Section 25 of the Judiciary Act of may purport to confer that jurisdiction on the Supreme Court, but that provision was unconstitutional.
Marshall and Roane were the dominant personalities on their respective courts. Their lives intersected at numerous points. They were both members of the fledgling Phi Beta Kappa Society there. Both married into politically-connected Virginia families, though Roane did better, by marrying the eldest daughter of his boyhood idol and later political mentor, Patrick Henry.
They both led political factions in Virginia. Roane was the more influential, in that he was the boss of a political machine, the Richmond Junto , which included some cousins and powerful agrarian republican politicians like Senator John Taylor of Caroline and Congressman John Randolph of Roanoke.
Both jurists moved their respective courts away from deciding cases ad seriatim in the style of English courts, where each judge announced his opinion separately, to a unified—and, if at all possible, unanimous—opinion for the court written by a single judge. Eventually they became uneasy neighbors in downtown Richmond for several years. Of more fateful consequence was their competition for a seat on the Supreme Court.
Jefferson wanted to appoint Roane, a missed chance Jefferson is said to have regretted the rest of his life. In Martin , Roane argued that the Constitution was founded on dual sovereignty and did not create a consolidated union. Moreover, while Article VI, Section 2, obligated state judges to uphold the Constitution, laws, and treaties of the United States even against conflicting provisions of state law, they were bound as judges of the sovereign state of Virginia, not as functionaries of the general government.
Not a word in the Constitution authorized the general government to be the final judge of its legislative or judicial powers. Nor was there anything that prohibited the state courts from being the final judges of the validity of state laws. He began with a textual analysis. Article III, Section 2, of the Constitution defines the federal judicial power, including the appellate jurisdiction of the Supreme Court.
Section 25, too, expressly allows for review of such state cases, and no constitutional objections were raised when it was enacted shortly after the Constitution was adopted. For the Constitution, he quoted The Federalist No. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the State tribunals….
The evident aim of the plan of the national convention is that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the Courts of the Union. They are members of one great empire. This did not, ipso facto, turn state courts into mere instruments of the federal government.
Their existence was still connected to the state sovereignties, and they still decided cases of state law over which the federal courts had no control. Here, the Cohens had not sued Virginia. The state could not simultaneously prosecute the Cohens and claim immunity from suit when they fought back. Let us suppose one of the most glaring violations of the constitution; a bill of attainder of ex post facto law, for example, passed by a State; and that the State judiciary proceeds to conviction of the party prosecuted.
Let us suppose, that this Court, claiming an appellate jurisdiction, forbids the execution of the party; but the State Court orders its judgment to be executed, and it is executed, by putting to death the prisoner. His life cannot be recalled: that is beyond the reach of human power; can you prosecute the judges or the officer for murder? It will not be contended Of what avail, then, the jurisdiction contended for, even for the purpose for which it is claimed? I answer, of none at all.
Smyth stated, that he should support the motion to dismiss the writ of error granted in this case, for two causes: 1. Because the constitution gives no jurisdiction to the Court in the case. Because the judiciary act gives no jurisdiction to the Court in this case. It is a question undecided, whether the appellate jurisdiction of this Court, as declared by the constitution, does or does not extend to this case. If it was in all respects similar to the case of Hunter v.
Martin , 5 adjudged in this Court, I should contend, that the constitutional question of jurisdiction should not be regarded as settled. In that case, the counsel conceded the constitutional question, and no argument has been offered to this Court in support of the jurisdiction of the State judiciary.
One of the learned Judges 6 of this Court said, in that case, when speaking of the claim of power in this Court to exercise appellate jurisdiction over the State tribunals, 'this is a momentous question, and one on which I shall reserve myself uncommitted, for each particular case as it shall occur.
