U.S. Supreme Court Martin v. Hunter's Lessee, 14 U.S. 1 Wheat. 304 304 (1816) Martin v. Hunter's
Lessee 14 U.S. (1 Wheat.)
304 ERROR TO THE COURT OF
APPEALS OF THE STATE OF
VIRGINIA Page
14 U. S. 305 This was a writ of error to the Court
of appeals of the state of Virginia, founded upon the refusal of
that Court to obey the mandate of this Court, requiring the
judgment rendered in this same cause, at February Term, 1813, to be
carried into due execution. The following is the judgment of the
Court of appeals, rendered on the mandate: "The Court is unanimously of opinion
that the appellate power of the Supreme Court of the United States
does not Page
14 U. S. 306 extend to this Court under a sound
construction of the Constitution of the United States; that so much
of the 25th section of the act of Congress, to establish the
judicial courts of the United States as extends the appellate
jurisdiction of the Supreme Court to this Court is not in pursuance
of the Constitution of the United States. That the writ of error in
this cause was improvidently allowed under the authority of that
act; that the proceedings thereon in the Supreme Court were coram non judice in relation to this Court, and that
obedience to its mandate be declined by the Court." The original suit was an action of
ejectment, brought by the defendant in error in one of the district
courts of Virginia, holden at Winchester, for the recovery of a
parcel of land, situate within that tract, called the Northern Neck
of Virginia, and part and parcel thereof. A declaration in
ejectment was served (April, 1791) on the tenants in possession,
whereupon Denny Fairfax (late Denny Martin), a British subject,
holding the land in question under the devise of the late Thomas
Lord Fairfax, was admitted to defend the suit, and plead the
general issue, upon the usual terms of confessing lease, entry, and
ouster, &c., and agreeing to insist, at the trial, on the title
only, &c. The facts being settled in the form of a case agreed
to be taken and considered as a special verdict, the Court, on
consideration thereof, gave judgment (24th of April, 1794) in
favour of the defendant in ejectment. From that judgment the
plaintiff in ejectment (now defendant in error) appealed to the
Court of Appeals, Page
14 U. S. 307 being the highest court of law of
Virginia. At April term, 1810, the Court of appeals reversed the
judgment of the district Court and gave judgment for the then
appellant, now defendant in error, and thereupon the case was
removed into this Court. Statement of the facts as settled by
the case agreed. 1st. The title of the late Lord Fairfax
to all that entire territory and tract of land called the Northern
Neck of Virginia, the nature of his estate in the same, as he
inherited it, and the purport of the several charters and grants
from the Kings Charles II. and James II., under which his ancestor
held, are agreed to be truly recited in an Act of the Assembly of
Virginia, passed in the year 1736, [Vide Rev.Code, v. 1. ch. 3. p.
5] "For the confirming and better securing the titles to lands in
the Northern Neck, held under the Rt. Hon. Thomas Lord Fairfax,"
&c. From the recitals of the act, it
appears that the first letters patent (1 Car. II.) granting the
land in question to Ralph Lord Hopton and others, being surrendered
in order to have the grant renewed, with alterations, the Earl of
St. Albans and others (partly survivors of, and partly purchasers
under, the first patentees) obtained new letters patent (2 Car. II)
for the same land and appurtenances, and by the same description,
but with additional privileges and reservations, &c. The estate granted is described to
be, "All that entire tract, territory, or
parcel of land, situate, &c., and bounded by, and within the
heads of, the Rivers Rappahannock, &c., together with the
rivers themselves, and all the islands, &c., and all woods,
underwoods, timber, &c., Page
14 U. S. 308 mines of gold and silver, lead, tin,
&c., and quarries of stone and coal, &c., to have, hold,
and enjoy the said tract of land, &c. to the said [patentees],
their heirs and assigns forever, to their only use and behoof, and
to no other use, intent, or purpose whatsoever." There is reserved to the crown the
annual rent of 6l. 13s. 4d. "in lieu of all services and demands
whatsoever;" also one-fifth part of all gold, and one-tenth part of
all silver mines. To the absolute title and seisin in fee
of the land and its appurtenance, and the beneficial use and
enjoyment of the same, assured to the patentees, as tenants in
capite, by the most direct and abundant terms of conveyancing,
there are superadded certain collateral powers of baronial
dominion; reserving, however, to the Governor, Council and Assembly
of Virginia the exclusive authority in all the military concerns of
the granted territory, and the power to impose taxes on the persons
and property of its inhabitants for the public and common defence
of the colony, as well as a general jurisdiction over the
patentees, their heirs and assigns, and all other inhabitants of
the said territory. In the enumeration of privileges
specifically granted to the patentees, their heirs and assigns, is
that "freely and without molestation of the
King, to give, grant, or by any ways or means, sell or alien all
and singular the granted premises, and every part and parcel
thereof, to any person or persons being willing to contract for, or
buy, the same." There is also a condition to avoid the
grant, as to so much of the granted premises as should not
be Page
14 U. S. 309 possessed, inhabited, or planted, by
the means or procurement of the patentees, their heirs or assigns,
in the space of 21 years. The third and last of the letters
patent referred to (4 Jac. II) after reciting a sale and conveyance
of the granted premises by the former patentees, to Thomas Lord
Culpepper, "who was thereby become sole owner and proprietor
thereof, in fee simple," proceeds to confirm the same to Lord
Culpepper, in fee simple, and to release him from the said
condition, for having the lands inhabited or planted as
aforesaid. The said act of assembly then recites
that Thomas Lord Fairfax, heir at law of Lord Culpepper, had become
"sole proprietor of the said territory, with the appurtenances, and
the above-recited letters patent." By another act of assembly, passed in
the year 1748 (Rev.Code, v. 1. ch. 4. p. 10), certain grants from
the crown, made while the exact boundaries of the Northern Neck
were doubtful, for lands which proved to be within those
boundaries, as then recently settled and determined, were, with the
express consent of Lord Fairfax, confirmed to the grantees, to be
held, nevertheless, of him, and all the rents, services, profits,
and emoluments (reserved by such grants) to be paid and performed
to him. In another Act of Assembly, passed May,
1779, for establishing a land office, and ascertaining the terms
and manner of granting waste and unappropriated lands, there is the
following clause, viz. ( vide Chy.Rev. of 1783,
ch. 13. s. 6. p. 98.) "And that the Page
14 U. S. 310 proprietors of land within this
Commonwealth may no longer be subject to any servile, feudal, or
precarious tenure, and to prevent the danger to a free state from
perpetual revenue, be it enacted, that the royal mines, quit-rents,
and all other reservations and conditions in the patents or grants
of land from the crown of England, under the former government,
shall be, and are hereby declared null and void; and that all lands
thereby respectively granted shall be held in absolute and
unconditional property, to all intents and purposes whatsoever, in
the same manner with the lands hereafter granted by the
Commonwealth, by virtue of this act." 2d. As respects the actual exercise of
his proprietary rights by Lord Fairfax. It is agreed that he did, in the year
1748, open and conduct, at his own expense, an office within the
Northern Neck for granting and conveying what he described and
called the waste and ungranted lands therein, upon certain terms,
and according to certain rules by him established and published;
that he did, from time to time, grant parcels of such lands in fee
(the deeds being registered at his said office, in books kept for
that purpose, by his own clerks and agents); that, according to the
uniform tenor of such grants, he did, styling himself proprietor of
the Northern Neck, &c., in consideration of a certain
composition to him paid, and of certain annual rents therein
reserved, grant, &c., with a clause of reentry for non-payment
of the rent, & c.; that he also demised, for lives and terms of
years, parcels of the same description of lands, also reserving
annual Page
14 U. S. 311 rents; that he kept his said office
open for the purposes aforesaid, from the year 1748 till his death,
in December, 1781; during the whole of which period, and before, he
exercised the right of granting in fee, and demising for lives and
terms of years, as aforesaid, and received and enjoyed the rents
annually, as they accrued, as well under the grants in fee, as
under the leases for lives and years. It is also agreed that Lord
Fairfax died seised of lands in the Northern Neck equal to about
300,000 acres, which had been granted by him in fee, to one T. B.
Martin, upon the same terms and conditions, and in the same form,
as the other grants in fee before described, which lands were, soon
after being so granted, reconveyed to Lord Fairfax in
fee. 3d. Lord Fairfax, being a citizen and
inhabitant of Virginia, died in the month of December, 1781, and,
by his last will and testament, duly made and published, devised
the whole of his lands, &c., called, or known by the name of
the Northern Neck of Virginia, in fee, to Denny Fairfax, (the
original defendant in ejectment), by the name and description of
the Reverend Denny Martin, &c., upon condition of his taking
the name and arms of Fairfax, &c., and it is admitted that he
fully complied with the conditions of the devise. 4th. It is agreed that Denny Fairfax,
the devisee, was a native-born British subject, and never became a
citizen of the United States, nor any one of them, but always
resided in England, as well during the Revolutionary War as from
his birth, about the year 1750, to his death, which happened some
time between Page
14 U. S. 312 the years 1796 and 1803, as appears
from the record of the proceedings in the Court of
appeals. It is also admitted that Lord Fairfax
left, at his death, a nephew named Thomas Bryan Martin, who was
always a citizen of Virginia, being the younger brother of the said
devisee, and the second son of a sister of the said Lord Fairfax;
which sister was still living, and had always been a British
subject. 5th. The land demanded by this
ejectment being agreed to be part and parcel of the said territory
and tract of land called the Northern Neck, and to be a part of
that description of lands within the Northern Neck, called and
described by Lord Fairfax as "waste and ungranted," and being also
agreed never to have been escheated and seised into the hands of
the Commonwealth of Virginia, pursuant to certain acts of assembly
concerning escheators, and never to have been the subject of any
inquest of office, was contained and included in a certain patent,
bearing date the 30th of April, 1789, under the hand of the then
Governor, and the seal of the Commonwealth of Virginia, purporting
that the land in question is granted by the said Commonwealth unto
David Hunter (the lessor of the plaintiff in ejectment) and his
heirs forever, by virtue and in consideration of a land office
treasury warrant, issued the 23d of January, 1788. The said lessor
of the plaintiff in ejectment is, and always has been, a citizen of
Virginia; and in pursuance of his said patent, entered into the
land in question, and was thereof possessed, prior to the
institution of the said action of ejectment. Page
14 U. S. 313 6th. The definitive treaty of peace
concluded in the year 1783, and the treaty of amity, commerce, and
navigation, of 1794, between the United States of America and Great
Britain, and also the several acts of the Assembly of Virginia
concerning the premises are referred to as making a part of the
case agreed. Upon this state of facts, the judgment
of the Court of appeals of Virginia was reversed by this Court, at
February term, 1813, and thereupon the mandate above mentioned was
issued to the Court of appeals, which being disobeyed, the cause
was again brought before this Court. Page
14 U. S. 323 STORY, J., delivered the opinion of the
Court. This is a writ of error from the Court
of Appeals of Virginia founded upon the refusal of that Court to
obey the mandate of this Court requiring the judgment rendered in
this very cause, at February Term, 1813, to be carried into due
execution. The following is the judgment of the Court of Appeals
rendered on the mandate: "The Court is unanimously of opinion,
that the appellate power of the Supreme Court of the United States
does not extend to this Court, under a sound construction of the
Constitution of the United States; that so much of the 25th section
of the act of Congress to establish the judicial courts of the
United States, as extends the appellate jurisdiction of the Supreme
Court to this Court, is not in pursuance of the Constitution of
the Page
14 U. S. 324 United States; that the writ of error
in this cause was improvidently allowed under the authority of that
act; that the proceedings thereon in the Supreme Court were coram non judice in relation to this Court, and that
obedience to its mandate be declined by the Court." The questions involved in this judgment
are of great importance and delicacy. Perhaps it is not too much to
affirm that, upon their right decision rest some of the most solid
principles which have hitherto been supposed to sustain and protect
the Constitution itself. The great respectability, too, of the
Court whose decisions we are called upon to review, and the entire
deference which we entertain for the learning and ability of that
Court, add much to the difficulty of the task which has so
unwelcomely fallen upon us. It is, however, a source of
consolation, that we have had the assistance of most able and
learned arguments to aid our inquiries; and that the opinion which
is now to be pronounced has been weighed with every solicitude to
come to a correct result, and matured after solemn
deliberation. Before proceeding to the principal
questions, it may not be unfit to dispose of some preliminary
considerations which have grown out of the arguments at the
bar. The Constitution of the United States
was ordained and established not by the States in their sovereign
capacities, but emphatically, as the preamble of the Constitution
declares, by "the people of the United States." There can be no
doubt that it was competent to the people to invest the general
government Page
14 U. S. 325 with all the powers which they might
deem proper and necessary, to extend or restrain these powers
according to their own good pleasure, and to give them a paramount
and supreme authority. As little doubt can there be that the people
had a right to prohibit to the States the exercise of any powers
which were, in their judgment, incompatible with the objects of the
general compact, to make the powers of the State governments, in
given cases, subordinate to those of the nation, or to reserve to
themselves those sovereign authorities which they might not choose
to delegate to either. The Constitution was not, therefore,
necessarily carved out of existing State sovereignties, nor a
surrender of powers already existing in State institutions, for the
powers of the States depend upon their own Constitutions, and the
people of every State had the right to modify and restrain them
according to their own views of the policy or principle. On the
other hand, it is perfectly clear that the sovereign powers vested
in the State governments by their respective Constitutions remained
unaltered and unimpaired except so far as they were granted to the
Government of the United States. These deductions do not rest upon
general reasoning, plain and obvious as they seem to be. They have
been positively recognised by one of the articles in amendment of
the Constitution, which declares that "The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people. " Page
14 U. S. 326 The government, then, of the United
States can claim no powers which are not granted to it by the
Constitution, and the powers actually granted, must be such as are
expressly given, or given by necessary implication. On the other
hand, this instrument, like every other grant, is to have a
reasonable construction, according to the import of its terms, and
where a power is expressly given in general terms, it is not to be
restrained to particular cases unless that construction grow out of
the context expressly or by necessary implication. The words are to
be taken in their natural and obvious sense, and not in a sense
unreasonably restricted or enlarged. The Constitution unavoidably deals in
general language. It did not suit the purposes of the people, in
framing this great charter of our liberties, to provide for minute
specifications of its powers or to declare the means by which those
powers should be carried into execution. It was foreseen that this
would be a perilous and difficult, if not an impracticable, task.
The instrument was not intended to provide merely for the
exigencies of a few years, but was to endure through a long lapse
of ages, the events of which were locked up in the inscrutable
purposes of Providence. It could not be foreseen what new changes
and modifications of power might be indispensable to effectuate the
general objects of the charter, and restrictions and specifications
which at the present might seem salutary might in the end prove the
