the time of making the Constitution, was essentially within a state.

The completely internal commerce of a state is reserved for the state itself.

The term "among" means intermingled with, and is restricted to that commerce which concerns more states than one. "The power of Congress, then, whatever it may be, must be exercised within the territorial jurisdiction of the several states."

4. What is this power? "It is the power to regulate; that is, to prescribe the rule by which Congress is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution."

5. Can a state regulate commerce with foreign nations and among the states while Congress is regulating it? While the states and the Congress may use the same means in the exercise of their acknowledged respective powers, but the same measures flow from distinct powers. A license to carry on the coasting trade means authority to do so, and a law inconsistent with that license granted by act of Congress is unconstitutional. III. American Insurance Company v. Canter (1 Peters, 511).

This case involved the validity of the tribunal established at Key West, including the legal relation in which that territory and government stood to the United States, and the treaty and war-making powers. The specific question was whether or not admiralty jurisdiction in the territory. of Florida might be exercised by courts whose judges were

appointed for terms of four years. The Constitution vests "the judicial power of the United States" in "one Supreme Court and such inferior courts as the Congress may from time to time establish. The judges both of the Supreme and inferior courts shall hold office during good behavior

Decision of the court.

1. "The Constitution confers absolutely on the government of the Union the powers of making war, and of making treaties; consequently that government possesses the power of acquiring territory, either by conquest or by treaty."

2. The judicial clause of the Constitution does not apply to Florida.

3. The judges of the superior courts of Florida hold office for four years.

4. "These courts are not, then, constitutional courts in which the judicial power conferred by the Constitution on the general government can be deposited."

5. "They are legislative courts, created in virtue of the general right of sovereignty which exists in the government," or by virtue of the territorial clause of the Constitution.

6. "The right to govern may be the inevitable consequence of the right to acquire territory."

7. The jurisdiction with which these legislative courts are invested is not a part of the judicial power of the Constitution, but is conferred by Congress in the exercise of those general powers which the Congress possesses over the territories of the United States.

8. In legislating for the territories, the Congress exercises the combined powers of the general and of a state government.

9. The act of the territorial legislature creating the court in question was held not to be inconsistent with the laws and Constitution of the United States.

READING

BEVERIDGE.-Life of John Marshall, Vol. IV, pp. 142-144, 282-339, 397461.

WARREN.-The Supreme Court in United States History, Vol. I, pp. 498540; Vol. II, pp. 57-92; 160.

JOHNSON.-Readings in American Constitutional History, Nos. 71-76. Cases cited in this section as they appear in the United States Supreme Court Reports or in Thayer's Cases on Constitutional Law.

CHAPTER XXI

THE POWER OF THE SUPREME COURT TO SET ASIDE

ACTS OF CONGRESS

I. Marbury v. Madison (1 Cranch, 137).

Facts. William Marbury had been appointed justice of the peace in the District of Columbia. The appointment the had been confirmed, and the commission was signed and sealed, but President Jefferson instructed that the papers should not be delivered. Marbury sought from the Supreme Court a writ of mandamus to Secretary Madison, who had refused to deliver the commission.

Decision of the court.

1. Has the applicant a right to the commission he demands? The court answered in the affirmative.

2. If. he has a right, and that right has been violated, do the laws of his country afford him a remedy? It was held that a remedy is afforded by the laws.

3. Is he entitled to the remedy for which he applies? This depends on the nature of the writ applied for, and the power of the court. The Judiciary Act of 1789 authorized the Supreme Court "to issue writs of mandamus ... to any courts appointed or persons holding office under the authority of the United States." The power to issue such a writ is not within the original jurisdiction of the Supreme Court as defined under article III, section 2, paragraph 2 of the Constitution. An act of Congress conferring original jurisdiction in

cases not enumerated in the Constitution is repugnant to the instrument.

4. Can a jurisdiction conferred by Congress, not warranted by the Constitution, be exercised? May an act repugnant to the Constitution become the law of the land?

✓

I

a. The people have an original right to establish their fundamental principles of government. Acts emanating from the people are supreme, and the rules established by them permanent.

b. "This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments."

c. Our government is one with limited powers. Legislative powers are defined and limited, and to make them more definite and effective, the Constitution is written.

d. If constitutional limits may at any time be passed by those intended to be restrained, then the doctrine of constitutional limitations is ridiculous. If an act of the legislature is on a level with the Constitution, "then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable."

e. If an act of the legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect?

1. "It is emphatically the province and duty of the judicial department to say what the law is.