MARTIN v. HUNTER'S LESSEE
14 U.S. (1 Wheaton) 304
Argued: Decided: March 20, 1816
The original suit was an action of ejectment,
brought by the defendant in error, in one of the district courts of Virginia, holden at Winchester, for the recovery of a parcel of land,
situate within that tract, called the northern neck of Virginia, and part and
parcel thereof. A declaration in ejectment was served (April, 1791) on the
tenants in possession; whereupon Denny Fairfax, (late Denny Martin,) a British
subject, holding the land in question, under the devise of the late Thomas Lord
Fairfax, was admitted to defend the suit, and plead the general issue, upon the
usual terms of confessing lease, entry, and ouster, &c., and agreeing to
insist, at the trial, on the title only, &c. The facts being settled in the
form of a case agreed to be taken and considered as a special verdict, the
court, on consideration thereof, gave judgment (24th of April, 1794) in favour of the defendant in ejectment. From that judgment
the plaintiff in ejectment (now defendant in error) appealed to the court of
appeals, [14 U.S. 304,
307] being the highest court of law of Virginia. At
April term, 1810, the court of appeals reversed the judgment of the district
court, and gave judgment for the then appellant, now defendant in error, and
thereupon the case was removed into this court.
STORY, J., delivered the opinion of the court.
This is a writ of error from the court
of appeals of Virginia, founded upon the refusal of that court to obey the
mandate of this court, requiring the judgment rendered in this very cause, at
February term, 1813, to be carried into due execution. The following is the
judgment of the court of appeals rendered on the mandate: 'The court is
unanimously of opinion, that the appellate power of the supreme court of the
United States does not extend to this court, under a sound construction of the
constitution of the United States; that so much of the 25th section of the act
of congress to establish the judicial courts of the United States, as extends
the appellate jurisdiction of the supreme court to this court, is not in
pursuance of the constitution of the [14 U.S. 304, 324] United States; that the writ of error, in this cause, was improvidently
allowed under the authority of that act; that the proceedings thereon in the
supreme court were, coram non judice,
in relation to this court, and that obedience to its mandate be declined by the
court.'
The questions involved in this
judgment are of great importance and delicacy. Perhaps it is not too much to
affirm, that, upon their right decision, rest some of the most solid principles
which have hitherto been supposed to sustain and protect the constitution
itself. The great respectability, too, of the court whose decisions we are
called upon to review, and the entire deference which we entertain for the
learning and ability of that court, add much to the difficulty of the task
which has so unwelcomely fallen upon us. It is, however, a source of consolation,
that we have had the assistance of most able and learned arguments to aid our
inquiries; and that the opinion which is now to be pronounced has been weighed
with every solicitude to come to a correct result, and
matured after solemn deliberation.
Before proceeding to the principal
questions, it may not be unfit to dispose of some preliminary considerations
which have grown out of the arguments at the bar.
The constitution of the United States
was ordained and established, not by the states in their sovereign capacities,
but emphatically, as the preamble of the constitution declares, by 'the people
of the United States.' There can be no doubt that it was competent to the
people to invest the general government [14 U.S. 304, 325] with all the powers which they might deem
proper and necessary; to extend or restrain these powers according to their own
good pleasure, and to give them a paramount and supreme authority. As little
doubt can there be, that the people had a right to prohibit to the states the
exercise of any powers which were, in their judgment, incompatible with the
objects of the general compact; to make the powers of the state governments, in
given cases, subordinate to those of the nation, or to reserve to themselves
those sovereign authorities which they might not choose to delegate to either.
The constitution was not, therefore, necessarily carved out of existing state
sovereignties, nor a surrender of powers already existing in state
institutions, for the powers of the states depend upon their own constitutions;
and the people of every state had the right to modify and restrain them,
according to their own views of the policy or principle. On the other hand, it
is perfectly clear that the sovereign powers vested in the state governments,
by their respective constitutions, remained unaltered and unimpaired, except so
far as they were granted to the government of the United States.
These deductions do not rest upon
general reasoning, plain and obvious as they seem to be. They have been positively
recognised by one of the articles in amendment of the
constitution, which declares, that 'the powers not delegated to the United
States by the constitution, nor prohibited by it to the states, are reserved to
the states respectively, or to the people.' [14 U.S. 304, 326] The government, then, of the United States, can
claim no powers which are not granted to it by the constitution, and the powers
actually granted, must be such as are expressly given, or given by necessary
implication. On the other hand, this instrument, like every other grant, is to
have a reasonable construction, according to the import of its terms; and where
a power is expressly given in general terms, it is not to be restrained to
particular cases, unless that construction grow out of
the context expressly, or by necessary implication. The words are to be taken
in their natural and obvious sense, and not in a sense unreasonably restricted
or enlarged.
The constitution unavoidably deals in
general language. It did not suit the purposes of the people, in framing this
great charter of our liberties, to provide for minute specifications of its
powers, or to declare the means by which those powers should be carried into
execution. It was foreseen that this would be a perilous and difficult, if not
an impracticable, task. The instrument was not intended to provide merely for
the exigencies of a few years, but was to endure through a long lapse of ages,
the events of which were locked up in the inscrutable purposes of Providence.
It could not be foreseen what new changes and modifications of power might be
indispensable to effectuate the general objects of the charter; and
restrictions and specifications, which, at the present, might seem salutary,
might, in the end, prove the overthrow of the system itself. Hence its powers
are expressed in general terms, leaving to the legislature, from time to [14 U.S.
304, 327] time, to adopt its own means to
effectuate legitimate objects, and to mould and model
the exercise of its powers, as its own wisdom, and the public interests, should
require.