overthrow of the system itself. Hence its powers are expressed in
general terms, leaving to the legislature from time to Page
14 U. S. 327 time to adopt its own means to
effectuate legitimate objects and to mould and model the exercise
of its powers as its own wisdom and the public interests, should
require. With these principles in view,
principles in respect to which no difference of opinion ought to be
indulged, let us now proceed to the interpretation of the
Constitution so far as regards the great points in
controversy. The third article of the Constitution
is that which must principally attract our attention. The 1st.
section declares, "The judicial power of the United
States shall be vested in one Supreme Court, and in such other
inferior Courts as the Congress may, from time to time, ordain and
establish." The 2d section declares,
that "The judicial power shall extend to all
cases in law or equity, arising under this Constitution, the laws
of the United States, and the 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 the grants of different States; and between a State or
the citizens thereof, and foreign States, citizens, or
subjects." It then proceeds to declare,
that "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. Page
14 U. S. 328 In all the other cases before
mentioned, the Supreme Court shall have appellate jurisdiction both
as to law and fact, with such exceptions and under such
regulations, as the Congress shall make." Such is the language of the article
creating and defining the judicial power of the United States. It
is the voice of the whole American people solemnly declared, in
establishing one great department of that Government which was, in
many respects, national, and in all, supreme. It is a part of the
very same instrument which was to act not merely upon individuals,
but upon States, and to deprive them altogether of the exercise of
some powers of sovereignty and to restrain and regulate them in the
exercise of others. Let this article be carefully weighed
and considered. The language of the article throughout is
manifestly designed to be mandatory upon the Legislature. Its
obligatory force is so imperative, that Congress could not, without
a violation of its duty, have refused to carry it into operation.
The judicial power of the United States shall be vested (not may be
vested) in one Supreme Court, and in such inferior Courts as
Congress may, from time to time, ordain and establish. Could
Congress have lawfully refused to create a Supreme Court, or to
vest in it the constitutional jurisdiction? "The judges, both of the supreme and
inferior courts, shall hold their offices during good behaviour,
and shall, at stated times, receive, for their services, a
compensation which shall not be diminished during their continuance
in office." Could Congress create or limit any
other tenure of Page
14 U. S. 329 the judicial office? Could they refuse
to pay at stated times the stipulated salary, or diminish it during
the continuance in office? But one answer can be given to these
questions: it must be in the negative. The object of the
Constitution was to establish three great departments of Government
-- the legislative, the executive, and the judicial departments.
The first was to pass laws, the second to approve and execute them,
and the third to expound and enforce them. Without the latter, it
would be impossible to carry into effect some of the express
provisions of the Constitution. How, otherwise, could crimes
against the United States be tried and punished? How could causes
between two States be heard and determined? The judicial power
must, therefore, be vested in some court by Congress; and to
suppose that it was not an obligation binding on them, but might,
at their pleasure, be omitted or declined, is to suppose that,
under the sanction of the Constitution, they might defeat the
Constitution itself, a construction which would lead to such a
result cannot be sound. The same expression, "shall be vested,"
occurs in other parts of the Constitution in defining the powers of
the other coordinate branches of the Government. The first article
declares that "all legislative powers herein granted shall be
vested in a Congress of the United States." Will it be contended
that the legislative power is not absolutely vested? that the words
merely refer to some future act, and mean only that the legislative
power may hereafter be vested? The second article declares that
"the Page
14 U. S. 330 executive power shall be vested in a
President of the United States of America." Could Congress vest it
in any other person, or is it to await their good pleasure whether
it is to vest at all? It is apparent that such a construction, in
either case, would be utterly inadmissible. Why, then, is it
entitled to a better support in reference to the judicial
department? If, then, it is a duty of Congress to
vest the judicial power of the United States, it is a duty to vest
the whole judicial power. The language, if imperative as to one
part, is imperative as to all. If it were otherwise, this anomaly
would exist, that Congress might successively refuse to vest the
jurisdiction in any one class of cases enumerated in the
Constitution, and thereby defeat the jurisdiction as to all, for
the Constitution has not singled out any class on which Congress
are bound to act in preference to others. The next consideration is as to the
Courts in which the judicial power shall be vested. It is manifest
that a Supreme Court must be established; but whether it be equally
obligatory to establish inferior Courts is a question of some
difficulty. If Congress may lawfully omit to establish inferior
Courts, it might follow that, in some of the enumerated cases, the
judicial power could nowhere exist. The Supreme Court can have
original jurisdiction in two classes of cases only, viz., in cases affecting ambassadors, other public ministers and consuls,
and in cases in which a State is a party. Congress cannot vest any
portion of the judicial power of the United States except in Courts
ordained and established by Page
14 U. S. 331 itself, and if, in any of the cases
enumerated in the Constitution, the State courts did not then
possess jurisdiction, the appellate jurisdiction of the Supreme
Court (admitting that it could act on State courts) could not reach
those cases, and, consequently, the injunction of the Constitution
that the judicial power "shall be vested," would be disobeyed. It
would seem therefore to follow that Congress are bound to create
some inferior Courts in which to vest all that jurisdiction which,
under the Constitution, is exclusively vested in the United States,
and of which the Supreme Court cannot take original cognizance.
They might establish one or more inferior Courts; they might parcel
out the jurisdiction among such Courts, from time to time, at their
own pleasure. But the whole judicial power of the United States
should be at all times vested, either in an original or appellate
form, in some Courts created under its authority. This construction will be fortified by
an attentive examination of the second section of the third
article. The words are "the judicial power shall extend," &c.
Much minute and elaborate criticism has been employed upon these
words. It has been argued that they are equivalent to the words
"may extend," and that "extend" means to widen to new cases not
before within the scope of the power. For the reason which have
been already stated, we are of opinion that the words are used in
an imperative sense. They import an absolute grant of judicial
power. They cannot have a relative signification applicable to
powers already granted, for the American people Page
14 U. S. 332 had not made any previous grant. The
Constitution was for a new Government, organized with new
substantive powers, and not a mere supplementary charter to a
Government already existing. The Confederation was a compact
between States, and its structure and powers were wholly unlike
those of the National Government. The Constitution was an act of
the people of the United States to supersede the Confederation, and
not to be ingrafted on it, as a stock through which it was to
receive life and nourishment. If, indeed, the relative signification
could be fixed upon the term "extend," it could not (as we shall
hereafter see) subserve the purposes of the argument in support of
which it has been adduced. This imperative sense of the words
"shall extend" is strengthened by the context. It is declared that,
"in all cases affecting ambassadors, &c., that the Supreme
Court shall have original jurisdiction." Could Congress withhold
original jurisdiction in these cases from the Supreme Court? The
clause proceeds -- "in all the other cases before
mentioned, the Supreme Court shall have appellate jurisdiction,
both as to law and fact, with such exceptions, and under such
regulations, as the Congress shall make." The very exception here shows that the
framers of the Constitution used the words in an imperative sense.
What necessity could there exist for this exception if the
preceding words were not used in that sense? Without such
exception, Congress would, by the preceding words, have possessed a
complete power to regulate the appellate jurisdiction, if the
language were Page
14 U. S. 333 only equivalent to the words "may have"
appellate jurisdiction. It is apparent, then, that the exception
was intended as a limitation upon the preceding words, to enable
Congress to regulate and restrain the appellate power, as the
public interests might, from time to time, require. Other clauses in the Constitution might
be brought in aid of this construction, but a minute examination of
them cannot be necessary, and would occupy too much time. It will
be found that whenever a particular object is to be effected, the
language of the Constitution is always imperative, and cannot be
disregarded without violating the first principles of public duty.
On the other hand, the legislative powers are given in language
which implies discretion, as, from the nature of legislative power,
such a discretion must ever be exercised. It being, then, established that the
language of this clause is imperative, the next question is as to
the cases to which it shall apply. The answer is found in the
Constitution itself. The judicial power shall extend to all the
cases enumerated in the Constitution. As the mode is not limited,
it may extend to all such cases, in any form, in which judicial
power may be exercised. It may therefore extend to them in the
shape of original or appellate jurisdiction, or both, for there is
nothing in the nature of the cases which binds to the exercise of
the one in preference to the other. In what cases (if any) is this judicial
power exclusive, or exclusive at the election of Congress? It will
be observed that there are two classes of cases
enumerated Page
14 U. S. 334 in the Constitution between which a
distinction seems to be drawn. The first class includes cases
arising under the Constitution, laws, and treaties of the United
States, cases affecting ambassadors, other public ministers and
consuls, and cases of admiralty and maritime jurisdiction. In this
class, the expression is, and that the judicial power shall extend
to all cases; but in the subsequent part of the clause which
embraces all the other cases of national cognizance, and forms the
second class, the word "all" is dropped, seemingly ex
industria. Here the judicial authority is to extend to
controversies (not to all controversies) to which the United States
shall be a party, &c. From this difference of phraseology,
perhaps, a difference of constitutional intention may, with
propriety, be inferred. It is hardly to be presumed that the
variation in the language could have been accidental. It must have
been the result of some determinate reason, and it is not very
difficult to find a reason sufficient to support the apparent
change of intention. In respect to the first class, it may well
have been the intention of the framers of the Constitution
imperatively to extend the judicial power either in an original or
appellate form to all cases, and in the latter class to leave it to
Congress to qualify the jurisdiction, original or appellate, in
such manner as public policy might dictate. The vital importance of all the cases
enumerated in the first class to the national sovereignty might
warrant such a distinction. In the first place, as to cases
arriving under the Constitution, laws, and treaties of the United
States. Here the State courts Page
14 U. S. 335 could not ordinarily possess a direct
jurisdiction. The jurisdiction over such cases could not exist in
the State courts previous to the adoption of the Constitution, and
it could not afterwards be directly conferred on them, for the
Constitution expressly requires the judicial power to be vested in
courts ordained and established by the United States. This class of
cases would embrace civil as well as criminal jurisdiction, and
affect not only our internal policy, but our foreign relations. It
would therefore be perilous to restrain it in any manner
whatsoever, inasmuch as it might hazard the national safety. The
same remarks may be urged as to cases affecting ambassadors, other
public ministers, and consuls, who are emphatically placed under
the guardianship of the law of nations, and as to cases of
admiralty and maritime jurisdiction, the admiralty jurisdiction
embraces all questions of prize and salvage, in the correct
adjudication of which foreign nations are deeply interested; it
embraces also maritime torts, contracts, and offences, in which the
principles of the law and comity of nations often form an essential
inquiry. All these cases, then, enter into the national policy,
affect the national rights, and may compromit the national
sovereignty. The original or appellate jurisdiction ought not
therefore to be restrained, but should be commensurate with the
mischiefs intended to be remedied, and, of course, should extend to
all cases whatsoever. A different policy might well be
adopted in reference to the second class of cases, for although it
might be fit that the judicial power should extend Page
14 U. S. 336 to all controversies to which the
United States should be a party, yet this power night not have been
imperatively given, least it should imply a right to take
cognizance of original suits brought against the United States as
defendants in their own Courts. It might not have been deemed
proper to submit the sovereignty of the United States, against
their own will to judicial cognizance, either to enforce rights or
to prevent wrongs; and as to the other cases of the second class,
they might well be left to be exercised under the exceptions and
regulations which Congress might, in their wisdom, choose to apply.
It is also worthy of remark that Congress seem, in a good degree,
in the establishment of the present judicial system, to have
adopted this distinction. In the first class of cases, the
jurisdiction is not limited except by the subject matter; in the
second, it is made materially to depend upon the value in
controversy. We do not, however, profess to place
any implicit reliance upon the distinction which has here been
stated and endeavoured to be illustrated. It has the rather been
brought into view in deference to the legislative opinion, which
has so long acted upon, and enforced this distinction. But there
is, certainly, vast weight in the argument which has been urged
that the Constitution is imperative upon Congress to vest all the
judicial power of the United States, in the shape of original
jurisdiction, in the Supreme and inferior courts created under its
own authority. At all events, whether the one construction or the
other prevail, it is manifest that the judicial power of
the Page
14 U. S. 337 United States is unavoidably, in some
cases, exclusive of all State authority, and in all others, may be
made so at the election of Congress. No part of the criminal
jurisdiction of the United States can, consistently with the
Constitution, be delegated to State tribunals. The admiralty and
maritime jurisdiction is of the same exclusive cognizance, and it
can only be in those cases where, previous to the Constitution,
State tribunals possessed jurisdiction independent of national
authority that they can now constitutionally exercise a concurrent
jurisdiction. Congress, throughout the Judicial Act, and
particularly in the 9th, 11th, and 13th sections, have legislated
upon the supposition that, in all the cases to which the judicial
powers of the United States extended, they might rightfully vest
exclusive jurisdiction in their own Courts. But even admitting that the language of
the Constitution is not mandatory, and that Congress may
constitutionally omit to vest the judicial power in Courts of the
United States, it cannot be denied that, when it is vested, it may
be exercised to the utmost constitutional extent. This leads us to the consideration of
the great question as to the nature and extent of the appellate
jurisdiction of the United States. We have already seen that
appellate jurisdiction is given by the Constitution to the Supreme
Court in all cases where it has not original jurisdiction, subject,
however, to such exceptions and regulations as Congress may
prescribe. It is therefore capable of embracing every case
enumerated in the Constitution which is not exclusively to be
decided by way of original Page
14 U. S. 338 jurisdiction. But the exercise of
appellate jurisdiction is far from being limited by the terms of
the Constitution to the Supreme Court. There can be no doubt that
Congress may create a succession of inferior tribunals, in each of
which it may vest appellate as well as original jurisdiction. The
