substitute or deputy; but to guard against any inconvenience which might arise from the operation of this principle, and to prevent the mischiefs of a vacancy in office, the act establishing the judicial courts has provided, that in case of the death of the marshal, his deputies shall continue in office, unless otherwise especially removed, and shall execute the same in the name of the deceased marshal, until another marshal shall be appointed and sworn. So, a marshal, when removed from office, or his term of office expires, may still execute all process in his hands, and he remains responsible for his prisoners until they are duly delivered over to his successor. (c) And with respect to the custody of the prisoners, under the law of the United States, the marshal is directed to deliver his prisoners to the keeper of one of the jails of the state in which he is marshal, in cases where the legislature of the state, in conformity with the recommendation of Congress, have made it the duty of the jailers to receive them; but where they have not, the marshal, under the direction of the district judge, is to provide his own place of security. (d)

(c) Ib. sec. 28; [Doolittle v. Bryan, 14 How. 568; Stewart v. Hamilton, 4 McLean 534; United States v. Bank of Arkansas, Hempst. 460.]

(d) Resolutions of Congress, September 23, 1789, and March 3, 1791. See also the act of Congress of January 6, 1800, and 1 Paine, 368. The marshal is bound to take from the prisoner under United States process a bond for the limits, as in the case for prisoners under state process.

[ 361]

LECTURE XV.

OF THE ORIGINAL AND APPELLATE JURISDICTION OF THE

SUPREME COURT.

HAVING taken a general view of the great departments of the government of the United States, I proceed to a more precise examination of its powers and duties, and of the degree of subordination under which the state governments are constitutionally placed.

The Constitution of the United States is an instrument containing the grant of specific powers, and the government of the Union cannot claim any powers but what are contained in the grant, and given either expressly, or by necessary implication.1 The powers vested in the state governments by their respective constitutions, or remaining with the people of the several states prior to the establishment of the Constitution of the United States, continue unaltered and unimpaired, except so far as they are granted to the United States. We are to ascertain the true construction of the Constitution, and the precise extent of the residuary authorities of the several states, by the declared sense and practice of the governments respectively, when there is no collision; and in all other cases where the question is of a judicial nature, we are to ascertain it by the decisions of the Supreme Court of the United States; and those decisions ought to be studied and universally understood, in respect to all the leading questions of constitutional law. (a) The people of the United States have declared the Constitution to be the supreme law of the land, and it is entitled to universal and implicit obedience. Every act of Congress, and every act of the legislatures of the

states, and every part of the constitution of any state, *314 which are repugnant to the Constitution of the United States, are necessarily void. This is a clear and settled.

(a) Vide supra, 243.

1 But compare Legal Tender Cases, 12 Wall. 457, ante, 254, n. 1.

principle of constitutional jurisprudence. The judicial power of the Union is declared to extend to all cases in law and cquity arising under the Constitution; and to the judicial power it belongs, whenever a case is judicially before it, to determine what is the law of the land. The determination of the Supreme Court of the United States, in every such case, must be final and conclusive, because the Constitution gives to that tribunal the power to decide, and gives no appeal from the decision.

With respect to the judicial power, it may be generally observed, as the Supreme Court declared, in the case of Turner v. The Bank of North America, (a) that the disposal of the judicial power, except in a few specified cases, belongs to Congress; and the courts cannot exercise jurisdiction in every case to which the judicial power extends, without the intervention of Congress, who are not bound to enlarge the jurisdiction of the federal courts to every subject which the Constitution might warrant. So, again, it has been decided, (b) that Congress has not delegated the exercise of judicial power to the circuit courts, but in certain specific cases. Both the Constitution and an act of Congress must concur in conferring power upon the circuit courts. A considerable portion of the judicial power, placed at the disposal of Congress by the Constitution, has been intentionally permitted to lie dormant, by not being called into action by law. (c) The 11th section of the Judiciary Act of 1789, giving jurisdiction to the circuit courts, has not covered the whole ground of the Constitution, and those courts cannot, for instance, issue a mandamus, but in those cases in which it may be necessary to the exercise of their jurisdiction. (d)

1. Its Original Jurisdiction. The original jurisdiction of the Supreme Court is very limited, and it has been decided that Congress has no power to extend it. (e)1 It is confined by the

(a) 4 Dallas, 8.