This is a writ of error to revise a judgment given in a criminal prosecution, and in a case wherein a State was a party. The government of the United States being one of enumerated powers, it is not a sufficient justification of the authority claimed, to say that there is nothing in the constitution that prohibits the federal judiciary to take cognizance, by way of appeal, of cases decided in the State Courts. All the powers not granted are retained by the States; judicial power is granted; but it is federal judicial power that is granted, and not State judicial power.
This grant neither impairs the authority of the State Courts in suits remaining within their jurisdiction, nor makes them inferior Courts of the United States. The government of the United States operates directly upon the people, and not at all upon the State governments, or the several branches thereof. The State governments are not subject to this government.
The people are subject to both governments. This government is in no respect federal in its operation, although it is, in some respects, federal in its organization. Power has, indeed, been vested, by the constitution, in the State legislatures, to pass certain laws necessary to organize and continue the existence of the general government, and this power Congress may in part assume.
They may prescribe the time, place, and manner, of holding elections of representatives; the time and manner of choosing Senators by the State legislatures; and the time of choosing electors of a President. This power is expressly given by the constitution; it was necessary Congress should possess it, for self-preservation; and, even in these cases, they have no power to prescribe to the State legislature a legislative act.
This government cannot prescribe an executive act to the executive of a State, a legislative act to the legislature of a State, or as I contend a judicial act to the judiciary of a State. If the constitution does not confer on the judiciary of the United States the appellate jurisdiction claimed, it is not enough that the act of Congress may purport to confer it. The framers of the judiciary act manifested a distrust of their authority; they seem to have foreseen that the State Courts would refuse to give judgment according to the opinions of the Supreme Court.
The case decided in the State Court was not a case in law arising under the laws of the United States. It was a prosecution under a law of the State. Should a mandate issue in this case, and obedience be refused, this Court will give judgment on a prosecution for violating State laws.
If the case decided in the State Court be regarded as a case in which a State was a party, the Supreme Court has, by the constitution, original, and not appellate jurisdiction. The appellate jurisdiction of the Supreme Court is only conferred in cases other than those whereof the Supreme Court has original jurisdiction. Who has original jurisdiction of those other cases? The inferior federal Courts. Some of those other cases are those of admiralty and maritime jurisdiction, of which, certainly, it was not intended that the original jurisdiction should be in the State Courts.
If this writ of error be considered to be a suit in law, this Court has no jurisdiction: for it is prosecuted against a State; and, by the 11th amendment to the constitution, no suit in law can be prosecuted by foreigners or citizens of another State against one of the United States.
The amendment prohibits such suits commenced or prosecuted against a State. This seems expressly to extend to this writ of error, which, although not a suit in law commenced against a State, is a suit in law prosecuted against a State. This amendment, denying to foreigners and citizens of other States the right to prosecute a suit against a State, and being silent as to citizens of the same State, affords a proof that the federal Courts never had jurisdiction of a suit between a citizen and the State whereof he is a citizen: for it cannot be presumed, that a right to prosecute a suit against a State would be taken from a foreigner or citizen of another State, and left to citizens of the same State.
A release of all suits is a release of a writ of error; 7 and, consequently, a writ of error is 'a suit in law,' and cannot be prosecuted against a State. The appellate jurisdiction conferred by the constitution on the Supreme Court, is merely authority to revise the decisions of inferior Courts of the United States.
Where the Supreme Court have not original jurisdiction, they have, by the constitution, appellate jurisdiction as to law and fact. Could it have been intended to confer a power to re-examine decisions in the State Courts; to try again the facts tried in those Courts, and this even in criminal prosecutions?
Surely not. Appellate jurisdiction signifies judicial power over the decisions of the inferior tribunals of the same sovereignty. Congress have power to 'constitute' such tribunals; and it is made their duty to 'ordain and establish' such. The framers of the constitution intended to create a new judiciary, to exercise the judicial power of a new government, unconnected with the judiciaries of the several States.