judicial power is delegated by the Constitution in the most general
terms, and may therefore be exercised by Congress under every
variety of form of appellate or original jurisdiction. And as there
is nothing in the Constitution which restrains or limits this
power, it must therefore, in all other cases, subsist in the utmost
latitude of which, in its own nature, it is susceptible. As, then, by the terms of the
Constitution, the appellate jurisdiction is not limited as to the
Supreme Court, and as to this Court it may be exercised in all
other cases than those of which it has original cognizance, what is
there to restrain its exercise over State tribunals in the
enumerated cases? The appellate power is not limited by the terms
of the third article to any particular Courts. The words are, "the
judicial power (which includes appellate power) shall extend to all
cases," &c., and "in all other cases before mentioned, the
Supreme Court shall have appellate jurisdiction." It is the case,
then, and not the court, that gives the jurisdiction. If the
judicial power extends to the case, it will be in vain to search in
the letter of the Constitution for any qualification as to the
tribunal where it depends. It is incumbent, then, upon those who
assert such a qualification to show its existence by necessary
implication. If the Page
14 U. S. 339 text be clear and distinct, no
restriction upon its plain and obvious import ought to be admitted,
unless the inference be irresistible. If the Constitution meant to limit the
appellate jurisdiction to cases pending in the Courts of the United
States, it would necessarily follow that the jurisdiction of these
Courts would, in all the cases enumerated in the Constitution, be
exclusive of State tribunals. How otherwise could the jurisdiction
extend to all cases arising under the Constitution, laws, and
treaties of the United States, or to all cases of admiralty and
maritime jurisdiction? If some of these cases might be entertained
by State tribunals, and no appellate jurisdiction as to them should
exist, then the appellate power would not extend to all, but to
some, cases. If State tribunals might exercise concurrent
jurisdiction over all or some of the other classes of cases in the
Constitution without control, then the appellate jurisdiction of
the United States might, as to such cases, have no real existence,
contrary to the manifest intent of the Constitution. Under such
circumstances, to give effect to the judicial power, it must be
construed to be exclusive, and this not only when the casus
foederis should arise directly, but when it should arise
incidentally in cases pending in State courts. This construction
would abridge the jurisdiction of such Court far more than has been
ever contemplated in any act of Congress. On the other hand, if, as has been
contended, a discretion be vested in Congress to establish or not
to establish inferior Courts, at their own pleasure, and Page
14 U. S. 340 Congress should not establish such
Courts, the appellate jurisdiction of the Supreme Court would have
nothing to act upon unless it could act upon cases pending in the
State courts. Under such circumstances it must be held that the
appellate power would extend to State courts, for the Constitution
is peremptory that it shall extend to certain enumerated cases,
which cases could exist in no other Courts. Any other construction,
upon this supposition, would involve this strange contradiction
that a discretionary power vested in Congress, and which they might
rightfully omit to exercise, would defeat the absolute injunctions
of the Constitution in relation to the whole appellate
power. But it is plain that the framers of the
Constitution did contemplate that cases within the judicial
cognizance of the United States not only might, but would, arise in
the State courts in the exercise of their ordinary jurisdiction.
With this view, the sixth article declares, that "This Constitution, and the laws of the
United States which shall be made in pursuance thereof, and all
treaties made, or which shall be made, under the authority of the
United States, shall be the supreme law of the land, and the judges
in every State shall be bound thereby, anything in the Constitution
or laws of any State to the contrary notwithstanding." It is obvious that this obligation is
imperative upon the State judges in their official, and not merely
in their private, capacities. From the very nature of their
judicial duties, they would be called upon to pronounce the law
applicable to the case in judgment. They were not to decide
merely Page
14 U. S. 341 according to the laws or Constitution
of the State, but according to the Constitution, laws and treaties
of the United States -- "the supreme law of the land." A moment's consideration will show us
the necessity and propriety of this provision in cases where the
jurisdiction of the State courts is unquestionable. Suppose a
contract for the payment of money is made between citizens of the
same State, and performance thereof is sought in the courts of that
State; no person can doubt that the jurisdiction completely and
exclusively attaches, in the first instance, to such courts.
Suppose at the trial the defendant sets up in his defence a tender
under a State law making paper money a good tender, or a State law
impairing the obligation of such contract, which law, if binding,
would defeat the suit. The Constitution of the United States has
declared that no State shall make any thing but gold or silver coin
a tender in payment of debts, or pass a law impairing the
obligation of contracts. If Congress shall not have passed a law
providing for the removal of such a suit to the courts of the
United States, must not the State court proceed to hear and
determine it? Can a mere plea in defence be, of itself, a bar to
further proceedings, so as to prohibit an inquiry into its truth or
legal propriety when no other tribunal exists to whom judicial
cognizance of such cases is confided? Suppose an indictment for a
crime in a State court, and the defendant should allege in his
defence that the crime was created by an ex post facto act
of the State, must not the State court, in the exercise of a
jurisdiction which has already rightfully attached, have
a Page
14 U. S. 342 right to pronounce on the validity and
sufficiency of the defence? It would be extremely difficult, upon
any legal principles, to give a negative answer to these inquiries.
Innumerable instances of the same sort might be stated in
illustration of the position, and unless the State courts could
sustain jurisdiction in such cases, this clause of the sixth
article would be without meaning or effect, and public mischiefs of
a most enormous magnitude would inevitably ensue. It must therefore be conceded that the
Constitution not only contemplated, but meant to provide for, cases
within the scope of the judicial power of the United States which
might yet depend before State tribunals. It was foreseen that, in
the exercise of their ordinary jurisdiction, State courts would
incidentally take cognizance of cases arising under the
Constitution, the laws, and treaties of the United States. Yet to
all these cases the judicial power, by the very terms of the
Constitution, is to extend. It cannot extend by original
jurisdiction if that was already rightfully and exclusively
attached in the State courts, which (as has been already shown) may
occur; it must therefore extend by appellate jurisdiction, or not
at all. It would seem to follow that the appellate power of the
United States must, in such cases, extend to State tribunals; and
if in such cases, there is no reason why it should not equally
attach upon all others within the purview of the
Constitution. It has been argued that such an
appellate jurisdiction over State courts is inconsistent with the
genius Page
14 U. S. 343 of our Governments, and the spirit of
the Constitution. That the latter was never designed to act upon
State sovereignties, but only upon the people, and that, if the
power exists, it will materially impair the sovereignty of the
States, and the independence of their courts. We cannot yield to
the force of this reasoning; it assumes principles which we cannot
admit, and draws conclusions to which we do not yield our
assent. It is a mistake that the Constitution
was not designed to operate upon States in their corporate
capacities. It is crowded with provisions which restrain or annul
the sovereignty of the States in some of the highest branches of
their prerogatives. The tenth section of the first article contains
a long list of disabilities and prohibitions imposed upon the
States. Surely, when such essential portions of State sovereignty
are taken away or prohibited to be exercised, it cannot be
correctly asserted that the Constitution does not act upon the
States. The language of the Constitution is also imperative upon
the States as to the performance of many duties. It is imperative
upon the State legislatures to make laws prescribing the time,
places, and manner of holding elections for senators and
representatives, and for electors of President and Vice-President.
And in these as well as some other cases, Congress have a right to
revise, amend, or supersede the laws which may be passed by State
legislatures. When therefore the States are stripped of some of the
highest attributes of sovereignty, and the same are given to the
United States; when the legislatures of the States are, in
some Page
14 U. S. 344 respects, under the control of
Congress, and in every case are, under the Constitution, bound by
the paramount authority of the United States, it is certainly
difficult to support the argument that the appellate power over the
decisions of State courts is contrary to the genius of our
institutions. The courts of the United States can, without
question, 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.
Surely the exercise of the same right over judicial tribunals is
not a higher or more dangerous act of sovereign power. Nor can such a right be deemed to
impair the independence of State judges. It is assuming the very
ground in controversy to assert that they possess an absolute
independence of the United States. In respect to the powers granted
to the United States, they are not independent; they are expressly
bound to obedience by the letter of the Constitution, and if they
should unintentionally transcend their authority or misconstrue the
Constitution, there is no more reason for giving their judgments an
absolute and irresistible force than for giving it to the acts of
the other coordinate departments of State sovereignty. The argument urged from the possibility
of the abuse of the revising power is equally unsatisfactory. It is
always a doubtful course to argue against the use or existence of a
power from the possibility of its abuse. It is still more difficult
by such an argument to ingraft upon a general power a
restriction Page
14 U. S. 345 which is not to be found in the terms
in which it is given. From the very nature of things, the absolute
right of decision, in the last resort, must rest somewhere --
wherever it may be vested, it is susceptible of abuse. In all
questions of jurisdiction, the inferior or appellate court must
pronounce the final judgment; and common sense, as well as legal
reasoning, has conferred it upon the latter. It has been further argued against the
existence of this appellate power that it would form a novelty in
our judicial institutions. This is certainly a mistake. I n the
Articles of Confederation, an instrument framed with infinitely
more deference to State rights and State jealousies, a power was
given to Congress to establish "courts for revising and
determining, finally, appeals in all cases of captures." It is
remarkable that no power was given to entertain original
jurisdiction in such cases, and consequently the appellate power
(although not so expressed in terms) was altogether to be exercised
in revising the decisions of State tribunals. This was,
undoubtedly, so far a surrender of State sovereignty, but it never
was supposed to be a power fraught with public danger or
destructive of the independence of State judges. On the contrary,
it was supposed to be a power indispensable to the public safety,
inasmuch as our national rights might otherwise be compromitted and
our national peace been dangered. Under the present Constitution,
the prize jurisdiction is confined to the courts of the United
States, and a power to revise the decisions of State courts, if
they should assert jurisdiction over prize causes, cannot be
less Page
14 U. S. 346 important or less useful than it was
under the Confederation. In this connexion, we are led again to
the construction of the words of the Constitution, "the judicial
power shall extend," &c. If, as has been contended at the bar,
the term "extend" have a relative signification, and mean to widen
an existing power, it will then follow, that, as the confederation
gave an appellate power over State tribunals, the Constitution
enlarged or widened that appellate power to all the other cases in
which jurisdiction is given to the Courts of the United States. It
is not presumed that the learned counsel would choose to adopt such
a conclusion. It is further argued that no great
public mischief can result from a construction which shall limit
the appellate power of the United States to cases in their own
Courts, first because State judges are bound by an oath to support
the Constitution of the United States, and must be presumed to be
men of learning and integrity, and secondly because Congress must
have an unquestionable right to remove all cases within the scope
of the judicial power from the State courts to the courts of the
United States at any time before final judgment, though not after
final judgment. As to the first reason -- admitting that the judges
of the State courts are, and always will be, of as much learning,
integrity, and wisdom as those of the courts of the United States
(which we very cheerfully admit), it does not aid the argument. It
is manifest that the Constitution has proceeded upon a theory of
its own, and given or withheld Page
14 U. S. 347 powers according to the judgment of the
American people, by whom it was adopted. We can only construe its
powers, and cannot inquire into the policy or principles which
induced the grant of them. The Constitution has presumed (whether
rightly or wrongly we do not inquire) that State attachments, State
prejudices, State jealousies, and State interests might sometimes
obstruct or control, or be supposed to obstruct or control, the
regular administration of justice. Hence, in controversies between
States, between citizens of different States, between citizens
claiming grants under different States, between a State and its
citizens, or foreigners, and between citizens and foreigners, it
enables the parties, under the authority of Congress, to have the
controversies heard, tried, and determined before the national
tribunals. No other reason than that which has been stated can be
assigned why some, at least, of those cases should not have been
left to the cognizance of the State courts. In respect to the other
enumerated cases -- the cases arising under the Constitution, laws,
and treaties of the United States, cases affecting ambassadors and
other public ministers, and cases of admiralty and maritime
jurisdiction -- reasons of a higher and more extensive nature,
touching the safety, peace, and sovereignty of the nation, might
well justify a grant of exclusive jurisdiction. This is not all. A motive of another
kind, perfectly compatible with the most sincere respect for State
tribunals, might induce the grant of appellate power over their
decisions. That motive is the importance, and even necessity, of
uniformity of decisions Page
14 U. S. 348 throughout the whole United States upon
all subjects within the purview of the Constitution. Judges of
equal learning and integrity in different States might differently
interpret a statute or a treaty of the United States, or even the
Constitution itself; if there were no revising authority to control
these jarring and discordant judgments and harmonize them into
uniformity, the laws, the treaties, and the Constitution of the
United States would be different in different States, and might
perhaps never have precisely the same construction, obligation, or
efficacy in any two States. The public mischiefs that would attend
such a State of things would be truly deplorable, and it cannot be
believed that they could have escaped the enlightened convention
which formed the Constitution. What, indeed, might then have been
only prophecy has now become fact, and the appellate jurisdiction
must continue to be the only adequate remedy for such
evils. There is an additional consideration,
which is entitled to great weight. The Constitution of the United
States was designed for the common and equal benefit of all the
people of the United States. The judicial power was granted for the
same benign and salutary purposes. It was not to be exercised
exclusively for the benefit of parties who might be plaintiffs, and
would elect the national forum, but also for the protection of
defendants who might be entitled to try their rights, or assert
their privileges, before the same forum. Yet, if the construction
contended for be correct, it will follow that, as the plaintiff may
always elect the State court, the defendant Page
14 U. S. 349 may be deprived of all the security
which the Constitution intended in aid of his rights. Such a State
of things can in no respect be considered as giving equal rights.
To obviate this difficulty, we are referred to the power which it
is admitted Congress possess to remove suits from State courts to
the national Courts, and this forms the second ground upon which