With these principles in view,
principles in respect to which no difference of opinion ought to be indulged,
let us now proceed to the interpretation of the constitution, so far as regards
the great points in controversy.
The third article of the constitution
is that which must principally attract our attention. The 1st. section
declares, 'the judicial power of the United States shall be vested in one
supreme court, and in such other inferior courts as the congress may, from time
to time, ordain and establish.' The 2d section declares, that 'the judicial
power shall extend to all cases in law or equity, arising under this
constitution, the laws of the United States, and the 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 the grants of different states; and between a
state or the citizens thereof, and foreign states, citizens, or subjects.' It
then proceeds to declare, 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. [14 U.S.
304, 328] 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.'
Such is the language of the article
creating and defining the judicial power of the United States. It is the voice
of the whole American people solemnly declared, in establishing one great
department of that government which was, in many respects, national, and in
all, supreme. It is a part of the very same instrument which was to act not
merely upon individuals, but upon states; and to deprive them altogether of the
exercise of some powers of sovereignty, and to restrain and regulate them in
the exercise of others.
Let this article be carefully weighed
and considered. The language of the article throughout is manifestly designed
to be mandatory upon the legislature. Its obligatory force is so imperative,
that congress could not, without a violation of its duty, have refused to carry
it into operation. The judicial power of the United States shall be vested (not
may be vested) in one supreme court, and in such inferior courts as congress
may, from time to time, ordain and establish. Could congress have lawfully
refused to create a supreme court, or to vest in it the constitutional jurisdiction?
'The judges, both of the supreme and inferior courts, shall hold their offices
during good behaviour, and shall, at stated times,
receive, for their services, a compensation which shall not be diminished
during their continuance in office.' Could congress create or limit any other
tenure of [14 U.S. 304, 329] the judicial
office? Could they refuse to pay, at stated times, the stipulated salary, or
diminish it during the continuance in office? But one answer can be given to
these questions: it must be in the negative. The object of the constitution was
to establish three great departments of government; the legislative, the
executive, and the judicial departments. The first was to pass laws, the second
to approve and execute them, and the third to expound and enforce them. Without
the latter, it would be impossible to carry into effect some of the express
provisions of the constitution. How, otherwise, could crimes against the United
States be tried and punished? How could causes between two states be heard and
determined? The judicial power must, therefore, be vested in some court, by
congress; and to suppose that it was not an obligation binding on them, but
might, at their pleasure, be omited or declined, is
to suppose that, under the sanction of the constitution, they might defeat the
constitution itself; a construction which would lead to such a result cannot be
sound.
The same expression, 'shall be
vested,' occurs in other parts of the constitution, in defining the powers of
the other co-ordinate branches of the government. The first article declares
that 'all legislative powers herein granted shall be vested in a congress of
the United States.' Will it be contended that the legislative power is not
absolutely vested? that the words merely refer to some future act, and mean
only that the legislative power may bereafter be
vested? The second article declares that 'the [14 U.S.
304, 330] executive power shall be vested in a
president of the United States of America.' Could congress vest it in any other
person; or, is it to await their good pleasure, whether it is to vest at all?
It is apparent that such a construction, in either case, would be utterly
inadmissible. Why, then, is it entitled to a better support in reference to the
judicial department?
If, then, it is a duty of congress to
vest the judicial power of the United States, it is a duty to vest the whole
judicial power. The language, if imperative as to one part, is imperative as to
all. If it were otherwise, this anomaly would exist, that congress might
successively refuse to vest the jurisdiction in any one class of cases
enumerated in the constitution, and thereby defeat the jurisdiction as to all;
for the constitution has not singled out any class on which congress are bound
to act in preference to others.
The next consideration is as to the
courts in which the judicial power shall be vested. It is manifest that a
supreme court must be established; but whether it be equally obligatory to
establish inferior courts, is a question of some difficulty. If congress may
lawfully omit to establish inferior courts, it might follow, that in some of
the enumerated cases the judicial power could nowhere exist. The supreme court
can have original jurisdiction in two classes of cases only, viz. in cases
affecting ambassadors, other public ministers and consuls, and in cases in
which a state is a party. Congress cannot vest any portion of the judicial
power of the United States, except in courts ordained and established by [14 U.S.
304, 331] itself; and if in any of the cases
enumerated in the constitution, the state courts did not then possess
jurisdiction, the appellate jurisdiction of the supreme court (admitting that
it could act on state courts) could not reach those cases, and, consequently,
the injunction of the constitution, that the judicial power 'shall be vested,'
would be disobeyed. It would seem, therefore, to follow, that congress are bound to create some inferior courts, in which to vest
all that jurisdiction which, under the constitution, is exclusively vested in
the United States, and of which the supreme court cannot take original
cognizance. They might establish one or more inferior courts; they might parcel
out the jurisdiction among such courts, from time to time, at their own pleasure.
But the whole judicial power of the United States should be, at all times,
vested either in an original or appellate form, in some courts created under
its authority.
This construction will be fortified by
an attentive examination of the second section of the third article. The words
are 'the judicial power shall extend,' &c. Much minute and elaborate
criticism has been employed upon these words. It has been argued that they are
equivalent to the words 'may extend,' and that 'extend' means to widen to new
cases not before within the scope of the power. For the reason which have been
already stated, we are of opinion that the words are used in an imperative
sense. They import an absolute grant of judicial power. They cannot have a
relative signification applicable to powers already granted; for the American people[14 U.S. 304,
332] had not made any previous grant. The
constitution was for a new government, organized with new substantive powers,
and not a mere supplementary charter to a government already existing. The
confederation was a compact between states; and its structure and powers were
wholly unlike those of the national government. The constitution was an act of
the people of the United States to supersede the confederation, and not to be
ingrafted on it, as a stock through which it was to receive life and
nourishment.
