and the District Judge, except when the District Judge is interested, when it may be held by the Circuit Judge. The number of Circuits is equal to the number of Supreme Judges, and are composed of two or three districts generally, but some of the western states, as Indiana, Illinois, Missouri, &c., have no Circuit Courts.

§ 327. Another court, inferior to the Supreme Court, is the District Court. This is composed of a single judge, who holds annually four terms, and special courts at his discretion. The districts are composed generally of a single state, but sometimes of a part of a state, as in New-York and Pennsylvania.

The judges hold their offices during good behaviour. Any other provision than this would place them at the mercy of the other branches of the government. It is plain that the members of distinct branches of the gov ernment must be wholly independent of the other branches, or the whole would soon become mixed up into one absorbing power. In the state of New-York, sixty is the age at which a judge's office expires, and in Connecticut, seventy. These were both, however, provisions made to answer a temporary and party purpose. They are as anomalous in jurisprudence as they are contrary to the maxims derived from uniform experience. Youth for energy and age for judgment are rules everywhere illustrated in human life. The ablest judges that ever adorned England and America, Mansfield and Marshall, gave their best decisions after the age of seventy.

§ 328. Their compensation shall not be diminished while in office. This is obviously necessary. Life depends upon sustenance, and to take from the judges their salaries would drive them from office.

1 Kent's Comm. 283.

SECTION II.

§ 329. Clause 1. The Judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and 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 grants of different states; and between a state, or the citizens thereof, and foreign states, citizens, or subjects.

The 11th amendment to the Constitution declares, that 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.

§ 330. The jurisdiction of the Supreme Court is here made coextensive with national objects, and independent of other branches of the government. "There is no liberty if the judiciary power be not separated from the legislative and executive powers."1 The Constitution and the laws of the United States are to be construed and adjudged of by the Supreme Court. How could they be adjudged by the State Courts without at once making the States superior to the Union? Yet it must be observed, that the state, as well as the other courts, have the power to construe United States and all other laws, when they come incidentally in question upon the trial of a cause.

§ 331. All matters in relation to treaties, public ministers and consuls, admiralty and maritime jurisdiction,

1 Montesquieu's Esprit de Loix, book 11, chap. 6.

come under the sole cognizance of the Supreme Court. These things belong to the laws of nations; hence, only a national court can sit upon them. The Supreme Court is the national court of the United States, and in this single clause, we see at once the wide distinction placed by the Constitution between the United States' Courts and the State Courts. By this, taken in connexion with the other clauses upon the jurisdiction of the Supreme Court, and the prohibitions upon the states, the Supreme Court is made a national, while the State Courts are merely municipal courts.

§ 332. The next sentence is in perfect conformity to this principle; for if the Supreme Court be national, it is the proper arbiter between the different states, and in relation to all controversies which involve the rights and laws of different states. Accordingly, the Constitution gives the court jurisdiction of controversies between two or more states; between a state and the citizens of other states, or foreign states when the state is not defendant; and between citizens of the same state claiming under grants of different states. The simple reading of these provisions is a sufficient answer to every theory which supposes that the states have sufficient power to annul the laws of the Union. In this article a tribunal is erected superior to all state courts, and by the express direction of the Constitution, a competent arbiter between the states themselves. "There must be some tribunal than which there can be no higher," is an axiom self-evident in all governments which purport to have system and stability; for without it they must become mere anarchies. In the Supreme Court, the Constitution has established that tribunal in the United States, and it is manifest, that within its jurisdiction, pointed out by the Constitution, it is above all others. When we go behind this, there is nothing left but the people,-whose work the Constitution itself is,-but, who cannot be appealed to against their onw laws, till they have first resolved those laws to be a nullity, and

themselves into a state of nature. This is a right which is left to all people of all nations, savage and civilized,

-the right of rebellion,—never to be exercised till sufferance is exhausted. Provision is made, as we shall see hereafter, for amending the Constitution, but this presupposes a constitution, and a government; this amendment then, in the forms prescribed by the Constitution, is not the exercise of that ultimate right we have spoken of above.

§ 333. But, while it is affirmed that the Supreme Court is the ultimate tribunal, it must be borne in mind that the functions of a court are to say what the law is, and not to make it. They are judges, not lawgivers. "The judicial department has no will in any case. Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing."

§ 334. In the clause above the phrase is read "all cases in law or equity." The reference here is plainly to those common law distinctions of law and equity remedies, which before existed in the jurisprudence of England and this country. So far as the remedies go, the Constitution recognises the existence and the operation of the common law. And it would seem, as the reference is direct to the remedy at common law, that the principles upon which the remedy is to be applied must be the same; and such is the interpretation and mode of administering justice in such cases in the courts of the United States. What is a case, as here contemplated? "A case is a suit in law, or equity, instituted according to the regular course of judicial proceedings; and when it involves any question arising under the Constitution, laws, or treaties of the United States, it is within the judicial power confided to the Union."3

1 Osborne vs. Bank United States, 9 Wheaton's Rep. 866. 23 Story's Comm. 506. 3 Id. 507; 1 Tucker's Blk. Comm. App. 418, 420; Madison's Virginia Resolutions, 1800.

L

§ 335. To understand the jurisdiction of the Supreme Court, we must consider the next clause of this section, which is,

2d Clause-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. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and such regulations as the Congress shall make.

§ 336. Jurisdiction may be considered, 1st, With reference to the parties; 2dly, In relation to the subject matter; and 3dly, In respect to the realm or locality.

1st. Jurisdiction in reference to the parties. The parties who come within the jurisdiction of the Supreme are, 1. Ambassadors, public ministers, and consuls; 2. The United States; 3. The States; 4. Citizens of different states; 5. Citizens of the same state; 6. Foreign states, citizens, or subjects.

§ 337. 1. Ambassadors, public ministers, and consuls. The grades of public ministers, and the laws which apply to them, we shall see in another place. The rights, duties, powers, and privileges of public ministers are determined, not by municipal constitutions, but by the law of nature and nations, which is equally obligatory upon all nations. Consuls are not strictly ministers, but merely commercial agents. The Constitution, however, has, in relation to the courts, placed them upon the same level as ministers. In cases against ministers and consuls, the jurisdiction is supposed exclusive.2

The indictments found against persons for offering violence to ministers, &c., and their servants, do not come within the scope of the phrase, affecting ambas sadors, &c. &c. The minister is not a party to the record.3 Yet if he be not a party, the case may be one

1 Chapter on the Practical Operation of the Government. 21 Kent's Comm. 44. 3 3 Story's Comm. 524.