the argument we are considering has been attempted to be
sustained. This power of removal is not to be
found in express terms in any part of the Constitution; if it be
given, it is only given by implication, as a power necessary and
proper to carry into effect some express power. The power of
removal is certainly not, in strictness of language; it presupposes
an exercise of original jurisdiction to have attached elsewhere.
The existence of this power of removal is familiar in courts acting
according to the course of the common law in criminal as well as
civil cases, and it is exercised before as well as after judgment.
But this is always deemed in both cases an exercise of appellate,
and not of original, jurisdiction. If, then, the right of removal
be included in the appellate jurisdiction, it is only because it is
one mode of exercising that power, and as Congress is not limited
by the Constitution to any particular mode or time of exercising
it, it may authorize a removal either before or after judgment. The
time, the process, and the manner must be subject to its absolute
legislative control. A writ of error is indeed but a process which
removes the record of one court to the possession of another
court, Page
14 U. S. 350 and enables the latter to inspect the
proceedings, and give such judgment as its own opinion of the law
and justice of the case may warrant. There is nothing in the nature
of the process which forbids it from being applied by the
legislature to interlocutory as well as final judgments. And if the
right of removal from State courts exist before judgment, because
it is included in the appellate power, it must for the same reason
exist after judgment. And if the appellate power by the
Constitution does not include cases pending in State courts, the
right of removal, which is but a mode of exercising that power,
cannot be applied to them. Precisely the same objections therefore
exist as to the right of removal before judgment as after, and both
must stand or fall together. Nor, indeed, would the force of the
arguments on either side materially vary if the right of removal
were an exercise of original jurisdiction. It would equally trench
upon the jurisdiction and independence of State
tribunals. The remedy, too, of removal of suits
would be utterly inadequate to the purposes of the Constitution if
it could act only on the parties, and not upon the State courts. In
respect to criminal prosecutions, the difficulty seems admitted to
be insurmountable; and in respect to civil suits, there would, in
many cases, be rights without corresponding remedies. If State
courts should deny the constitutionality of the authority to remove
suits from their cognizance, in what manner could they be compelled
to relinquish the jurisdiction? In respect to criminal cases, there
would at once be an end of all control, and the Page
14 U. S. 351 state decisions would be paramount to
the Constitution; and though, in civil suits, the courts of the
United States might act upon the parties, yet the State courts
might act in the same way, and this conflict of jurisdictions would
not only jeopardise private rights, but bring into imminent peril
the public interests. On the whole, the Court are of opinion
that the appellate power of the United States does extend to cases
pending in the State courts, and that the 25th section of the
judiciary act, which authorizes the exercise of this jurisdiction
in the specified cases by a writ of error, is supported by the
letter and spirit of the Constitution. We find no clause in that
instrument which limits this power, and we dare not interpose a
limitation where the people have not been disposed to create
one. Strong as this conclusion stands upon
the general language of the Constitution, it may still derive
support from other sources. It is an historical fact that this
exposition of the Constitution, extending its appellate power to
State courts, was, previous to its adoption, uniformly and publicly
avowed by its friends and admitted by its enemies as the basis of
their respective reasonings, both in and out of the State
conventions. It is an historical fact that, at the time when the
Judiciary Act was submitted to the deliberations of the first
Congress, composed, as it was, not only of men of great learning
and ability but of men who had acted a principal part in framing,
supporting, or opposing that Constitution, the same exposition was
explicitly declared and admitted by the friends and by the
opponents of that system. It Page
14 U. S. 352 is an historical fact that the Supreme
Court of the United States have, from time to time, sustained this
appellate jurisdiction in a great variety of cases brought from the
tribunals of many of the most important States in the Union, and
that no State tribunal has ever breathed a judicial doubt on the
subject, or declined to obey the mandate of the Supreme Court until
the present occasion. This weight of contemporaneous exposition by
all parties, this acquiescence of enlightened State courts, and
these judicial decisions of the Supreme Court through so long a
period do, as we think, place the doctrine upon a foundation of
authority which cannot be shaken without delivering over the
subject to perpetual and irremediable doubts. The next question which has been argued
is whether the case at bar be within the purview of the 25th
section of the Judiciary Act, so that this Court may rightfully
sustain the present writ of error. This section, stripped of
passages unimportant in this inquiry, enacts, in substance, that a
final judgment or decree in any suit in the highest court of law or
equity of a State, where is drawn in question the validity of a
treaty or statute of, or an authority excised under, the United
States, and the decision is against their validity, or where is
drawn in question the validity of a statute of, or an authority
exercised under, any State, on the ground of their being repugnant
to the Constitution, treaties, or laws, of the United States, and
the decision is in favour of such their validity, or of the
Constitution, or of a treaty or statute of, or commission held
under, the United Page
14 U. S. 353 States, and the decision is against the
title, right, privilege, or exemption specially set up or claimed
by either party under such clause of the said Constitution, treaty,
statute, or commission, may be reexamined and reversed or affirmed
in the Supreme Court of the United States upon a writ of error in
the same manner, and under the same regulations, and the writ shall
have the same effect, as if the judgment or decree complained of
had been rendered or passed in a Circuit Court, and the proceeding
upon the reversal shall also be the same, except that the Supreme
Court, instead of remanding the cause for a final decision, as
before provided, may, at their discretion, if the cause shall have
been once remanded before, proceed to a final decision of the same
and award execution. But no other error shall be assigned or
regarded as a ground of reversal in any such case as aforesaid,
than such as appears upon the face of the record, and immediately
respects the before-mentioned question of validity or construction
of the said Constitution, treaties, statutes, commissions, or
authorities in dispute. That the present writ of error is
founded upon a judgment of the Court below which drew in question
and denied the validity of a statute of the United States is
incontrovertible, for it is apparent upon the face of the record.
That this judgment is final upon the rights of the parties is
equally true, for if well founded, the former judgment of that
court was of conclusive authority, and the former judgment of this
Court utterly void. The decision was therefore equivalent to a
perpetual stay of proceedings upon Page
14 U. S. 354 the mandate, and a perpetual denial of
all the rights acquired under it. The case, then, falls directly
within the terms of the Act. It is a final judgment in a suit in a
State court denying the validity of a statute of the United States,
and unless a distinction can be made between proceedings under a
mandate and proceedings in an original suit, a writ of error is the
proper remedy to revise that judgment. In our opinion, no legal
distinction exists between the cases. In causes remanded to the Circuit
Courts, if the mandate be not correctly executed, a writ of error
or appeal has always been supposed to be a proper remedy, and has
been recognized as such in the former decisions of this Court. The
statute gives the same effect to writs of error from the judgments
of State courts as of the Circuit Courts, and in its terms provides
for proceedings where the same cause may be a second time brought
up on writ of error before the Supreme Court. There is no
limitation or description of the cases to which the second writ of
error may be applied, and it ought therefore to be coextensive with
the cases which fall within the mischiefs of the statute. It will
hardly be denied that this cause stands in that predicament; and if
so, then the appellate jurisdiction of this Court has rightfully
attached. But it is contended, that the former
judgment of this Court was rendered upon a case not within the
purview of this section of the Judicial Act, and that, as it was
pronounced by an incompetent jurisdiction, it was utterly void, and
cannot be a sufficient foundation Page
14 U. S. 355 to sustain any subsequent proceedings.
To this argument several answers may be given. In the first place,
it is not admitted that, upon this writ of error, the former record
is before us. The error now assigned is not in the former
proceedings, but in the judgment rendered upon the mandate issued
after the former judgment. The question now litigated is not upon
the construction of a treaty, but upon the constitutionality of a
statute of the United States, which is clearly within our
jurisdiction. In the next place, in ordinary cases a second writ of
error has never been supposed to draw in question the propriety of
the first judgment, and it is difficult to perceive how such a
proceeding could be sustained upon principle. A final judgment of
this Court is supposed to be conclusive upon the rights which it
decides, and no statute has provided any process by which this
Court can revise its own judgments. In several cases which have
been formerly adjudged in this Court, the same point was argued by
counsel, and expressly overruled. It was solemnly held that a final
judgment of this Court was conclusive upon the parties, and could
not be reexamined. In this case, however, from motives of
a public nature, we are entirely willing to wave all objections and
to go back and reexamine the question of jurisdiction as it stood
upon the record formerly in judgment. We have great confidence that
our jurisdiction will, on a careful examination, stand confirmed as
well upon principle as authority. It will be recollected that the
action was an ejectment for a parcel of land in the Northern Neck,
formerly belonging to Page
14 U. S. 356 Lord Fairfax. The original plaintiff
claimed the land under a patent granted to him by the State of
Virginia in 1789, under a title supposed to be vested in that State
by escheat or forfeiture. The original defendant claimed the land
as devisee under the will of Lord Fairfax. The parties agreed to a
special statement of facts in the nature of a special verdict, upon
which the District Court of Winchester, in 1793, gave a general
judgment for the defendant, which judgment was afterwards reversed
in 1810 by the Court of Appeals, and a general judgment was
rendered for the plaintiff; and from this last judgment a writ of
error was brought to the Supreme Court. The statement of facts
contained a regular deduction of the title of Lord Fairfax until
his death, in 1781, and also the title of his devisee. It also
contained a regular deduction of the title of the plaintiff, under
the State of Virginia, and further referred to the treaty of peace
of 1783, and to the acts of Virginia respecting the lands of Lord
Fairfax, and the supposed escheat or forfeiture thereof, as
component parts of the case. No facts disconnected with the titles
thus set up by the parties were alleged on either side. It is
apparent from this summary explanation that the title thus set up
by the plaintiff might be open to other objections; but the title
of the defendant was perfect and complete if it was protected by
the treaty of 1783. If therefore this Court had authority to
examine into the whole record, and to decide upon the legal
validity of the title of the defendant, as well as its application
to the treaty of peace, it would be a case within the express
purview Page
14 U. S. 357 of the 25th section of the Act, for
there was nothing in the record upon which the Court below could
have decided but upon the title as connected with the treaty; and
if the title was otherwise good, its sufficiency must have depended
altogether upon its protection under the treaty. Under such
circumstances it was strictly a suit where was drawn in question
the construction of a treaty, and the decision was against the
title specially set up or claimed by the defendant. It would fall,
then, within the very terms of the Act. The objection urged at the bar is that
this Court cannot inquire into the title, but simply into the
correctness of the construction put upon the treaty by the Court of
Appeals, and that their judgment is not reexaminable here unless it
appear on the face of the record that some construction was put
upon the treaty. If therefore that court might have decided the
case upon the invalidity of the title (and, non constat, that they did not) independent of the treaty, there is an end of
the appellate jurisdiction of this Court. In support of this
objection, much stress is laid upon the last clause of the section,
which declares that no other cause shall be regarded as a ground of
reversal than such as appears on the face of the record and
immediately respects the construction of the treaty, &c., in
dispute. If this be the true construction of the
section, it will be wholly inadequate for the purposes which it
professes to have in view, and may be evaded at pleasure. But we
see no reason for adopting this narrow construction; and there are
the strongest Page
14 U. S. 358 reasons against it founded upon the
words as well as the intent of the legislature. What is the case
for which the body of the section provides a remedy by writ of
error? The answer must be in the words of the section, a suit where
is drawn in question the construction of a treaty, and the decision
is against the title set up by the party. It is therefore the
decision against the title set up with reference to the treaty, and
not the mere abstract construction of the treaty itself, upon which
the statute intends to found the appellate jurisdiction. How,
indeed, can it be possible to decide whether a title be within the
protection of a treaty until it is ascertained what that title is,
and whether it have a legal validity? From the very necessity of
the case, there must be a preliminary inquiry into the existence
and structure of the title before the Court can construe the treaty
in reference to that title. If the Court below should decide, that
the title was bad, and therefore not protected by the treaty, must
not this Court have a power to decide the title to be good, and
therefore protected by the treaty? Is not the treaty, in both
instances, equally construed, and the title of the party, in
reference to the treaty, equally ascertained and decided? Nor does
the clause relied on in the objection impugn this construction. It
requires that the error upon which the Appellate Court is to decide
shall appear on the face of the record, and immediately respect the
questions before mentioned in the section. One of the questions is
as to the construction of a treaty upon a title specially set up by
a party, and every error that immediately respects Page
14 U. S. 359 that question must, of course, be
within the cognizance, of the Court. The title set up in this case
is apparent upon the face of the record, and immediately respects
the decision of that question; any error therefore in respect to
that title must be reexaminable, or the case could never be
presented to the Court. The restraining clause was manifestly
intended for a very different purpose. It was foreseen that the
parties might claim under various titles, and might assert various
defences altogether independent of each other. The Court might
admit or reject evidence applicable to one particular title, and
not to all, and, in such cases, it was the intention of Congress to
limit what would otherwise have unquestionably attached to the
Court, the right of revising all the points involved in the cause.
It therefore restrains this right to such errors as respect the
questions specified in the section; and, in this view, it has an
appropriate sense, consistent with the preceding clauses. We are
therefore satisfied that, upon principle, the case was rightfully
before us, and if the point were perfectly new, we should not
hesitate to assert the jurisdiction. But the point has been already decided
by this Court upon solemn argument. In Smith v.
The State of Maryland , 6 Cranch 286, precisely the
same objection was taken by counsel, and overruled by the unanimous
opinion of the Court. That case was, in some respects, stronger
than the present; for the court below decided expressly that the
party had no title, and therefore the treaty could not
operate Page 14 U. S. 360 upon it. This Court entered into an examination of that
question, and, being of the same opinion, affirmed the judgment.
There cannot, then, be an authority which could more completely
govern the present question.