If, indeed, the relative signification
could be fixed upon the term 'extend,' it could not (as we shall hereafter see)
subserve the purposes of the argument in support of
which it has been adduced. This imperative sense of the words 'shall extend,'
is strengthened by the context. It is declared that 'in all cases affecting
ambassadors, &c., that the supreme court shall have original jurisdiction.'
Could congress withhold original jurisdiction in these cases from the supreme
court? The clause proceeds- '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.' The
very exception here shows that the framers of the constitution used the words
in an imperative sense. What necessity could there exist for this exception if
the preceding words were not used in that sense? Without such exception,
congress would, by the preceding words, have possessed a complete power to
regulate the appellate jurisdiction, if the language were [14 U.S.
304, 333] only equivalent to the words 'may
have' appellate jurisdiction. It is apparent, then, that the exception was intended
as a limitation upon the preceding words, to enable congress to regulate and
restrain the appellate power, as the public interests might, from time to time,
require.
Other clauses in the constitution
might be brought in aid of this construction; but a minute examination of them
cannot be necessary, and would occupy too much time. It will be found that
whenever a particular object is to be effected, the language of the
constitution is always imperative, and cannot be disregarded without violating the
first principles of public duty. On the other hand, the legislative powers are
given in language which implies discretion, as from the nature of legislative
power such a discretion must ever be exercised.
It being, then, established that the
language of this clause is imperative, the next question is as to the cases to
which it shall apply. The answer is found in the constitution itself. The
judicial power shall extend to all the cases enumerated in the constitution. As
the mode is not limited, it may extend to all such cases, in any form, in which
judicial power may be exercised. It may, therefore, extend to them in the shape
of original or appellate jurisdiction, or both; for there is nothing in the
nature of the ases which binds to the exercise of the
one in preference to the other.
In what cases (if any) is this
judicial power exclusive, or exclusive at the election of congress? It will be
observed that there are two classes of cases enumerated [14 U.S.
304, 334] in the constitution, between which a distinction
seems to be drawn. The first class includes cases arising under the
constitution, laws, and treaties of the United States; cases affecting
ambassadors, other public ministers and consuls, and cases of admiralty and
maritime jurisdiction. In this class the expression is, and that the judicial
power shall extend to all cases; but in the subsequent part of the clause which
embraces all the other cases of national cognizance, and forms the second
class, the word 'all' is dropped seemingly ex industria.
Here the judicial authority is to extend to controversies (not to all
controversies) to which the United States shall be a party, &c. From this
difference of phraseology, perhaps, a difference of constitutional intention
may, with propriety, be inferred. It is hardly to be presumed that the
variation in the language could have been accidental. It must have been the
result of some determinate reason; and it is not very difficult to find a
reason sufficient to support the apparent change of intention. In respect to
the first class, it may well have been the intention of the framers of the
constitution imperatively to extend the judicial power either in an original or
appellate form to all cases; and in the latter class to leave it to congress to
qualify the jurisdiction, original or appellate, in such manner as public
policy might dictate.
The vital importance of all the cases
enumerated in the first class to the national sovereignty, might warrant such a
distinction. In the first place, as to cases arriving under the constitution,
laws, and treaties of the United States. Here the state courts [14 U.S.
304, 335] could not ordinarily possess a direct
jurisdiction. The jurisdiction over such cases could not exist in the state
courts previous to the adoption of the constitution, and it could not
afterwards be directly conferred on them; for the constitution expressly
requires the judicial power to be vested in courts ordained and established by
the United States. This class of cases would embrace civil as well as criminal
jurisdiction, and affect not only our internal policy, but our foreign
relations. It would, therefore, be perilous to restrain it in any manner
whatsoever, inasmuch as it might hazard the national safety. The same remarks
may be urged as to cases affecting ambassadors, other public ministers, and
consuls, who are emphatically placed under the guardianship of the law of
nations; and as to cases of admiralty and maritime jurisdiction, the admiralty
jurisdiction embraces all questions of prize and salvage, in the correct
adjudication of which foreign nations are deeply interested; it embraces also
maritime torts, contracts, and offences, in which the principles of the law and
comity of nations often form an essential inquiry. All these cases, then, enter
into the national policy, affect the national rights, and may compromit the national sovereignty. The original or
appellate jurisdiction ought not, therefore, to be restrained, but should be
commensurate with the mischiefs intended to be remedied, and, of course, should
extend to all cases whatsoever.
A different policy might well be
adopted in reference to the second class of cases; for although it might be fit
that the judicial power should extend [14 U.S. 304, 336] to all controversies to which the United States
should be a party, yet this power night not have been imperatively given, least
it should imply a right to take cognizance of original suits brought against
the United States as defendants in their own courts. It might not have been deemed
proper to submit the sovereignty of the United States, against their own will
to judicial cognizance, either to enforce rights or to prevent wrongs; and as
to the other cases of the second class, they might well be left to be exercised
under the exceptions and regulations which congress might, in their wisdom,
choose to apply. It is also worthy of remark, that congress seem, in a good
degree, in the establishment of the present judicial system, to have adopted
this distinction. In the first class of cases, the jurisdiction is not limited
except by the subject matter; in the second, it is made materially to depend
upon the value in controversy.
We do not, however, profess to place
any implicit reliance upon the distinction which has here been stated and endeavoured to be illustrated. It has the rather been
brought into view in deference to the legislative opinion, which has so long
acted upon, and enforced, this distinction. But there is, certainly, vast
weight in the argument which has been urged, that the constitution is
imperative upon congress to vest all the judicial power of the United States,
in the shape of original jurisdiction, in the supreme and inferior courts
created under its own authority. At all events, whether the one construction or
the other prevail, it is manifest that the judicial power of the [14 U.S.