(b) M'Intire v. Wood, 7 Cranch, 504; Livingston v. Van Ingen, 1 Paine, 45; United States v. Hudson & Goodwin, 7 Cranch, 32; United States v. Bevans, 3 Wheaton, 336.

(c) Conkling's Treatise, 2d ed. 68.

(d) Smith v. Jackson, 1 Paine, 453; [Bath County v. Amy, 13 Wall. 244.] (e) Marbury v. Madison, 1 Cranch, 137.

1 Ex parte Vallandigham, 1 Wall. 243, 252; Ex parte Yerger, 8 Wall, 85, 98; The Alicia, 7 Wall. 571. On the other

hand, since the act of 1789, in all cases where original jurisdiction is given by the Constitution, the court has authority to

Constitution to those cases which affect ambassadors, other public ministers and consuls, and to those in which a state is *315 a party; (f) and *it has been made a question, whether

this original jurisdiction of the Supreme Court was intended by the Constitution to be exclusive. The Judiciary Act of 1789 seems to have considered it to be competent for Congress to vest concurrent jurisdiction, in those specified cases, in other courts; for it gave a concurrent jurisdiction, in some of those cases, to the circuit courts. (a) In the case of the United States v. Ravara, (b) this point arose in the Circuit Court for Pennsylvania district, and it was held that Congress could vest a concurrent jurisdiction in other courts, of those very cases over which the Supreme Court had original jurisdiction; and that the word "original" was not to be taken to imply exclusive cognizance of the cases enumerated. But the opinion of the Supreme Court of the United States, in Marbury v. Madison, (c) goes far towards establishing the principle of exclusive jurisdiction in the Supreme Court in all those cases of original jurisdiction. This last case was considered, in Pennsylvania v. Kosloff, (d) as shaking the decision in the case of Ravara; and yet the question was still left in doubt by the Supreme Court, in the case of the United States v. Ortega, (e) and a decision upon it was purposely waived. (ƒ)1

Admitting this original jurisdiction of the Supreme Court may be shared by other courts in the discretion of Congress, it has been decided, as we shall presently see, that this original jurisdiction cannot be enlarged, and that the Supreme Court cannot

(ƒ) Art. 3, sec. 2.

(b) 2 Dallas, 297.

(d) 5 Serg. & Rawle, 545.

(a) Act of Congress, September 24, 1789, sec. 13. (c) 1 Cranch, 137.

(e) 11 Wheaton, 467.

(f) In the official opinion of the Attorney-General of the United States, in 1797, it was held that the Supreme Court of the United States had no criminal jurisdiction, until given by statute, and that it was capable of having it conferred by law in the case of ambassadors, &c., as in the case of libels, &c. Op. Att.-Gen. i. 42.

exercise it without any further act of Congress to regulate its process or confer jurisdiction. Kentucky v. Dennison, 24 How. 66, 98.

See, as to cases in which a state is a party, post, 323, n. 1.

In the case of a suit which was brought in the Circuit Court against a foreign consul, and which failed on other grounds, it

was laid down by Nelson, J., that the jurisdiction of the Supreme Court was not exclusive. Graham v. Stucken, 4 Blatchf. 50; St. Luke's Hospital v. Barclay, 3 Blatchf. 259; Lorway v. Lousada, 1 Lowell, 77, 1 Am. L. Rev. 92; Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 563, 579.

1 Ante, 314, n. 1.

be vested, even by Congress, with any original jurisdiction in other cases than those described in the Constitution. It is the appellate jurisdiction of the Supreme Court that clothes it with most of its dignity and efficacy, and renders it a constant object of attention and solicitude on the part of the *316 governments and the people of the several states. (a)

2. Its Appellate Jurisdiction in Cases pending in State Courts. The Supreme Court has appellate jurisdiction, in certain cases, over final decisions in the state courts, but it has no power to review its own decisions, either at law or in equity. (b) 1

(a) The Imperial Chamber and the Aulic Council in the Germanic Constitution were tribunals of appellate jurisdiction only. It was the original law of Germany, that no man could be sued, except in the state or province to which he belonged. Hallam on the Middle Ages, i. 371, 372.

(b) Washington Bridge Company v. Stewart, 3 How. 413; [Schell v. Dodge, 107 U. S. 629.]