congress, to have the controversies heard, tried, and determined before the national tribunals. No other reason than that which has been stated can be assigned, why some, at least, of those cases should not have been left to the cognizance of the state courts. In respect to the other enumerated cases the cases arising under the constitution, laws, and treaties of the United States, cases affecting ambassadors and other public ministers, and cases of admiralty and maritime jurisdiction-reasons of a higher and more extensive nature, touching the safety, peace, and sovereignty of the nation, might well justify a grant of exclusive jurisdiction.1 So much for the first reason; as to the second, Mr. Justice Story said: A motive of another kind, perfectly compatible with the most sincere respect for state tribunals, might induce the grant of appellate power over their decisions. That motive is the importance, and even necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution. Judges of equal learning and integrity, in different states, might differently interpret a statute, or a treaty of the United States, or even the constitution itself: If there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties, and the constitution of the United States would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mischiefs that would attend such a state of 11 Wheaton, 346-7. things would be truly deplorable; and it cannot be believed that they could have escaped the enlightened convention which formed the constitution. What, indeed, might then have been only prophecy, has now become fact; and the appellate jurisdiction must continue to be the only adequate remedy for such evils.1 In Cohens v. Virginia (6 Wheaton, 264), decided in 1821, the same general question arose in a different way and was argued differently, but decided in accordance with the principle of Martin v. Hunter, although the ratio decidendi of the Cohens case differed from that of Martin v. Hunter in that Mr. Chief Justice Marshall instead of Mr. Justice Story delivered the opinion. There was a statute of the State of Virginia forbidding the sale of lottery tickets within the State. There was an act of Congress of May 4, 1812, permitting the drawing of lotteries within the District of Columbia; and the question was, whether this act of Congress could be pleaded as a defense to the law of Virginia forbidding the sale of lottery tickets within the State. From the judgment of the highest court of the State having jurisdiction of the cause of action, the case was removed, by writ of error, to the Supreme Court of the United States, where counsel for defendant moved to dismiss the writ for want of jurisdiction, upon the ground that a State was a defendant, that a writ of error does not lie from the Supreme Court of the United States to a State court, and that the Supreme Court had no jurisdiction of the case because the judgment violated neither the Constitution nor any law of the United States. On the important question as stated, Mr. Chief Justice Marshall said, in delivering the unanimous opinion of the court: The questions presented to the Court by the first two points made at the bar are of great magnitude, and may be truly said vitally to affect the Union. They exclude the inquiry whether the constitution and laws of the United States have been violated by the judgment which the plaintiffs in error seek to review; and maintain that, admitting such violation, it is not in the power of the government to apply a corrective. They maintain that the nation does not possess a department capable of restraining peaceably, and by authority of law, any attempts which may be made, by any part, against the legitimate powers of the whole; and that the government is reduced to the alternative of submitting to such attempts, or of resisting them by force. They maintain that the constitution of the United States has provided no tribunal for the final construction of itself, or of the laws or treaties of the nation; but that this power may be exercised in the last resort by the Courts of every State in the Union. That the constitution, laws, and treaties, may receive as many constructions as there are States; and that this is not a mischief, or, if a mischief, is irremediable.2 1Ibid., 347-8. '6 Wheaton, 376-7. The Liability of States After this statement, the Chief Justice proceeded to discuss the question in which the case before him was to be distinguished in form, though not in substance, from that of Martin v. Hunter, and the conclusion which he reached on this first point is deeply imbedded in the jurisprudence of the United States, and is hardly less familiar than the language of the Constitution, which it interprets. After saying that "jurisdiction is given to the Courts of the Union in two classes of cases," he thus enumerates them: In the first, their jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends "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." This clause extends the jurisdiction of the Court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied against the express words of the article. In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended "controversies between two or more States, between a State and citizens of another State," and "between a State and foreign States, citizens or subjects." If these be the parties, it is entirely unimportant what may be the subject of controversy. what it may, these parties have a constitutional right to come into the Courts of the Union.i To break the force of this statement, counsel for defendant in error contended "that a sovereign, independent State is not suable except by its own consent." Upon which statement, the Chief Justice made the following comment: This general proposition will not be controverted. But its consent is not requisite in each particular case. It may be given in a general law. And if a state has surrendered any portion of its sovereignty, the question whether a liability to suit be a part of this portion, depends on the instrument by which the surrender is made. If, upon a just construction of that instrument, it shall appear that the State has submitted to be sued, then it has parted with the sovereign right of judging in every case on the justice of its own pretentions, and has entrusted that power to a tribunal in whose impartiality it confides.2 After quoting the express provision of the Constitution, extending the judicial power to controversies between two or more States, between citizens of a State and another State, and between citizens of a foreign State, citizens or subjects, the Chief Justice concludes that "the mere circumstance that a State is a party gives jurisdiction to the court," and that "the Con 16 Wheaton, 378. 'Ibid., 380. stitution gave to every person having a claim upon a State a right to submit his case to the Court of the nation." To show the importance of having a case, even although a State be a party, passed upon by the Supreme Court when the Constitution, treaties or laws of the United States be drawn in question, and the decision opposed to the supreme law of the land, the Chief Justice thus reenforces the reasons already advanced by Mr. Justice Story, saying: What power of the government could be executed by its own means, in any State disposed to resist its execution by a course of legislation? The laws must be executed by individuals acting within the several States. If these individuals may be exposed to penalties, and if the Courts of the Union cannot correct the judgments by which these penalties may be enforced, the course of the government may be, at any time, arrested by the will of one of its members. Each member will possess a veto on the will of the whole.1 And again: Different States may entertain different opinions on the true construction of the constitutional powers of Congress. We know, that at one time, the assumption of the debts contracted by the several States, during the war of our revolution, was deemed unconstitutional by some of them. We know, too, that at other times, certain taxes, imposed by Congress, have been pronounced unconstitutional. Other laws have been questioned partially, while they were supported by the great majority of the American people. We have no assurance that we shall be less divided than we have been. States may legislate in conformity to their opinions, and may enforce those opinions by penalties. It would be hazarding too much to assert, that the judicatures of the States will be exempt from the prejudices by which the legislatures and people are influenced, and will constitute perfectly impartial tribunals In many States the judges are dependent for office and for salary on the will of the legislature. The constitution of the United States furnishes no security against the universal adoption of this principle. When we observe the importance which that constitution attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this independence may not exist, in all cases where a State shall prosecute an individual who claims the protection of an act of Congress.2 Taking up another phase of the question involved in the contention, the Chief Justice said: It has been also urged, as an additional objection to the jurisdiction of the Court, that cases between a State and one of its own citizens, do not come within the general scope of the constitution; and were obviously never intended to be made cognizable in the federal Courts. 1 Ibid., 385. |