304, 337] United States is unavoidably, in some
cases, exclusive of all state authority, and in all others, may be made so at
the election of congress. No part of the criminal jurisdiction of the United
States can, consistently with the constitution, be delegated to state
tribunals. The admiralty and maritime jurisdiction is of the same exclusive
cognizance; and it can only be in those cases where, previous to the
constitution, state tribunals possessed jurisdiction independent of national
authority, that they can now constitutionally exercise a concurrent
jurisdiction. Congress, throughout the judicial act, and particularly in the
9th, 11th, and 13th sections, have legislated upon the supposition that in all
the cases to which the judicial powers of the United States extended, they
might rightfully vest exclusive jurisdiction in their own courts.
But, even admitting that the language
of the constitution is not mandatory, and that congress may constitutionally
omit to vest the judicial power in courts of the United States, it cannot be demed that when it is vested, it may be exercised to the
utmost constitutional extent.
This leads us to the consideration of
the great question as to the nature and extent of the appellate jurisdiction of
the United States. We have already seen that appellate jurisdiction is given by
the constitution to the supreme court in all cases where it has not original
jurisdiction; subject, however, to such exceptions and regulations as congress
may prescribe. It is, therefore, capable of embracing every case enumerated in
the constitution, which is not exclusively to be decided by way of
original [14 U.S. 304, 338] jurisdiction.
But the exercise of appellate jurisdiction is far from being limited by the
terms of the constitution to the supreme court. There can be no doubt that
congress may create a succession of inferior tribunals, in each of which it may
vest appellate as well as original jurisdiction. The judicial power is
delegated by the constitution in the most general terms, and may, therefore, be
exercised by congress under every variety of form, of appellate or original
jurisdiction. And as there is nothing in the constitution which restrains or
limits this power, it must, therefore, in all other cases, subsist in the
utmost latitude of which, in its own nature, it is susceptible.
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 cognizance, what is there to restrain its exercise
over state tribunals in the enumerated cases? 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. It is incumbent, then, upon those who assert
such a qualification to show its existence by necessary implication. If
the [14 U.S. 304, 339] text be clear
and distinct, no restriction upon its plain and obvious import ought to be
admitted, unless the inference be irresistible.
If the constitution meant to limit the
appellate jurisdiction to cases pending in the courts of the United States, it
would necessarily follow that the jurisdiction of these courts would, in all
the cases enumerated in the constitution, be exclusive of state tribunals. How
otherwise could the jurisdiction extend to all cases arising under the
constitution, laws, and treaties of the United States, or to all cases of
admiralty and maritime jurisdiction? If some of these cases might be
entertained by state tribunals, and no appellate jurisdiction as to them should
exist, then the appellate power would not extend to all, but to some, cases. If
state tribunals might exercise concurrent jurisdiction over all or some of the
other classes of cases in the constitution without control, then the appellate
jurisdiction of the United States might, as to such cases, have no real
existence, contrary to the manifest intent of the constitution. Under such
circumstances, to give effect to the judicial power, it must be construed to be
exclusive; and this not only when the casus foederis
should arise directly, but when it should arise, incidentally, in cases pending
in state courts. This construction would abridge the jurisdiction of such court
far more than has been ever contemplated in any act of congress.
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 [14 U.S.
304, 340] 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. Any other
construction, upon this supposition, would involve this strange contradiction,
that a discretionary power vested in congress, and which they might rightfully
omit to exercise, would defeat the absolute injunctions of the constitution in
relation to the whole appellate power.
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 judgment. They were not to decide
merely [14 U.S. 304, 341] 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.'
A moment's consideration will show us
the necessity and propriety of this provision in cases where the jurisdiction
of the state courts is unquestionable. Suppose a contract for the payment of
money is made between citizens of the same state, and performance thereof is
sought in the courts of that state; no person can doubt that the jurisdiction
completely and exclusively attaches, in the first instance, to such courts.
Suppose at the trial the defendant sets up in his defence
a tender under a state law, making paper money a good tender, or a state law,
impairing the obligation of such contract, which law, if binding, would defeat
the suit. The constitution of the United States has declared that no state
shall make any thing but gold or silver coin a tender
in payment of debts, or pass a law impairing the obligation of contracts. If congress
shall not have passed a law providing for the removal of such a suit to the
courts of the United States, must not the state court proceed to hear and
determine it? Can a mere plea in defence be of itself
a bar to further proceedings, so as to prohibit an inquiry into its truth or
legal propriety, when no other tribunal exists to whom judicial cognizance of
such cases is confided? Suppose an indictment for a crime in a state court, and
the defendant should allege in his defence that the
crime was created by an ex post facto act of the state, must not the state
court, in the exercise of a jurisdiction which has already rightfully attached,
have a [14 U.S. 304, 342] right to
pronounce on the validity and sufficiency of the defence?
It would be extremely difficult, upon any legal principles, to give a negative
answer to these inquiries. Innumerable instances of the same sort might be
stated, in illustration of the position; and unless the state courts could
sustain jurisdiction in such cases, this clause of the sixth article would be
without meaning or effect, and public mischiefs, of a most enormous magnitude,
would inevitably ensue.
It must, therefore, be conceded that
the constitution not only contemplated, but meant to provide for cases within
the scope of the judicial power of the United States, which might yet depend
before state tribunals. It was foreseen that in the exercise of their ordinary
jurisdiction, state courts would incidentally take cognizance of cases arising
under the constitution, the laws, and treaties of the United States. Yet to all
these cases the judicial power, by the very terms of the constitution, is to
extend. It cannot extend by original jurisdiction if that was already
rightfully and exclusively attached in the state courts, which (as has been
already shown) may occur; it must, therefore, extend by appellate jurisdiction,
or not at all. It would seem to follow that the appellate power of the United
States must, in such cases, extend to state tribunals; and if in such cases, there
is no reason why it should not equally attach upon all others within the
purview of the constitution.