															It has been asserted at the bar that, in point of fact, the
Court of Appeals did not decide either upon the treaty or the title
apparent upon the record, but upon a compromise made under an act
of the legislature of Virginia. If it be true (as we are informed)
that this was a private act, to take effect only upon a certain
condition, viz., the execution of a deed of release of
certain lands, which was matter in pais, it is somewhat
difficult to understand how the Court could take judicial
cognizance of the act or of the performance of the condition,
unless spread upon the record. At all events, we are bound to
consider that the Court did decide upon the facts actually before
them. The treaty of peace was not necessary to have been stated,
for it was the supreme law of the land, of which all Courts must
take notice. And at the time of the decision in the Court of
Appeals and in this Court, another treaty had intervened, which
attached itself to the title in controversy and, of course, must
have been the supreme law to govern the decision if it should be
found applicable to the case. It was in this view that this Court
did not deem it necessary to rest its former decision upon the
treaty of peace, believing that the title of the defendant was, at
all events, perfect under the treaty of 1794. Page 14 U. S. 361 The remaining questions respect more the practice than the
principles of this Court. The forms of process and the modes of
proceeding in the exercise of jurisdiction are, with few
exceptions, left by the Legislature to be regulated and changed as
this Court may, in its discretion, deem expedient. By a rule of
this Court, the return of a copy of a record of the proper court,
under the seal of that court, annexed to the writ of error, is
declared to be "a sufficient compliance with the mandate of the
writ." The record in this case is duly certified by the clerk of
the Court of Appeals and annexed to the writ of error. The
objection therefore which has been urged to the sufficiency of the
return cannot prevail.