Congress is not authorized to make the Supreme Court, or any other Court of a State, an inferior Court. They do not 'constitute' such a Court; they do not 'ordain and establish it. The inferior Courts, spoken of in the constitution, are manifestly to be held by federal judges.
The judicial power to be exercised, is the judicial power of the United States; the errors to be corrected are those of that judicial power; and there can be no inferior Courts exercising the judicial power of the United States, other than those constituted, ordained, and established by Congress. The Supreme Court has appellate jurisdiction in cases to which the judicial power of the United States shall extend; but unless the original jurisdiction has extended to the case, the appellate jurisdiction can never reach it.
The original jurisdiction alone is qualified to lay hold of it. If it shall be deemed proper to extend the judicial power to all the cases enumerated, the original jurisdiction must be thus extended. The Court exercising appellate jurisdiction, must not only have jurisdiction over such a cause, and such parties, but it must have jurisdiction over the tribunal before which the cause has been depending.
Judicial power, includes power to decide, and power to enforce the decision. This Court has rather disclaimed power to enforce its mandate to the Supreme Court of a State. If you have not power to compel State tribunals to obey your decisions, you have no appellate jurisdiction in cases depending before them. Suppose it should be found necessary to direct a new trial in a cause removed from a State Court, and that the State Court refuses to obey your mandate; where shall the new trial be had?
If you have appellate jurisdiction in a case decided by a State Court, you must have power to make your decisions a part of the record of the State Court. The Constitution provides that full faith and credit shall be given in each State, to the judicial proceedings of every other State. A plaintiff recovers in the Courts of Virginia judgment for a sum of money; you reverse the judgment; but, the State Court does not record your decision; the plaintiff obtains a copy of the record of the judicial proceedings of the State, and presents them as evidence before the Court of another State; he must recover, notwithstanding your judgment, which has not been made a part of that record, to which full faith and credit is to be given.
To give jurisdiction over the State Courts, it is not sufficient that the constitution has said that the Supreme Court shall have appellate jurisdiction; for that will be understood to signify, jurisdiction over inferior federal Courts.
To confer the jurisdiction claimed, the constitution should have said, that the judicial power of the United States shall have appellate jurisdiction over the judicial power of the several States. If it had been intended to give appellate jurisdiction over the State Courts, the proper expressions would have been used.
There is not a word in the constitution that goes to set up the federal judiciary above the state judiciary. The state judiciary is not once named. The subjects spoken of are the judicial power of the United States; the supreme and inferior Courts of the United States; and the original and appellate jurisdiction of the Supreme Court.
Appellate jurisdiction is not granted to the judicial power of the United States. It is granted to the Supreme Court of the United States. Federal judicial power is authorized to correct the errors of federal judicial power. I contend, that in no case can the federal Courts revise the decisions of the State Courts; no such power is expressly given by the constitution: and can it be believed that it was meant that the greatest, the most consolidating of all the powers of this Government, should pass by an unnecessary implication?
The States have granted to the United States power to pronounce their own judgment in certain cases; but they have not granted the State Courts to the federal Government; nor power to revise State decisions.
The power of the House of Lords to hear appeals from the highest Court in Scotland, has been mentioned as a precedent for the exercise of such a power as is claimed for this Court; but the cases are by no means similar: Scotland is consolidated with England under the same executive and legislature; and, therefore, ought to be subject, in the last resort, to the same judicial tribunal.
If the States had no executive except the President, and no legislature except Congress, the cases would have some resemblance. If you correct the errors of the Courts of Virginia, you either make them Courts of the United States, or you make the Supreme Court of the United States a part of the judiciary of Virginia. The United States can only pronounce the judgment of the United States. Virginia alone can pronounce the judgment of Virginia. Consequently, none but a Virginia Court can correct the errors of a Virginia Court.
There is nothing in the constitution that indicates a design to make the State judiciaries subordinate to the judiciary of the United States.