It has been argued that such an
appellate jurisdiction over state courts is inconsistent with the genius [14 U.S.
304, 343] of our governments, and the spirit of
the constitution. That the latter was never designed to act upon state
sovereignties, but only upon the people, and that if the power exists, it will
materially impair the sovereignty of the states, and the independence of their
courts. We cannot yield to the force of this reasoning; it assumes principles
which we cannot admit, and draws conclusions to which we do not yield our
assent.
It is a mistake that the constitution
was not designed to operate upon states, in their corporate capacities. It is
crowded with provisions which restrain or annul the sovereignty of the states
in some of the highest branches of their prerogatives. The tenth section of the
first article contains a long list of disabilities and prohibitions imposed
upon the states. Surely, when such essential portions of state sovereignty are
taken away, or prohibited to be exercised, it cannot be correctly asserted that
the constitution does not act upon the states. The language of the constitution
is also imperative upon the states as to the performance of many duties. It is
imperative upon the state legislatures to make laws prescribing the time,
places, and manner of holding elections for senators and representatives, and
for electors of president and vice-president. And in these, as well as some
other cases, congress have a right to revise, amend, or supercede
the laws which may be passed by state legislatures. When, therefore, the states
are stripped of some of the highest attributes of sovereignty, and the same are
given to the United States; when the legislatures of the states are, in
some [14 U.S. 304, 344] respects,
under the control of congress, and in every case are, under the constitution,
bound by the paramount authority of the United States; it is certainly
difficult to support the argument that the appellate power over the decisions
of state courts is contrary to the genius of our institutions. The courts of
the United States can, without question, revise the proceedings of the
executive and legislative authorities of the states, and if they are found to
be contrary to the constitution, may declare them to be of no legal validity.
Surely the exercise of the same right over judicial tribunals is not a higher
or more dangerous act of sovereign power.
Nor can such a right be deemed to
impair the independence of state judges. It is assuming the very ground in
controversy to assert that they possess an absolute independence of the United
States. In respect to the powers granted to the United States, they are not
independent; they are expressly bound to obedience by the letter of the
constitution; and if they should unintentionally transcend their authority, or
misconstrue the constitution, there is no more reason for giving their
judgments an absolute and irresistible force, than for giving it to the acts of
the other co-ordinate departments of state sovereignty.
The argument urged from the
possibility of the abuse of the revising power, is equally unsatisfactory. It
is always a doubtful course, to argue against the use or existence of a power,
from the possibility of its abuse. It is still more difficult, by such an
argument, to ingraft upon a general power a restriction [14 U.S.
304, 345] which is not to be found in the terms in
which it is given. From the very nature of things, the absolute right of
decision, in the last resort, must rest somewhere-wherever it may be vested it
is susceptible of abuse. In all questions of jurisdiction
the inferior, or appellate court, must pronounce the final judgment; and common
sense, as well as legal reasoning, has conferred it upon the latter.
It has been further argued against the
existence of this appellate power, that it would form a novelty in our judicial
institutions. This is certainly a mistake. In the articles of confederation, an
instrument framed with infinitely more deference to state rights and state
jealousies, a power was given to congress to establish 'courts for revising and
determining, finally, appeals in all cases of captures.' It is remarkable, that
no power was given to entertain original jurisdiction in such cases; and,
consequently, the appellate power (although not so expressed in terms) was
altogether to be exercised in revising the decisions of state tribunals. This
was, undoubtedly, so far a surrender of state sovereignty; but it never was
supposed to be a power fraught with public danger, or destructive of the
independence of state judges. On the contrary, it was supposed to be a power
indispensable to the public safety, inasmuch as our national rights might otherwise
be compromitted, and our national peace been dangered.
Under the present constitution the prize jurisdiction is confined to the courts
of the United States; and a power to revise the decisions of state courts, if
they should assert jurisdiction over prize causes, cannot be less [14 U.S.
304, 346] important, or less useful, than it was
under the confederation.
In this connexion
we are led again to the construction of the words of the constitution, 'the
judicial power shall extend,' &c. If, as has been contended at the bar, the
term 'extend' have a relative signification, and mean to widen an existing
power, it will then follow, that, as the confederation gave an appellate power
over state tribunals, the constitution enlarged or widened that appellate power
to all the other cases in which jurisdiction is given to the courts of the
United States. It is not presumed that the learned counsel would choose to
adopt such a conclusion.
It is further argued, that no great
public mischief can result from a construction which shall limit the appellate
power of the United States to cases in their own courts: first, because state
judges are bound by an oath to support the constitution of the United States,
and must be presumed to be men of learning and integrity; and, secondly,
because congress must have an unquestionable right to remove all cases within
the scope of the judicial power from the state courts to the courts of the
United States, at any time before final judgment, thought
not after final judgment. As to the first reason-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 [14 U.S.
304, 347] 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 some times 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 Ieast,
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.
This is not all. 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 [14 U.S. 304, 348] 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 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.
There is an additional consideration,
which is entitled to great weight. The constitution of the United States was
designed for the common and equal benefit of all the people of the United
States. The judicial power was granted for the same benign and salutary
purposes. It was not to be exercised exclusively for the benefit of parties who
might be plaintiffs, and would elect the national forum, but also for the
protection of defendants who might be entitled to try their rights, or assert
their priviliges, before the same forum. Yet, if the
construction contended for be correct, it will follow, that as the plaintiff
may always elect the state court, the defendant [14 U.S.
