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a total exemption from civil and criminal process is not required by the nature of the office, yet a limitation of the general judicial power operating to a certain degree as a national protection, was deemed expedient, and cannot be disapproved.

The legislative provisions that have been made in respect to them, may be considered as founded on the same article in the Constitution. If the law of nations considers them as entitled to protection, offences against them fall within the class of offences against the law of nations.

Cases in which a state shall be a party, originally signified those in which a state was either plaintiff or defendant, as well suits brought by a state against individuals as those by individuals against a state, and also those in which the controversy was between two states; but the Constitution having since been altered,* and a state being no longer liable to a private action, this provision must be confined to the other two cases.

General expressions must always be construed according to the subject. It has been justly decided that the words cases in law or equity, apply as well to criminal as to civil matters, but it cannot be conceived that a state was intended by the Constitution to be able to prosecute in the Supreme Court of the United States one of its own citizens for an offence committed against itself, although it might have the power to institute in that court a suit on a civil contract either between itself and its own citizens, or citizens of another state, or foreigners.

In all other cases, the Supreme Court possesses jurisdiction only by appeal or writ of error ; that is, it may revise and

The eleventh amendment is in these words: “ The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

† 6 Wheaton, p. 399.

correct the proceedings in a cause instituted in an inferior tribunal, but cannot originate a cause ; and the power thus withheld from it by the Constitution cannot be given to it by the legislature. When an instrument organizing a judicial system, divides it into one supreme and so many inferior courts as the legislature may ordain and establish ; then enumerates its powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court, by declaring the cases in which it shall have original jurisdiction, and those in which it shall have appellate jurisdiction, it follows, that in one class its jurisdiction is original and not appellate, and that in the other it is appellate and not original.*

It has already been observed, that it does not rest with congress to give a binding construction to the Constitution. It can neither diminish nor enlarge the powers of the Supreme Court.

By the act of the 24th of September, 1789, congress undertook to vest in the Supreme Court, the power to issue writs of mandamus, in cases warranted by the usages and principles of law, to any courts appointed by, or persons holding office under, the authority of the United States. case which did not come within the description of original jurisdiction, contained in the Constitution, a mandamus was moved for in the supreme court, to be directed to a person holding an office under the authority of the United States, and therefore the case was within the letter and spirit of the act of congress; but the act was, in this respect, clearly held to be unconstitutional and void, and the mandamus was refused. The same act provides, that the supreme court shall have power to issue writs of habeas corpus, where persons are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the

In a

* 1 Cranch, 175, Marbury v. Madison.

† Ibid.


A writ of habeas corpus was moved for, in a case where the prisoner was committed by the circuit court of the District of Columbia, on a charge of treason against the United States. The writ was granted because it amounted only to a revision of the decision of an inferior court of the United States,* and therefore was of an appellate nature,

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In respect to all the other subjects of the judicial power, the original jurisdiction is vested in the inferior tribunals ordained and established by congress, which consist of circuit courts, district courts, and territorial courts. These are all courts of the United States—the judges are appointed by the president --their power is limited to the power which is possessed under the Constitution of the United States and the decisions of them all may be ultimately reviewed, reversed, or affirmed in the supreme court. But congress has undertaken, in some instances, to vest in state courts a power of proceeding for offences committed against the United States, which has produced a question of considerable magnitude, not yet definitively settled. Some of the state courts have refused to exercise this jurisdiction, and there seems much weight in their objections.

The principle on which the judicial power of the Constitution is founded, has already been observed to be, its forming an integral part of the system of government. It was deemed as necessary to keep the judicial powers of the states and the United States separate and distinct, as the legislative and executive powers.

To admit the state courts to a share of the judicial powers of the United States in criminal cases, would tend, it was supposed, not only to break down those barriers which were

deemed important to the self-preservation of the United States, but would produce perplexity and confusion, dangerous to the harmony of both.

The office of congress is to appoint those courts which are to receive the powers vested in the United States, not to grant those powers to the courts. Congress are not the donors, but the mere agents of distribution. Impressions sometimes arise, and consequences often flow from the latter capacity, which do not regularly attend the former. The gratification of making donations cannot be enjoyed by those who are only the agents to distribute, and when not only that which is to be distributed is precisely defined and limited, but those who are exclusively to receive it are exactly described, there seems so little latitude in the power as to excite some surprise that it should have been carried so far. But the motives for it were of the best kind. It was deemed a convenience to individuals to give them a forum as near to their residence as possible: it was also perhaps considered indicative of a confidence in the state governments, and if the Constitution had been accommodated to these principles, this donation of power might have been justifiable, but unless the vesting jurisdiction in a tribunal already ordained and established by a state, can be considered as ordaining and establishing a court by congress, the objections to this well meant measure seem insurmountable.

This is not, however, to be confounded with the legal principles that arise when an act amounts to an offence both against the state and the United States. As congress cannot in one case confer jurisdiction, they cannot in the other abridge it; hence those acts of congress, providing for the punishment of counterfeiting the current coin of the United States,* and forgery of the notes of the bank of the United States, which declared

* Act of April 21, 1806,
+ Acts of February 24, 1807, and April 10, 1816.

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