The argument that Congress must establish a Supreme Court, and might have omitted to establish inferior Courts, thereby depriving the Supreme Court of its appellate jurisdiction, unless it should be exercised over the State Courts, seems to be without foundation.
The judicial power of the United States is vested in the Supreme Court, and inferior Courts; the judges of the inferior Courts shall receive a compensation. The possibility of Congress omitting to perform a duty positively enjoined on them, cannot change the constitution, or affect the jurisdiction of the State Courts. The federal judiciary and State judiciaries possess concurrent power in certain cases; but no authority is conferred on the one to reverse the decisions of the other.
The State Courts retain a concurrent authority in cases wherein they had jurisdiction previous to the adoption of the constitution, unless it is taken away by the operation of that instrument.
I say a concurrent authority, not a subordinate authority. The power of the judiciary of the United States is either exclusive or concurrent, but not paramount power. And where it is concurrent only, then, whichsoever judiciary gets possession of the case, should proceed to final judgment, from which there should be no appeal.
If it shall be established that this Court has appellate jurisdiction over the State Courts in all cases enumerated in the third article of the constitution, a complete consolidation of the States, so far as respects judicial power, is produced; and it is presumed that it was not the intention of the people to consolidate the judicial systems of the States, with that of the United States.
It has been said, that the Courts of the United States can 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; and that the exercise of the same right over judicial tribunals, is not a higher or more dangerous act of sovereign power.
When the federal Courts declare an act of a State legislature unconstitutional, or an act of the State executive unlawful, they exercise no higher authority than the State Courts exercise, who will not only declare an act of the State legislature, but even an act of Congress, unconstitutional and void.
This only proves that the federal and State judiciaries have equally authority to judge of the validity of the acts of the other branches of both governments, and has no tendency whatever to establish the claim set up by federal judicial power, of supremacy over State judicial power. This writ of error brings up the judgment rendered in a State Court, in a criminal prosecution. Every government must possess within itself, and independently, the power to punish offences against its laws.
It would degrade the State governments, and devest them of every pretension to sovereignty, to determine that they cannot punish offences without their decisions being liable to a re-examination, both as to law and fact, if Congress please, before the Supreme Court of the United States.
The claim set up would make the States dependent for the execution of their criminal codes, upon the federal judiciary. The cases 'in which a State shall be a party,' of which the Supreme Court may take cognizance, are civil controversies. This seems obvious; because, to the Supreme Court is granted original jurisdiction of them. And it will not be contended that the Supreme Court shall have original jurisdiction of prosecutions carried on by a State, against those who violate its laws.
If 'cases in law and equity, arising under the laws of the United States,' comprehend criminal prosecutions in the State Courts, then every prosecution against a citizen of the State, in which he may claim some exemption under an act of Congress or a treaty, however unfounded the claim, may be re-examined, both as to law and fact, if Congress please, in the Supreme Court. And if 'controversies' include such prosecutions, then every prosecution against an alien, or the citizen of another State, may be so re-examined, whether he claim such exemption or not.
Can this Court bring up a capital case, wherein some exemption under a federal law is claimed by a prisoner in a State Court? Would an appeal lie, should Congress so direct, from a jury? It would not, even if the trial was had in a federal Court; for the accused has a right to a trial by a jury in the State and district wherein the crime shall be charged to have been committed. In all cases within the appellate jurisdiction of the Supreme Court, that jurisdiction may extend to the law and the fact.
But such jurisdiction, as to the fact, cannot extend to criminal cases; consequently, it was not intended that the appellate jurisdiction should extend to criminal cases; and, therefore, the Supreme Court have no appellate jurisdiction in criminal cases. Can, then, the Court take jurisdiction in this case, which was a criminal prosecution, founded on the presentment of a grand jury?
Surely they cannot. This case was not a qui tam action, which is regarded as a civil suit. And it has been declared by a judge of this Court, that 'the Courts of the United States are vested with no power to scrutinize into the proceedings of the State Courts, in criminal cases. That which is fixed by the constitution, Congress have no power to change. The jurisdiction of the State Courts is fixed by the constitution.