304, 349] may be deprived of all the security
which the constitution intended in aid of his rights. Such a state of things
can, in no respect, be considered as giving equal rights. To obviate this
difficulty, we are referred to the power which it is admitted congress possess
to remove suits from state courts to the national courts; and this forms the
second ground upon which the argument we are considering has been attempted to
be sustained.
This power of removal is not to be
found in express terms in any part of the constitution; if it be given, it is
only given by implication, as a power necessary and proper to carry into effect
some express power. The power of removal is certainly not, in strictness of
language; it presupposes an exercise of original jurisdiction to have attached
elsewhere. The existence of this power of removal is familiar in courts acting
according to the course of the common law in criminal as well as civil cases,
and it is exercised before as well as after judgment. But this is always deemed
in both cases an exercise of appellate, and not of original jurisdiction. If,
then, the fight of removal be included in the appellate jurisdiction, it is
only because it is one mode of exercising that power, and as congress is not
limited by the constitution to any particular mode, or time of exercising it,
it may authorize a removal either before or after judgment. The time, the
process, and the manner, must be subject to its absolute legislative control. A
writ of error is, indeed, but a process which removes the record of one court
to the possession of another court, [14 U.S. 304, 350] and enables the latter to inspect the proceedings,
and give such judgment as its own opinion of the law and justice of the case
may warrant. There is nothing in the nature of the process which forbids it
from being applied by the legislature to interlocutory as well as final
judgments. And if the right of removal from state courts exist before judgment,
because it is included in the appellate power, it must, for the same reason,
exist after judgment. And if the appellate power by the constitution does not
include cases pending in state courts, the right of removal, which is but a mode
of exercising that power, cannot be applied to them. Precisely the same
objections, therefore, exist as to the rignt of
removal before judgment, as after, and both must stand or fall together. Nor,
indeed, would the force of the arguments on either side materially vary, if the
right of removal were an exercise of original jurisdiction. It would equally
trench upon the jurisdiction and independence of state tribunals.
The remedy, too, of removal of suits
would be utterly inadequate to the purposes of the constitution, if it could
act only on the parties, and not upon the state courts. In respect to criminal
prosecutions, the difficulty seems admitted to be insurmountable; and in
respect to civil suits, there would, in many cases, be rights without corresponding
remedies. If state courts should deny the constitutionality of the authority to
remove suits from their cognizance, in what manner could they be compelled to
relinquish the jurisdiction? In respect to criminal cases, there would at once
be an end of all control, and the [14 U.S. 304, 351] state decisions would be paramount to the
constitution; and though in civil suits the courts of the United States might
act upon the parties, yet the state courts might act in the same way; and this
conflict of jurisdictions would not only jeopardise
private rights, but bring into imminent peril the public interests.
On the whole, the court
are of opinion, that the appellate power of the United States does extend to
cases pending in the state courts; and that the 25th section of the judiciary
act, which authorizes the exercise of this jurisdiction in the specified cases,
by a writ of error, is supported by the letter and spirit of the constitution.
We find no clause in that instrument which limits this power; and we dare not
interpose a limitation where the people have not been disposed to create one.
Strong as this conclusion stands upon
the general language of the constitution, it may still derive support from
other sources. It is an historical fact, that this exposition of the
constitution, extending its appellate power to state courts, was, previous to
its adoption, uniformly and publicly avowed by its friends, and admitted by its
enemies, as the basis of their respective reasonings, both in and out of the
state conventions. It is an historical fact, that at the time when the
judiciary act was submitted to the deliberations of the first congress,
composed, as it was, not only of men of great learning and ability, but of men
who had acted a principal part in framing, supporting, or opposing that
constitution, the same exposition was explicitly declared and admitted by the
friends and by the opponents of that system. It [14 U.S.
304, 352] 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
has ever breathed a judicial doubt on the subject, or declined to obey the
mandate of the supreme court, until the present occasion. 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, do, as we think, place the doctrine upon a foundation of authority
which cannot be shaken, without delivering over the subject to perpetual and
irremediable doubts.
The next question which has been
argued, is, whether the case at bar be within the purview of the 25th section
of the judiciary act, so that this court may rightfully sustain the present
writ of error. This section, stripped of passages unimportant in this inquiry,
enacts, in substance, that a final judgment or decree in any suit in the
highest court of law or equity of a state, where is drawn in question the
validity of a treaty or statute of, or an authority excised under, the United
States, and the decision is against their validity; or where is drawn in
question the validity of a statute of, or an authority exercised under, any
state, on the ground of their being repugnant to the constitution, treaties, or
laws, of the United States, and the decision is in favour
of such their validity; or of the constitution, or of a treaty or statute of,
or commission held under, the United [14 U.S. 304, 353] States, and the decision is against the title,
right, privilege, or exemption, specially set up or claimed by either party
under such clause of the said constitution, treaty, statute, or commission, may
be re- examined and reversed or affirmed in the supreme court of the United
States, upon a writ of error, in the same manner, and under the same
regulations, and the writ shall have the same effect, as if the judgment or
decree complained of had been rendered or passed in a circuit court, and the
proceeding upon the reversal shall also be the same, except that the supreme
court, instead of remanding the cause for a final decision, as before provided,
may, at their discretion, if the cause shall have been once remanded before,
proceed to a final decision of the same, and award execution. But no other
error shall be assigned or regarded as a ground of reversal in any such case as
aforesaid, than such as appears upon the face of the
record, and immediately respects the before-mentioned question of validity or
construction of the said constitution, treaties, statutes, commissions, or
authorities in dispute.
