by the opponents of that system. It is an historical fact, that the Supreme Court of the United States have, from time to time, sustained this appellate jurisdiction, in a great variety of cases, brought from the tribunals of many of the most important States in the Union; and that no State tribunal ever breathed a judicial doubt on the subject, or declined to obey the mandate of the Supreme Court, until a comparatively recent period. This weight of contemporaneous exposition, by all parties, this acquiescence of enlightened State courts, and these judicial decisions of the Supreme Court, through so long a period, places the doctrine upon a foundation of authority, which cannot be shaken, without delivering over the subject to perpetual, and irremediable doubts.

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§ 374. It would be difficult, and perhaps not desirable, to lay down any general rules in relation to the cases, in which the judicial power of the courts of the United States is exclusive of the State courts, or in which it may be made so by Congress, until they shall be settled by some positive adjudication of the Supreme Court. That there are some cases, in which that power is exclusive, cannot well be doubted; that there are others, in which it may be made so by Congress, admits of as little doubt and that, in other cases, it is concurrent in the State courts, at least until Congress shall have passed some act, excluding the concurrent jurisdiction, will scarcely be denied. It seems to be admitted, that the jurisdiction of the courts of the United States is, or at least may be, made exclusive in all cases arising under the Constitution, laws, and treaties, of the United States; in all cases affecting ambassadors, other public ministers, and consuls; in all cases of admiralty and maritime jurisdiction, (which are exclusive in their character;) in controversies, to which the United States shall be a party; in controversies between two or more States; in controversies between a State and citizens of another State; and in controversies between a State and foreign States, citizens, or subjects. And it is only in those cases, where, previous to the constitution, State tribunals possessed jurisdiction, independent of National authority, that they can now con

§ 375. In the exercise of the jurisdiction confided respectively to the State courts, and those courts of the United States, (where the latter have not appellate jurisdiction,) it is plain, that neither can have any right to interfere with, or control, the operations of the other. It has accordingly been settled, that no State court can issue an injunction upon any judgement in a court of the United States; the latter having an exclusive authority over its own judgements and proceedings. Nor can any State court, or any State legislature, annul the judgements of the courts of the United States, or destroy the rights acquired under them; nor in any manner deprive the Supreme Court of its appellate jurisdiction; nor in any manner interfere with, or control, the process (whether mesne or final) of the courts of the United States; nor prescribe the rules or forms of proceeding; nor affect a process in the courts of the United States; nor issue a mandamus to an officer of the United States, to compel him to perform duties, devolved on him by the laws of the United States. And, although writs of habeas corpus have been issued by State judges, and State courts, in cases where the party has been in custody, under the authority of process of the courts of the United States, there has been considerable diversity of opinion, whether such an exercise of authority is constitutional; and it yet remains to be decided, whether it can be maintained.

§ 376. On the other hand, the National courts have no authority (in cases not within the appellate jurisdiction of the United States) to issue injunctions to judgements in the State courts; or in any other manner to interfere with their jurisdiction or proceedings.

§ 377. Having disposed of these points, we may again recur to the language of the Constitution, for the purpose of some further illustrations. The language is, that "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."

§ 378. In the first place, it may not be without use to ascertain, what is here meant by appellate jurisdiction;

essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. In reference to judicial tribunals, an appellate jurisdiction, therefore, necessarily implies, that the subject matter has been already instituted in, and acted upon by, some other court, whose judgement or proceedings are to be revised. This appellate jurisdiction may be exercised in a variety of forms, and indeed in any form, which the Legislature may choose to prescribe; but, still, the substance must exist, before the form can be applied to it. To operate at all, then, under the Constitution of the United States, it is not sufficient, that there has been a decision by some officer, or Department, of the United States; but it must be by one clothed with judicial authority, and acting in a judicial capacity. A power, therefore, conferred by Congress on the Supreme Court, to issue a mandamus to public officers of the United States generally, is not warranted by the Constitution; for it is, in effect, under such circumstances, an exercise of original jurisdiction. But where the object is to revise a judicial proceeding, the mode is wholly immaterial; and a writ of habeas corpus, or of mandamus, a writ of error, or an appeal, may be used, as the Legislature may prescribe.