It is not a subject for congressional legislation. The people of Virginia, in adopting the constitution of the United States, had power to diminish the jurisdiction of the State judiciary: but Congress have no power over it; they can neither diminish nor extend it; they can neither take from the State tribunals one cause, or give them one to decide. As they cannot impose on the State Courts any duties, so neither can they take from them any powers.
Congress can neither add to or diminish the legislative power, the executive power, or the judicial power of a State, as fixed by the constitution. Congress may pass all laws necessary and proper to execute that power which is vested by the constitution in the judiciary of the United States; but this does not sanction a violation of the authority of the State Courts.
None can enlarge or abridge the jurisdiction of the judiciary of Virginia, except the people of Virginia, or the legislature of that State. As was the jurisdiction of the State judiciary on the 4th day of March, , so it stands at this day, unless altered by the State. If on that day the States retained jurisdiction of most of the cases enumerated in the third article of the constitution, that jurisdiction must have been left to them by the constitution, and cannot be taken from them by Congress.
The power either of a State legislature or a State judiciary, cannot depend on the use of, or neglect to use, a power, by Congress. Such State power is fixed by the constitution; the same to day as to-morrow, however Congress may legislate. The judicial power of the United States is conferred by the constitution, and Congress cannot add to that power.
Congress may distribute the federal judicial power among the federal Courts, so far as the distribution has not been made by the constitution. If the constitution does not confer on this Court, or on the federal judiciary, the power sought to be exercised, it is in vain that the act of Congress purports to confer it.
And where the constitution confers original jurisdiction, as in cases where a State is a party, Congress cannot change it into appellate jurisdiction. The extent of the judicial power of the United States being fixed by the constitution, it cannot be made exclusive or concurrent, at the will of Congress.
They cannot decide whether it is exclusive of the State Courts or not; for that is a judicial question, arising under the constitution. If the judicial power of the United States is exclusive, Congress cannot communicate a part of it to the State Courts, giving to the federal Courts appellate jurisdiction over them.
If by the constitution the State judiciary has concurrent jurisdiction, Congress cannot grant to the federal Courts an appellate jurisdiction over the exercise of such concurrent power. The state judiciary cannot have independent or subordinate power, at the will and pleasure of Congress. The State judiciary have concurrent jurisdiction, by the constitution, over all the cases enumerated in the third article of the constitution, except, 1.
Prosecutions for violating federal laws; 2. Cases of admiralty and maritime jurisdiction; and, 3. Cases affecting ambassadors, other public ministers, and consuls.
No government can execute the criminal laws of another government. The States have parted with exterior sovereignty. As they cannot make treaties, perhaps they have not jurisdiction in the case of ministers sent to the federal government; as they cannot make war and peace, regulate commerce, define and punish piracies and offences on the high seas, and against the law of nations, or make rules concerning captures on the water, perhaps they have no admiralty jurisdiction.
The jurisdiction of the State Courts over civil causes, arising under the constitution, laws, and treaties, seems to me to be unquestionable. The State judges are sworn to support the constitution, which declares them bound by the constitution, laws, and treaties. This was useless, unless they have jurisdiction of causes arising under the constitution, laws, and treaties, which are equally supreme law to the State Courts as to the federal Courts.
The State judges are bound by oath to obey the constitutional acts of Congress; but they are not so bound to obey the decisions of the federal Courts: the constitution and laws of the United States are supreme; but the several branches of the government of the United States have no supremacy over the corresponding branches of the State governments. The jurisdiction of the State Courts is admitted by Congress, in the judiciary act: for, by an odious provision therein, which does not seem to be impartial, the decision of the State Court, if given in favour of him who claims under federal law, is final and conclusive.