															Another objection is that it does not appear that the judge who
granted the writ of error did, upon issuing the citation, take the
bond required by the 22d section of the Judiciary Act.

															We consider that provision as merely directory to the judge; and
that an omission does not avoid the writ of error. If any party be
prejudiced by the omission, this Court can grant him summary relief
by imposing such terms on the other party as, under all the
circumstances, may be legal and proper. But there is nothing in the
record by which we can judicially know whether a bond has been
taken or not, for the statute does not require the bond to be
returned to this Court, and it might with equal propriety be lodged
in the Court below, who would ordinarily execute the judgment to be
rendered on the writ. And the presumption of law is, until the
contrary Page 14 U. S. 362 appears, that every judge who signs a citation has obeyed the
injunctions of the Act.

															We have thus gone over all the principal questions in the cause,
and we deliver our judgment with entire confidence that it is
consistent with the Constitution and laws of the land.

															We have not thought it incumbent on us to give any opinion upon
the question, whether this Court have authority to issue a writ of
mandamus to the Court of Appeals to enforce the former judgments,
as we do not think it necessarily involved in the decision of this
cause.

															It is the opinion of the whole Court that the judgment of the
Court of Appeals of Virginia, rendered on the mandate in this
cause, be reversed, and the judgment of the District Court, held at
Winchester, be, and the same is hereby, affirmed.

															JOHNSON, J.

															It will be observed in this case that the Court disavows all
intention to decide on the right to issue compulsory process to the
State courts, thus leaving us, in my opinion, where the
Constitution and laws place us -- supreme over persons and cases as
far as our judicial powers extend, but not asserting any compulsory
control over the State tribunals.

															In this view I acquiesce in their opinion, but not altogether in
the reasoning or opinion of my brother who delivered it. Few minds
are accustomed to the same habit of thinking, and our conclusions
are most satisfactory to ourselves when arrived at in our own
way. Page 14 U. S. 363 I have another reason for expressing my opinion on this
occasion. I view this question as one of the most momentous
importance; as one which may affect, in its consequences, the
permanence of the American Union. It presents an instance of
collision between the judicial powers of the Union, and one of the
greatest States in the Union, on a point the most delicate and
difficult to be adjusted. On the one hand, the General Government
must cease to exist whenever it loses the power of protecting
itself in the exercise of its constitutional powers. Force, which
acts upon the physical powers of man, or judicial process, which
addresses itself to his moral principles or his fears, are the only
means to which governments can resort in the exercise of their
authority. The former is happily unknown to the genius of our
Constitution except as far as it shall be sanctioned by the latter,
but let the latter be obstructed in its progress by an opposition
which it cannot overcome or put by, and the resort must be to the
former, or government is no more.

															On the other hand, so firmly am I persuaded that the American
people can no longer enjoy the blessings of a free government
whenever the State sovereignties shall be prostrated at the feet of
the General Government, nor the proud consciousness of equality and
security any longer than the independence of judicial power shall
be maintained consecrated and intangible, that I could borrow the
language of a celebrated orator and exclaim, "I rejoice that
Virginia has resisted."

															Yet here I must claim the privilege of expressing Page 14 U. S. 364 my regret, that the opposition of the high and truly respected
tribunal of that State had not been marked with a little more
moderation. The only point necessary to be decided in the case then
before them was "whether they were bound to obey the mandate
emanating from this Court?" But, in the judgment entered on their
minutes, they have affirmed that the case was, in this Court, coram non judice, or, in other words, that this Court had
not jurisdiction over it.

															This is assuming a truly alarming latitude of judicial power.
Where is it to end? It is an acknowledged principle of, I believe,
every Court in the world that not only the decisions, but
everything done under the judicial process of courts not having
jurisdiction are, ipso facto, void. Are, then, the
judgments of this Court to be reviewed in every court of the Union?
and is every recovery of money, every change of property, that has
taken place under our process to be considered as null, void, and
tortious?

															We pretend not to more infallibility than other courts composed
of the same frail materials which compose this. It would be the
height of affectation to close our minds upon the recollection that
we have been extracted from the same seminaries in which originated
the learned men who preside over the State tribunals. But there is
one claim which we can with confidence assert in our own name upon
those tribunals -- the profound, uniform, and unaffected respect
which this Court has always exhibited for State decisions give us
strong pretensions to judicial comity. And another claim I may
assert, in the name of the American people; in this Court, every
State in Page 14 U. S. 365 the Union is represented; we are constituted by the voice of the
Union, and when decisions take place which nothing but a spirit to
give ground and harmonize can reconcile, ours is the superior claim
upon the comity of the State tribunals. It is the nature of the
human mind to press a favourite hypothesis too far, but magnanimity
will always be ready to sacrifice the pride of opinion to public
welfare.