§ 379. The most usual modes of exercising appellate jurisdiction, at least, those, which are most known in the United States, are, by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin, and removes a cause entirely, subjecting the fact, as well as the law, to a review and a re-trial. A writ of error is a process of common law origin; and it removes nothing for re-examination, but the law. The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury.

§ 380. It is observable, that the language of the Constitution is, that "the Supreme Court shall have appellate jurisdiction, both as to law and fact." This provision was a subject of no small alarm and misconstruction at the

posed to confer on the Supreme Court, in the exercise of its appellate jurisdiction, the power to review the decision of a jury in mere matters of fact; and thus, in effect, to destroy the validity of their verdict, and to reduce to a mere form, the right of a trial by jury in civil cases. The objection was at once seized hold of by the enemies of the Constitution; and it was pressed with an urgency and zeal, which were well nigh preventing its ratification. There is certainly some foundation, in the ambiguity of the language, to justify an interpretation, that such a review might constitutionally be within the reach of the appellate power, if Congress should choose to carry it to that extreme latitude. But, practically speaking, there was not the slightest danger, that Congress would ever adopt such a course, even if it were within their constitutional authority; since it would be at variance with all the habits, feelings, and institutions, of the whole country. At least, it might be affirmed, that Congress would scarcely take such a step, until the people were prepared to surrender all the great securities of their civil, as well as of their political rights and liberties; and in such an event, the retaining of the trial by jury would be a mere mockery. The real object of the provision was, to retain the power of reviewing the fact, as well as the law, in cases of equity, and of admiralty, and maritime jurisdiction. And the manner, in which it is expressed, was probably occasioned by the desire to avoid the introduction of the subject of a trial by jury, in civil cases, upon which the Convention were greatly divided in opinion.

§ 381. These views, however reasonable they may seem to considerate minds, did not wholly satisfy the popular opinion; and as the objection had a vast influence upon public opinion, and amendments were proposed by various State conventions on this subject, Congress, at its first session, under the guidance of the friends of the Constitution, proposed an amendment, which was ratified by the people, and is now incorporated into the Constitution. It is in these words: "In suits at common law, where the value in controversy shall exceed twenty dollars, the

tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law." This amendment completely struck down the objection; and has secured the right of a trial by jury, in civil cases, in the fullest latitude of the common law. It is a most important and valuable amendment; and places upon the high ground of constitutional right, the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all persons to be essential to political and civil liberty.

§ 382. The appellate jurisdiction is to be, "with such exceptions, and under such regulations, as the Congress shall prescribe." But, here, a question is presented upon the construction of the Constitution, whether the appellate jurisdiction attaches to the Supreme Court, subject to be withdrawn and modified by Congress; or, whether an act of Congress is necessary to confer the jurisdiction upon the court. the court. If the former be the true construction, then the entire appellate jurisdiction, if Congress should make no exceptions or regulations, would attach, by force of the terms, to the Supreme Court. If the latter, then, notwithstanding the imperative language of the Constitution, the Supreme Court is lifeless, until Congress have conferred power on it. And if Congress may confer power, they may repeal it. So that the whole efficiency of the judicial power is left by the Constitution wholly unprotected and inert, if Congress shall refrain to act. There is certainly very strong ground to maintain, that the language of the Constitution meant to confer the appellate jurisdiction absolutely on the Supreme Court, independent of any action by Congress; and to require this action to divest or regulate it. The language, as to the original jurisdiction of the Supreme Court, admits of no doubt. It confers it without any action of Congress. Why should not the same language, as to the appellate jurisdiction, have the same interpretation? It leaves the power of Congress complete, to make exceptions and regulations; but it leaves nothing to their inaction. This