Thus, the State Courts have acknowledged jurisdiction; and if that jurisdiction is constitutional, Congress cannot control it. Congress cannot authorize the Supreme Court to exercise appellate jurisdiction over the decisions of the State Courts, unless they have legislative power over those Courts. I presume it will be admitted that they cannot. And why can they not? Because they have no power over the State Court. And if they cannot give an appeal to that Court, they cannot give an appeal from that Court.
The constitution provides, that the judicial power of the United States shall 'extend to' certain enumerated cases. These words signify plainly, that the federal Courts shall have jurisdiction in those cases; but this does not imply exclusive jurisdiction, except in those cases where the jurisdiction of the State Courts would be contrary to the necessary effect of the provisions of the constitution.
Civil suits, arising under the laws of the United States, may be brought and finally determined in the Courts of foreign nations; and, consequently, may be brought and finally determined in the State Courts. The judiciary of every government must judge of its own jurisdiction. The federal judiciary and the State judiciary may each determine that it has, or that it has not, jurisdiction of the case brought before it: but neither can withdraw a case from the jurisdiction of the other. The question, whether a State Court has jurisdiction or not, is a judicial question, to be settled by the State judiciary , and not by an act of Congress, nor by the judgment of the Supreme Court of the United States.
Shall the States be denied the power of judging of their own laws? As their legislation is subject to no negative, so their judgment is subject to no appeal. Sovereignty consists essentially in the power to legislate, judge of, and execute laws. The States are as properly sovereign now as they were under the confederacy; and we have their united declaration that they then, individually, retained their sovereignty, freedom, and independence.
The constitution recognizes the sovereignty of the States: for it admits, that treason may be committed against them. They would not be entitled to the appellation of 'States' if they were not sovereign. Although the State Courts should maintain a concurrent jurisdiction with the federal Courts, yet foreigners would have what, before the adoption of the constitution they had not, a choice of tribunals, before which to bring their actions; and the State judges are now bound by treaties as supreme law.
If an alien plaintiff sues in the State Courts, he ought to be bound by their decision; and if an alien is sued in a State Court, he ought to be bound by the decision of the State in which he resides or sojourns, which protects him, to which he owes a temporary allegiance, and to whose laws he should yield obedience.
The people could not have intended to give to strangers a double chance to recover, while citizens should be held bound by the first decision; that the citizen should be bound by the judgment of the State alone, while the stranger should not be bound but by the judgment of the State, and also of the United States.
A statute contrary to reason, is void. An act of Congress which should violate the principles of natural justice, should also be deemed void. It is worthy of consideration, whether this clause in the judiciary act, which grants an appeal to one party, and denies it to the other, is not void, as being partial and unjust.
If, in any case brought before them, the State Courts shall not have jurisdiction, the defendant may plead to the jurisdiction, and the Supreme Court of the State will finally decide the point. If this is not a sufficient security for justice, as I apprehend it is, an amendment to the constitution may provide another remedy. If the defendant submits to the jurisdiction of the State Court, and takes a chance of a fair trial, it is reasonable that he should be bound by the result.
As I deny to this Court authority to remove, by writ of error, a cause from a State Court, so I likewise deny the authority of this Court to remove, before judgment, from a State Court, a suit brought therein. It will be equally an invasion of the jurisdiction of the State Court, although less offensive in form, than a removal after judgment has been rendered.
Plaintiffs, who legally purchased lottery tickets in Washington, D. Whether the Supreme Court of the United States had jurisdiction to hear a controversy between a gaming law enacted by Congress and a state law prohibiting the sale of lottery tickets. The United States Supreme Court affirmed the judgment, finding that the Constitution granted it jurisdiction to hear the controversy, and the lottery statute passed by Congress applied to Washington, D. The writ of error was governed by the Constitution, and judicial power extended to all cases arising under the Constitution without respect to the parties.
The Constitution granted the Supreme Court jurisdiction and authority to hear the controversy and granted the federal judiciary supervisory power over state court judgments.
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