															In the case before us, the collision has been, on our part,
wholly unsolicited. The exercise of this appellate jurisdiction
over the State decisions has long been acquiesced in, and when the
writ of error in this case was allowed by the President of the
Court of Appeals of Virginia, we were sanctioned in supposing that
we were to meet with the same acquiescence there. Had that Court
refused to grant the writ in the first instance, or had the
question of jurisdiction, or on the mode of exercising
jurisdiction, been made here originally, we should have been put on
our guard, and might have so modelled the process of the Court as
to strip it of the offensive form of a mandate. In this case it
might have been brought down to what probably the 25th section of
the Judiciary Act meant it should be, to-wit, an alternative
judgment either that the State court may finally proceed at its
option to carry into effect the judgment of this Court or, if it
declined doing so, that then this Court would proceed itself to
execute it. The language, sense, and operation of the 25th section
on this subject merit particular attention. In the preceding
section, which has relation to causes brought up by writ of error
from the Circuit Courts Page 14 U. S. 366 of the United States, this Court is instructed not to issue
executions, but to send a special mandate to the Circuit Court to
award execution thereupon. In case of the Circuit Court's refusal
to obey such mandate, there could be no doubt as to the ulterior
measures; compulsory process might, unquestionably, be resorted to.
Nor, indeed, was there any reason to suppose that they ever would
refuse, and therefore there is no provision made for authorizing
this Court to execute its own judgment in cases of that
description. But not so in cases brought up from the State courts;
the framers of that law plainly foresaw that the State courts might
refuse, and not being willing to leave ground for the implication
that compulsory process must be resorted to, because no specific
provision was made, they have provided the means, by authorizing
this Court, in case of reversal of the State decision, to execute
its own judgment. In case of reversal, only was this necessary,
for, in case of affirmance, this collision could not arise. It is
true that the words of this section are that this Court may, in
their discretion, proceed to execute its own judgment. But these
words were very properly put in, that it might not be made
imperative upon this Court to proceed indiscriminately in this way,
as it could only be necessary in case of the refusal of the State
courts, and this idea is fully confirmed by the words of the 13th
section, which restrict this Court in issuing the writ of mandamus,
so as to confine it expressly to those Courts which are constituted
by the United States. Page 14 U. S. 367 In this point of view, the Legislature is completely vindicated
from all intention to violate the independence of the State
judiciaries. Nor can this Court, with any more correctness, have
imputed to it similar intentions. The form of the mandate issued in
this case is that known to appellate tribunals, and used in the
ordinary cases of writs of error from the courts of the United
States. It will, perhaps, not be too much, in such cases, to expect
of those who are conversant in the forms, fictions, and
technicality of the law not to give the process of courts too
literal a construction. They should be considered with a view to
the ends they are intended to answer and the law and practice in
which they originate. In this view, the mandate was no more than a
mode of submitting to that court the option which the 25th section
holds out to them.

															Had the decision of the Court of Virginia been confined to the
point of their legal obligation to carry the judgment of this Court
into effect, I should have thought it unnecessary to make any
further observations in this cause. But we are called upon to
vindicate our general revising power, and its due exercise in this
particular case.

															Here, that I may not be charged with arguing upon a hypothetical
case, it is necessary to ascertain what the real question is which
this Court is now called to decide on.

															In doing this, it is necessary to do what, although, in the
abstract, of very questionable propriety, appears to be generally
acquiesced in, to-wit, to review the case as it originally came up
to this Court Page 14 U. S. 368 on the former writ of error. The cause, then, came up upon a
case stated between the parties, and under the practice of that
State, having the effect of a special verdict. The case stated
brings into view the treaty of peace with Great Britain, and then
proceeds to present the various laws of Virginia and the facts upon
which the parties found their respective titles. It then presents
no particular question, but refers generally to the law arising out
of the case. The original decision was obtained prior to the Treaty
of 1794, but before the case was adjudicated in this Court, the
Treaty of 1794 had been concluded.

															The difficulties of the case arise under the construction of the
25th section above alluded to, which, as far as it relates to this
case, is in these words:

															"A final judgment or decree in any suit, in the highest Court of
law or equity of a State in which a decision in the suit could be
had, . . . where is drawn in question the construction of any
clause of the Constitution or of a treaty, . . . and the decision
is against the title set up or claimed by either party under such
clause, may be reexamined and reversed, or affirmed. . . . But no
other error shall be assigned or regarded as a ground of reversal
in any such case as aforesaid than such as appears on the face of
the record and immediately respects the before-mentioned questions
of validity or construction of the said treaties,"

															&c.

															The first point decided under this state of the case was that,
the judgment being a part of the record, if that judgment was not
such as, upon that case, it ought to have been, it was an error
apparent on the Page 14 U. S. 369 face of the record. But it was contended that the case there
stated presented a number of points upon which the decision below
may have been founded, and that it did not therefore necessarily
appear to have been an error immediately respecting a question on
the construction of a treaty. But the Court held that, as the
reference was general to the law arising out of the case, if one
question arose which called for the construction of a treaty, and
the decision negatived the right set up under it, this Court will
reverse that decision, and that it is the duty of the party who
would avoid the inconvenience of this principle so to mould the
case as to obviate the ambiguity. And under this point arises the
question whether this Court can inquire into the title of the
party, or whether they are so restricted in their judicial powers
as to be confined to decide on the operation of a treaty upon a
title previously ascertained to exist.

															If there is any one point in the case on which an opinion may be
given with confidence, it is this, whether we consider the letter
of the statute, or the spirit, intent, or meaning, of the
Constitution and of the legislature, as expressed in the 27th
section, it is equally clear that the title is the primary object
to which the attention of the Court is called in every such case.
The words are, "and the decision be against the title," so set up,
not against the construction of the treaty contended for by the
party setting up the title. And how could it be otherwise? The
title may exist notwithstanding the decision of the State courts to
the contrary, and, in that case, the Page 14 U. S. 370 party is entitled to the benefits intended to be secured by the
treaty. The decision to his prejudice may have been the result of
those very errors, partialities, or defects in State jurisprudence
against which the Constitution intended to protect the individual.
And if the contrary doctrine be assumed, what is the consequence?
This Court may then be called upon to decide on a mere hypothetical
case -- to give a construction to a treaty without first deciding
whether there was any interest on which that treaty, whatever be
its proper construction, would operate. This difficulty was felt
and weighed in the case of Smith and the State of
Maryland, and that decision was founded upon the idea that
this Court was not thus restricted.

															But another difficulty presented itself: the Treaty of 1794 had
become the supreme law of the land since the judgment rendered in
the Court below. The defendant, who was at that time an alien, had
now become confirmed in his rights under that treaty. This would
have been no objection to the correctness of the original judgment.
Were we, then, at liberty to notice that treaty in rendering the
judgment of this Court?

															Having dissented from the opinion of this Court in the original
case on the question of title, this difficulty did not present
itself in my way in the view I then took of the case. But the
majority of this Court determined that, as a public law, the treaty
was a part of the law of every case depending in this Court; that,
as such, it was not necessary that it should be spread upon the
record, and that it was obligatory Page 14 U. S. 371 upon this Court, in rendering judgment upon this writ of error,
notwithstanding the original judgment may have been otherwise
unimpeachable. And to this opinion I yielded my hearty consent, for
it cannot be maintained that this Court is bound to give a judgment
unlawful at the time of rendering it, in consideration that the
same judgment would have been lawful at any prior time. What
judgment can now be lawfully rendered between the parties is the
question to which the attention of the Court is called. And if the
law which sanctioned the original judgment expire pending an
appeal, this Court has repeatedly reversed the judgment below,
although rendered whilst the law existed. So, too, if the plaintiff
in error die pending suit, and his land descend on an alien, it
cannot be contended that this Court will maintain the suit in right
of the judgment in favour of his ancestor, notwithstanding his
present disability.

															It must here be recollected that this is an action of ejectment.
If the term formally declared upon expires pending the action, the
Court will permit the plaintiff to amend by extending the term --
why? Because, although the right may have been in him at the
commencement of the suit, it has ceased before judgment, and,
without this amendment, he could not have judgment. But suppose the
suit were really instituted to obtain possession of a leasehold,
and the lease expire before judgment, would the Court permit the
party to amend in opposition to the right of the case? On the
contrary, if the term formally declared on were more extensive than
the Page 14 U. S. 372 lease in which the legal title was founded, could they give
judgment for more than costs? It must be recollected that, under
this judgment, a writ of restitution is the fruit of the law. This,
in its very nature, has relation to, and must be founded upon, a
present existing right at the time of judgment. And whatever be the
cause which takes this right away, the remedy must, in the reason
and nature of things, fall with it.

															When all these incidental points are disposed of, we find the
question finally reduced to this -- does the judicial power of the
United States extend to the revision of decisions of State courts
in cases arising under treaties? But in order to generalize the
question and present it in the true form in which it presents
itself in this case, we will inquire whether the Constitution
sanctions the exercise of a revising power over the decisions of
State tribunals in those cases to which the judicial power of the
United States extends?

															And here it appears to me that the great difficulty is on the
other side. That the real doubt is whether the State tribunals can
constitutionally exercise jurisdiction in any of the cases to which
the judicial power of the United States extends.

															Some cession of judicial power is contemplated by the third
article of the Constitution; that which is ceded can no longer be
retained. In one of the Circuit Courts of the United States, it has
been decided (with what correctness I will not say) that the
cession of a power to pass an uniform act of bankruptcy, although
not acted on by the United States, deprives Page 14 U. S. 373 the States of the power of passing laws to that effect. With
regard to the admiralty and maritime jurisdiction, it would be
difficult to prove that the States could resume it if the United
States should abolish the Courts vested with that jurisdiction; yet
it is blended with the other cases of jurisdiction in the second
section of the third article, and ceded in the same words. But it
is contended that the second section of the third article contains
no express cession of jurisdiction; that it only vests a power in
Congress to assume jurisdiction to the extent therein expressed.
And under this head arose the discussion on the construction proper
to be given to that article.

															On this part of the case, I shall not pause long. The rules of
construction, where the nature of the instrument is ascertained,
are familiar to every one. To me, the Constitution appears, in
every line of it, to be a contract which, in legal language, may be
denominated tripartite. The parties are the people, the States, and
the United States. It is returning in a circle to contend that it
professes to be the exclusive act of the people, for what have the
people done but to form this compact? That the States are
recognised as parties to it is evident from various passages, and
particularly that in which the United States guaranty to each State
a republican form of Government.

															The security and happiness of the whole was the object, and, to
prevent dissention and collision, each surrendered those powers
which might make them dangerous to each other. Well aware of the
sensitive Page 14 U. S. 374 irritability of sovereign States, where their wills or interests
clash, they placed themselves, with regard to each other, on the
footing of sovereigns upon the ocean, where power is mutually
conceded to act upon the individual, but the national vessel must
remain unviolated. And to remove all ground for jealousy and
complaint, they relinquish the privilege of being any longer the
exclusive arbiters of their own justice where the rights of others
come in question or the great interests of the whole may be
affected by those feelings, partialities, or prejudices, which they
meant to put down forever.