That the present writ of error is
founded upon a judgment of the court below, which drew in question and denied
the validity of a statute of the United States, is incontrovertible, for it is
apparent upon the face of the record. That this judgment is final upon the
rights of the parties is equally true; for if well founded, the former judgment
of that court was of conclusive authority, and the former judgment of this
court utterly void. The decision was, therefore, equivalent to a perpetual stay
of proceedings upon [14 U.S. 304, 354] the mandate,
and a perpetual denial of all the rights acquired under it. The case, then, falls
directly within the terms of the act. It is a final judgment in a suit in a
state court, denying the validity of a statute of the United States; and unless
a distinction can be made between proceedings under a mandate, and proceedings
in an original suit, a writ of error is the proper remedy to revise that
judgment. In our opinion no legal distinction exists between the cases.
In causes remanded to the circuit
courts, if the mandate be not correctly executed, a writ of error or appeal has
always been supposed to be a proper remedy, and has been recognized as such in
the former decisions of this court. The statute gives the same effect to writs
of error from the judgments of state courts as of the circuit courts; and in
its terms provides for proceedings where the same cause may be a second time
brought up on writ of error before the supreme court. There is no limitation or
description of the cases to which the second writ of error may be applied; and
it ought, therefore, to be coextensive with the cases which fall within the
mischiefs of the statute. It will hardly be denied that this cause stands in
that predicament; and if so, then the appellate jurisdiction of this court has
rightfully attached.
But it is contended, that the former
judgment of this court was rendered upon a case not within the purview of this
section of the judicial act, and that as it was pronounced by an incompetent
jurisdiction, it was utterly void, and cannot be a sufficient foundation [14 U.S.
304, 355] to sustain any subsequent proceedings.
To this argument several answers may be given. In the first place, it is not
admitted that, upon this writ of error, the former record is before us. The
error now assigned is not in the former proceedings, but in the judgment rendered
upon the mandate issued after the former judgment. The question now litigated
is not upon the construction of a treaty, but upon the constitutionality of a
statute of the United States, which is clearly within our jurisdiction. In the
next place, in ordinary cases a second writ of error has never been supposed to
draw in question the propriety of the first judgment, and it is difficult to
perceive how such a proceeding could be sustained upon principle. A final
judgment of this court is supposed to be conclusive upon the rights which it
decides, and no statute has provided any process by which this court can revise
its own judgments. In several cases which have been formerly adjudged in this
court, the same point was argued by counsel, and expressly overruled. It was
solemnly held that a final judgment of this court was conclusive upon the
parties, and could not be re-examined.
In this case, however, from motives of
a public nature, we are entirely willing to wave all objections, and to go back
and re-examine the question of jurisdiction as it stood upon the record
formerly in judgment. We have great confidence that our jurisdiction will, on a
careful examination, stand confirmed as well upon principle as authority. It
will be recollected that the action was an ejectment for a parcel of land in
the Northern Neck, formerly belonging to [14 U.S. 304, 356] Lord Fairfax. The original plaintiff claimed the
land under a patent granted to him by the state of Virginia, in 1789, under a
title supposed to be vested in that state by escheat or forfeiture. The
original defendant claimed the land as devisee under the will of Lord Fairfax.
The parties agreed to a special statement of facts in the nature of a special
verdict, upon which the district court of Winchester, in 1793, gave a general
judgment for the defendant, which judgment was afterwards reversed in 1810, by
the court of appeals, and a general judgment was rendered for the plaintiff;
and from this last judgment a writ of error was brought to the supreme court.
The statement of facts contained a regular deduction of the title of Lord
Fairfax until his death, in 1781, and also the title of his devisee. It also
contained a regular deduction of the title of the plaintiff, under the state of
Virginia, and further referred to the treaty of peace of 1783, and to the acts
of Virginia respecting the lands of Lord Fairfax, and the supposed escheat or
forfeiture thereof, as component parts of the case. No facts disconnected with
the titles thus set up by the parties were alleged on either side. It is
apparent, from this summary explanation, that the title thus set up by the
plaintiff might be open to other objections; but the title of the defendant was
perfect and complete, if it was protected by the treaty of 1783. If, therefore,
this court had authority to examine into the whole record, and to decide upon
the legal validity of the title of the defendant, as well as its application to
the treaty of peace, it would be a case within the express purview [14 U.S.
304, 357] of the 25th section of the act; for
there was nothing in the record upon which the court below could have decided
but upon the title as connected with the treaty; and if the title was otherwise
good, its sufficiency must have depended altogether upon its protection under
the treaty. Under such circumstances it was strictly a suit where was drawn in
question the construction of a treaty, and the decision was against the title
specially set up or claimed by the defendant. It would fall, then, within the
very terms of the act.
The objection urged at the bar is,
that this court cannot inquire into the title, but simply into the correctness
of the construction put upon the treaty by the court of appeals; and that their
judgment is not re- examinable here, unless it appear on the face of the record
that some construction was put upon the treaty. If, therefore, that court might
have decided the case upon the invalidity of the title, (and, non constat, that they did not,) independent of the treaty,
there is an end of the appellate jurisdiction of this court. In support of this
objection much stress is laid upon the last clause of the section, which
declares, that no other cause shall be regarded as a ground of reversal than
such as appears on the face of the record and immediately respects the
construction of the treaty, &c., in dispute.
If this be the true construction of
the section, it will be wholly inadequate for the purposes which it professes
to have in view, and may be evaded at pleasure. But we see no reason for
adopting this narrow construction; and there are the strongest [14 U.S.
