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In the first, their jurisdiction depended on the character of the cause, whoever might be the parties; and, in the second, it depended entirely on the character of the parties, and it was unimportant what might be the subject of controversy. The general government, though limited as to its objects, was supreme with respect to those objects. It was supreme in all cases in which it was empowered to act. A case arising under the constitution and laws of the Union, was cognizable in the courts of the Union, whoever might be the parties to that case. The sovereignty of the states was limited, or surrendered, in many cases, where there was no other power conferred on Congress than a constructive power to maintain the principles established in the constitution. One of the instruments by which that duty might be peaceably performed, was the judicial department. It was authorized to decide all cases of every description, arising under the constitution, laws, and treaties of the Union; and from this general grant of jurisdiction, no exception is made of those cases in which a state may be a party. It was likewise a political axiom, that the judicial power of every well constituted government, must be coextensive with the legislative power, and must be capable of deciding every judicial question which grows out of the constitution and laws. The most mischievous consequences would follow, from the absence of appellate jurisdiction over a state court where a state was a party, for it would prostrate the government and laws of the Union at the feet of every state. The powers of the government could not be executed by its own means, in any state disposed to resist its execution by a course of legislation. If the courts of the Union could not correct the judgments of the state courts, inflicting penalties under state laws, upon individuals executing the laws of the Union, each member of the confederacy would possess a veto on the will of the whole. No government ought to be so defective in its organization, as not to contain within itself the means of securing the execution of its own laws. If

each state was left at liberty to put its own construction upon the constitutional powers of Congress, and to legislate in conformity to its own opinion, and enforce its opinion by penalties, and to resist or defeat, in the form of law, the legitimate measures of the Union, it would destroy the constitution, or reduce it to the imbecility of the old confederation. To prevent such mischief and ruin, the constitution of the United States, most wisely and most clearly, conferred on the judicial department the power of construing the constitution and laws in every case, and of preserving them from all violation from every quarter, so far as judicial decisions could preserve them.

The case before the court was one in which jurisdiction depended upon the character of the cause, as it was a case arising under the law of the Union. It was not an ordinary case of a controversy between a state and one of its citizens, for there the jurisdiction would depend upon the character of the parties. The court concluded, that the appellate power did extend to the case, though a state was a party, because it was a case touching the validity of an act of Congress, and the decision of the state court was against its validity; and in all cases arising under the constitution, laws, and treaties of the Union, the jurisdiction of the court may be exercised in an appellate form, though a state be a party.

The court observed, that the amendment to the constitution, declaring that the judicial power was not to be construed to extend to any suit in law or equity commenced or prosecuted against a state by individuals, did not apply to a writ of error, which was not a suit against a state, within the meaning of the constitution; and the jurisdiction of the Supreme Court, in cases arising under the constitution, laws and treaties of the Union, may be exercised by a writ of error brought upon the judgment of a state court. The United States are one nation and one people, as to all cases and powers given by the constitution, and the judicial power VOL. I.

42

must be competent not only to decide on the validity of the constitution or law of a state, if it be repugnant to the constitution or to a law of the United States, but also to decide on the judgment of a state tribunal enforcing such unconstitutional law. The federal courts must either possess exclusive jurisdiction in all cases affecting the constitution, and laws, and treaties of the Union, or they must have power to revise the judgments rendered on them by the state tribunals. If the several state courts had final jurisdiction over the same cases, arising upon the same laws, it would be a hydra in government, from which nothing but contradiction and confusion could proceed. Nothing can be plainer than the proposition, that the Supreme Court of the nation must have power to revise the decisions of local tribunals on questions which affect the nation, or the most important ends of the government might be defeated, and we should be no longer one nation for any efficient purpose. The doctrine would go to destroy the great fundamental principles on which the fabric of the Union stands.

We have now finished the review of the most important points that have arisen in the jurisprudence of the United States, on the subject of the original and appellate jurisdiction of the Supreme Court. So far as the powers of that court, under the constitution, and under the 25th section of the judiciary act of 1789, have been drawn in question, they have been maintained with great success, and with an equal display of dignity and discretion.

a In Williams v. Norris, and Montgomery v. Hernandez, 12 Wheaton, 117. 129. under the 25th section of the judiciary act of 1789, ch. 20. it was held, that the Supreme Court has no appellate jurisdiction, unless the decision in the state court be against the right or title set up by the party under the constitution or statute of the United States, and the title depended thereon; or unless the decision be in favour of a state law, when its validity was questioned, as repugnant to the constitution of the United States, and the right of the party depended upon the state law.

LECTURE XVI.

OF THE JURISDICTION OF THE FEDERAL COURTS, IN RE-
SPECT TO THE COMMON LAW, AND IN RESPECT TO PAR-
TIES.

(I.) IT has been a subject of much discussion, whether the courts of the United States have a common law jurisdiction, and, if any, to what extent.

Courts have

common

minal cases.

In the case of the United States v. Worrall, in the Cir- The U. S. cuit Court at Philadelphia, the defendant was indicted and no law jurisdicconvicted of an attempt to bribe the commissioner of the tion in enrevenue; and it was contended, on the motion in arrest of judgment, that the court had no jurisdiction of the case, because all the judicial authority of the federal courts was derived, either from the constitution, or the acts of Congress made in pursuance of it, and an attempt to bribe the commissioner of the revenue was not a violation of any constitutional or legislative prohibition. Whenever Congress shall think any provision by law necessary to carry into effect the constitutional powers of the government, it was said, they may establish it, and then a violation of its sanctions will come within the jurisdiction of the Circuit Courts, which have exclusive cognizance of all crimes and offences cognizable under the authority of the United States. Congress had provided by law for the punishment of various crimes, and even for the punishment of bribery itself, in the case of a judge, an officer of the customs, or an officer of the excise; but, in the case of the commissioner of the revenue, the act of Congress did not create or declare the

a 2 Dallas, 384.

offence. The question then fairly and directly presented itself, what was there to render it an offence arising under the constitution or laws of the United States, and cognizable under their authority? A case arising under a law, must mean, a case depending on the exposition of a law, in respect to something which the law prohibits or enjoins; and if it were sufficient, in order to vest a jurisdiction to try a crime, or sustain an action, that a federal officer was concerned and affected by the act, a source of jurisdiction would be opened which would destroy all the barriers between the judicial authorities of the states and the general government. Though an attempt to bribe a public officer be an offence at common law, the constitution of the United States contains no reference to a common law authority. Every power in the constitution was matter of definite and positive grant, and the very powers that were granted could not take effect until they were exercised through the medium of a law. Though Congress had the power to make a law which would render it criminal to offer a bribe to the commissioner of the revenue, they had not done it, and the crime was not recognised either by the legislative or constitutional code of the Union.

In answer to this view of the subject, it was observed, that the offence was within the terms of the constitution, for it arose under a law of the United States, and was an attempt by bribery to obstruct or prevent the execution of the laws of the Union. If the commissioner of the revenue had accepted the bribe, he would have been indictable in the courts of the United States; and, upon principles of analogy, the offence of the person who tempted it must be equally cognizable in those courts. The prosecution against Henfield, for serving on board a French privateer against the Dutch, was the exercise of a common law power, applied to an offence against the law of nations, and a breach of a treaty, which provided no specific penalty for such a case.

The court were divided in opinion on this question. In the opinion of the circuit judge, an indictment at common

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