															Nor shall I enter into a minute discussion on the meaning of the
language of this section. I have seldom found much good result from
hypercritical severity in examining the distinct force of words.
Language is essentially defective in precision, more so than those
are aware of who are not in the habit of subjecting it to
philological analysis. In the case before us, for instance, a rigid
construction might be made which would annihilate the powers
intended to be ceded. The words are, "shall extend to;" now that
which extends to does not necessarily include in, so that the
circle may enlarge until it reaches the objects that limit it, and
yet not take them in. But the plain and obvious sense and meaning
of the word "shall," in this sentence, is in the future sense, and
has nothing imperative in it. The language of the framers of the
Constitution is "We are about forming a General Government -- when
that Government is formed, its powers shall extend," &c. I
therefore see nothing imperative in this clause, and certainly Page 14 U. S. 375 it would have been very unnecessary to use the word in that
sense; for, as there was no controlling power constituted, it would
only, if used in an imperative sense, have imposed a moral
obligation to act. But the same result arises from using it in a
future sense, and the Constitution everywhere assumes as a
postulate that wherever power is given, it will be used, or at
least used as far as the interests of the American people require
it, if not from the natural proneness of man to the exercise of
power, at least from a sense of duty and the obligation of an
oath.

															Nor can I see any difference in the effect of the words used in
this section, as to the scope of the jurisdiction of the United
States' courts over the cases of the first and second description
comprised in that section. "Shall extend to controversies," appears
to me as comprehensive in effect as "shall extend to all cases."
For if the judicial power extend "to controversies between citizen
and alien," &c., to what controversies of that description does
it not extend? If no case can be pointed out which is excepted, it
then extends to all controversies.

															But I will assume the construction as a sound one that the
cession of power to the General Government means no more than that
they may assume the exercise of it whenever they think it
advisable. It is clear that Congress have hitherto acted under that
impression, and my own opinion is in favour of its correctness. But
does it not then follow that the jurisdiction of the State court,
within the range ceded to the General Government, is permitted,
and Page 14 U. S. 376 may be withdrawn whenever Congress think proper to do so? As it
is a principle that everyone may renounce a right introduced for
his benefit, we will admit that, as Congress have not assumed such
jurisdiction, the State courts may constitutionally exercise
jurisdiction in such cases. Yet surely the general power to
withdraw the exercise of it includes in it the right to modify,
limit, and restrain that exercise.

															"This is my domain, put not your foot upon it; if you do, you
are subject to my laws; I have a right to exclude you altogether; I
have, then, a right to prescribe the terms of your admission to a
participation. As long as you conform to my laws, participate in
peace, but I reserve to myself the right of judging how far your
acts are conformable to my laws."

															Analogy, then, to the ordinary exercise of sovereign authority
would sustain the exercise of this controlling or revising
power.

															But it is argued that a power to assume jurisdiction to the
constitutional extent does not necessarily carry with it a right to
exercise appellate power over the State tribunals.

															This is a momentous questions, and one on which I shall reserve
myself uncommitted for each particular case as it shall occur. It
is enough, at present, to have shown that Congress has not
asserted, and this Court has not attempted, to exercise that kind
of authority in personam over the State courts which would
place them in the relation of an inferior responsible body without
their own acquiescence. And I have too much confidence in the State
tribunals to believe that a case ever will occur in which it will
be necessary Page 14 U. S. 377 for the General Government to assume a controlling power over
these tribunals. But is it difficult to suppose a case which will
call loudly for some remedy or restraint? Suppose a foreign
minister or an officer acting regularly under authority from the
United States, seized today, tried tomorrow, and hurried the next
day to execution. Such cases may occur, and have occurred, in other
countries. The angry vindictive passions of men have too often made
their way into judicial tribunals, and we cannot hope forever to
escape their baleful influence. In the case supposed, there ought
to be a power somewhere to restrain or punish, or the Union must be
dissolved. At present, the uncontrollable exercise of criminal
jurisdiction is most securely confided to the State tribunals. The
Courts of the United States are vested with no power to scrutinize
into the proceedings of the State courts in criminal cases; on the
contrary, the General Government has, in more than one instance,
exhibited their confidence by a wish to vest them with the
execution of their own penal law. And extreme, indeed, I flatter
myself, must be the case in which the General Government could ever
be induced to assert this right. If ever such a case should occur,
it will be time enough to decide upon their constitutional power to
do so.

															But we know that, by the 3d article of the Constitution,
judicial power, to a certain extent, is vested in the General
Government, and that, by the same instrument, power is given to
pass all laws necessary to carry into effect the provisions of the
Constitution. At present, it is only necessary to vindicate the Page 14 U. S. 378 laws which they have passed affecting civil cases pending in
State tribunals.

															In legislating on this subject, Congress, in the true spirit of
the Constitution, have proposed to secure to everyone the full
benefit of the Constitution without forcing any one necessarily
into the courts of the United States. With this view, in one class
of cases, they have not taken away absolutely from the State courts
all the cases to which their judicial power extends, but left it to
the plaintiff to bring his action there originally if he choose, or
to the defendant to force the plaintiff into the courts of the
United States where they have jurisdiction, and the former has
instituted his suit in the State courts. In this case, they have
not made it legal for the defendant to plead to the jurisdiction,
the effect of which would be to put an end to the plaintiff's suit
and oblige him, probably at great risk or expense, to institute a
new action; but the Act has given him a right to obtain an order
for a removal, on a petition to the State court, upon which the
cause, with all its existing advantages, is transferred to the
Circuit Court of the United States. This, I presume, can be subject
to no objection, as the Legislature has an unquestionable right to
make the ground of removal a ground of plea to the jurisdiction,
and the Court must then do no more than it is now called upon to
do, to-wit, give an order or a judgment, or call it what we will,
in favour of that defendant. And so far from asserting the
inferiority of the State tribunal, this act is rather that of a
superior, inasmuch as the Circuit Court of the United States
becomes bound, Page 14 U. S. 379 by that order, to take jurisdiction of the case. This method, so
much more unlikely to affect official delicacy than that which is
resorted to in the other class of cases, might perhaps have been
more happily applied to all the cases which the Legislature thought
it advisable to remove from the State courts. But the other class
of cases, in which the present is included, was proposed to be
provided for in a different manner. And here, again, the
Legislature of the Union evince their confidence in the State
tribunals, for they do not attempt to give original cognizance to
their own Circuit Courts of such cases, or to remove them by
petition and order; but still believing that their decisions will
be generally satisfactory, a writ of error is not given immediately
as a question within the jurisdiction of the United States shall
occur, but only in case the decision shall finally, in the Court of
the last resort, be against the title set up under the
Constitution, treaty, &c.

															In this act I can see nothing which amounts to an assertion of
the inferiority or dependence of the State tribunals. The presiding
judge of the State court is himself authorized to issue the writ of
error, if he will, and thus give jurisdiction to the Supreme Court;
and if he thinks proper to decline it, no compulsory process is
provided by law to oblige him. The party who imagines himself
aggrieved is then at liberty to apply to a judge of the United
States, who issues the writ of error, which (whatever the form) is,
in substance, no more than a mode of compelling the opposite party
to appear before this Court and maintain the legality of his
judgment obtained before the Page 14 U. S. 380 state tribunal. An exemplification of a record is the common
property of every one who chooses to apply and pay for it, and thus
the case and the parties are brought before us; and so far is the
court itself from being brought under the revising power of this
Court that nothing but the case, as presented by the record and
pleadings of the parties, is considered, and the opinions of the
court are never resorted to unless for the purpose of assisting
this Court in forming their own opinions.

															The absolute necessity that there was for Congress to exercise
something of a revising power over cases and parties in the State
courts will appear from this consideration.

															Suppose the whole extent of the judicial power of the United
States vested in their own courts, yet such a provision would not
answer all the ends of the Constitution, for two reasons:

															1st. Although the plaintiff may, in such case, have the full
benefit of the Constitution extended to him, yet the defendant
would not, as the plaintiff might force him into the court of the
State at his election.

															2dly. Supposing it possible so to legislate as to give the
courts of the United States original jurisdiction in all cases
arising under the Constitution, laws, &c., in the words of the
2d section of the 3d article (a point on which I have some doubt,
and which in time might perhaps, under some quo minus fiction or a willing construction, greatly accumulate the
jurisdiction of those Courts), yet a very large class of cases
would remain unprovided for. Incidental questions would often
arise, and as a Court of competent Page 14 U. S. 381 jurisdiction in the principal case must decide all such
questions, whatever laws they arise under, endless might be the
diversity of decisions throughout the Union upon the Constitution,
treaties, and laws of the United States, a subject on which the
tranquillity of the Union, internally and externally, may
materially depend.

															I should feel the more hesitation in adopting the opinions which
I express in this case were I not firmly convinced that they are
practical, and may be acted upon without compromitting the harmony
of the Union or bringing humility upon the State tribunals. God
forbid that the judicial power in these States should ever for a
moment, even in its humblest departments, feel a doubt of its own
independence. Whilst adjudicating on a subject which the laws of
the country assign finally to the revising power of another
tribunal, it can feel no such doubt. An anxiety to do justice is
ever relieved by the knowledge that what we do is not final between
the parties. And no sense of dependence can be felt from the
knowledge that the parties, not the Court, may be summoned before
another tribunal. With this view, by means of laws, avoiding
judgments obtained in the State courts in cases over which Congress
has constitutionally assumed jurisdiction, and inflicting penalties
on parties who shall contumaciously persist in infringing the
constitutional rights of others -- under a liberal extension of the
writ of injunction and the habeas corpus ad subjiciendum, I flatter myself that the full extent of the constitutional
revising power may be secured to the United States, and the Page 14 U. S. 382 benefits of it to the individual, without ever resorting to
compulsory or restrictive process upon the State tribunals; a right
which, I repeat again, Congress has not asserted, nor has this
Court asserted, nor does there appear any necessity for
asserting.

															The remaining points in the case being mere questions of
practice, I shall make no remarks upon them.

															Judgment affirmed.

Summary: In Martin v. Hunter's Lessee (1816), the U.S. Supreme Court asserted its authority to review state court decisions involving federal law, establishing the principle of federal judicial supremacy. The case involved a land dispute in Virginia, where the state Court of Appeals refused to follow the Supreme Court's mandate, arguing that the Supreme Court's appellate jurisdiction did not extend to state courts. The Supreme Court asserted its power of judicial review, stating that it had the final say in interpreting the Constitution and that state courts were bound by its decisions. This case solidified the role of the Supreme Court as the ultimate arbiter of federal law and the Constitution, ensuring uniformity in the interpretation and application of federal law across state courts.