304, 358] reasons against it, founded upon the
words as well as the intent of the legislature. What is the case for which the
body of the section provides a remedy by writ of error? The answer must be in
the words of the section, a suit where is drawn in question the construction of
a treaty, and the decision is against the title set up by the party. It is,
therefore, the decision against the title set up with reference to the treaty,
and not the mere abstract construction of the treaty itself, upon which the
statute intends to found the appellate jurisdiction. How, indeed, can it be
possible to decide whether a title be within the protection of a treaty, until
it is ascertained what that title is, and whether it have a legal validity?
From the very necessity of the case, there must be a preliminary inquiry into
the existence and structure of the title, before the court can construe the
treaty in reference to that title. If the court below should decide, that the
title was bad, and, therefore, not protected by the treaty, must not this court
have a power to decide the title to be good, and, therefore, protected by the
treaty? Is not the treaty, in both instances, equally construed, and the title
of the party, in reference to the treaty, equally ascertained and decided? Nor
does the clause relied on in the objection, impugn this construction. It
requires, that the error upon which the appellate court is to decide, shall
appear on the face of the record, and immediately respect the questions before
mentioned in the section. One of the questions is as to the construction of a
treaty upon a title specially set up by a party, and every error that
immediately respects [14 U.S. 304, 359] that question
must, of course, be within the cognizance, of the court. The title set up in
this case is apparent upon the face of the record, and immediately respects the
decision of that question; any error, therefore, in respect to that title must
be re-examinable, or the case could never be presented to the court.
The restraining clause was manifestly
intended for a very different purpose. It was foreseen that the parties might
claim under various titles, and might assert various defences,
altogether independent of each other. The court might admit or reject evidence
applicable to one particular title, and not to all, and in such cases it was
the intention of congress to limit what would otherwise have unquestionably
attached to the court, the right of revising all the points involved in the
cause. It therefore restrains this right to such errors as respect the
questions specified in the section; and in this view, it has an appropriate
sense, consistent with the preceding clauses. We are, therefore, satisfied,
that, upon principle, the case was rightfully before us, and if the point were
perfectly new, we should not hesitate to assert the jurisdiction.
But the point has been already decided
by this court upon solemn argument. In Smith
v. The State of Maryland, (6 Cranch, 286.,)
precisely the same objection was taken by counsel, and overruled by the
unanimous opinion of the court. That case was, in some respects, stronger than
the present; for the court below decided, expressly, that the party had no
title, and, therefore, the treaty could not operate [14 U.S.
304, 360] upon it. This court entered into an
examination of that question, and being of the same opinion, affirmed the
judgment. There cannot, then, be an authority which could more completely
govern the present question.
It has been asserted at the bar that,
in point of fact, the court of appeals did not decide either upon the treaty or
the title apparent upon the record, but upon a compromise made under an act of
the legislature of Virginia. If it be true (as we are informed) that this was a
private act, to take effect only upon a certain condition, viz. the execution
of a deed of release of certain lands, which was matter in pais,
it is somewhat difficult to understand how the court could take judicial cognizance
of the act, or of the performance of the condition, unless spread upon the
record. At all events, we are bound to consider that the court did decide upon
the facts actually before them. The treaty of peace was not necessary to have
been stated, for it was the supreme law of the land, of which all courts must
take notice. And at the time of the decision in the court of appeals and in
this court, another treaty had intervened, which attached itself to the title
in controversy, and, of course, must have been the supreme law to govern the
decision, if it should be found applicable to the case. It was in this view
that this court did not deem it necessary to rest its former decision upon the
treaty of peace, believing that the title of the defendant was, at all events,
perfect under the treaty of 1794. [14 U.S. 304, 361] The remaining questions respect more the practice
than the principles of this court. The forms of process, and the modes of
proceeding in the exercise of jurisdiction are, with few exceptions, left by
the legislature to be regulated and changed as this court may, in its
discretion, deem expendient. By a rule of this court,
the return of a copy of a record of the proper court, under the seal of that
court, annexed to the writ of error, is declared to be 'a sufficient compliance
with the mandate of the writ.' The record, in this case, is duly certified by
the clerk of the court of appeals, and annexed to the writ of error. The
objection, therefore, which has been urged to the sufficiency of the return,
cannot prevail.
Another objection is, that it does not
appear that the judge who granted the writ of error did, upon issuing the
citation, take the bond required by the 22d section of the judiciary act.
We consider that provision as merely directory
to the judge; and that an omission does not avoid the writ of error. If any
party be prejudiced by the omission, this court can grant him summary relief,
by imposing such terms on the other party as, under all the circumstances, may
be legal and proper. But there is nothing in the record by which we can
judicially know whether a bond has been taken or not; for the statute does not
require the bond to be returned to this court, and it might, with equal
propriety, be lodged in the court below, who would ordinarily execute the
judgment to be rendered on the writ. And the presumption of law is, until the
contrary [14 U.S. 304, 362] appears, that
every judge who signs a citation has obeyed the injunctions of the act.
We have thus gone over all the principal
questions in the cause, and we deliver our judgment with entire confidence,
that it is consistent with the constitution and laws of the land.
We have not thought it incumbent on us
to give any opinion upon the question, whether this court have authority to
issue a writ of mandamus to the court of appeals to enforce the former
judgments, as we do not think it necessarily involved in the decision of this
cause.
It is the opinion of the whole court,
that the judgment of the court of appeals of Virginia, rendered on the mandate
in this cause, be reversed, and the judgment of the district court, held at
Winchester, be, and the same is hereby affirmed.
JOHNSON, J.
It will be observed in this case, that
the court disavows all intention to decide on the right to issue compulsory
process to the state courts; thus leaving us, in my opinion, where the
constitution and laws place us-supreme over persons and cases as far as our
judicial powers extend, but not asserting any compulsory control over the state
tribunals.
In this view I acquiesce in their
opinion, but not altogether in the reasoning, or opinion, of my brother who
delivered it.