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 : 4iThe court is unanimously of opinion, that the ■ appéllate 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
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 úp,on to review, and the entire deference which we entertain for the learning and ability of that court, add much t© 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 cothpetent to the people to invest the general go
These deductions do not rest upon general reasoning, plain and obvious as they seem to be. They have bejen 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"
The constitution unavoidably deals in general language. It did not suit the purposes of the peo-r pie, in framing this great charter of our liberties, to provide for minute specifications of its powers, cr to declare the means by which those powers should be carried into execution. It was foreseen that this would bé 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 systern itself. Hence its powers are expressed in general terms, leaving to the legislature, , from time to
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 thé 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 samé 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 áll cáses affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have
original jurisdiction.
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 \yas 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 tlie 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 cqngress 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
The same expression, “ shall be vested,” occurs in other parts' of the constitution, in defining the powers of the other co-ordinate bránchcs of the government. The first article declares that. “ all legislative powers herein granted .s/mü
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
If, then, it is a duty of congress to vest the judicial power of th'd 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, arid 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 count's, is a question of some difficulty. If congress may lawfully omit to establish inferior courts, it might follow, that in some of the-enumerated' cáses 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
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 those 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 reasons 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
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 insupport-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 regulation^, as the-congress shall make.” The very exception jhere shows that the framers of the constitu.tion 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.
Other clauses in the constitution might be brought in aid of this construction; but a minute examination, of them caniiot be necessary, and would oocupy 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 óf pub-: lie dutyv 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 he 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 m 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 -;ases 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 fee observed that there áre two classes of cases enu
The vital importance of all the cases enumerated in the first class fó the national sovereignty, might warrant such a distinction. In the first place, as to cases arriving under the constitution, láws, and treaties of the United States. - Here the state courts
A different policy might weh be adopted in reference to the second class of cases ; for although it might be fit that the ju ■’icial power should extend
We do not, however, profess’ to place -any implicit reliance upon the ' distinction which has here been stated- and endeavoured tube 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
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 extsnt of tne 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
As,' then, by the terras of- the constitution, the appellate jurisdiction is not. limited as to the supreme cbúrt, 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 extendió
all cases"
&c., and “ in all other cases befóte 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 ease, 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
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,couid.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
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, any thing 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
:A moment’s consideration will show us the' necessity and propriety of tipis provision in eases where the jurisdiction of thé 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 pf such contract, whieh 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 tp 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
apt of the state, must not’ the state court, in the exercise of a jurisdiction which has already rightfully attached, have a
It> must, therefore, be conceded that the constitution not only contemplated, but meant tb 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
It is a mistake thatrthe constitution was not designed to operate upon states, in. their corporate capacities. ' It is crowded with provisions which restrain of 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 ex,ercised, it cannpt.be correctly asserted that the constitution does not act upon the states. 'Ihe language of the constitution is also imperative upon thg 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 supercede the laws which may be passed by state legislatures.- When, therefore, the states , are stripped of some of the highest attributes óf sovereignty, and the same are given to the United States; when the legislatures'of the states are, in some
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 co-ordinate 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 restric
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. In 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 státe 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 pur national rights might otherwise be compromitted, and our national peace been dángered. 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 lesa
In this connexion we are led again to the construe- ^ tion of the words of tile constitution, the judicial power shall extend,” &c. If, as has been contended at the bar, the term “ extend” have ¿ 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 10 all the other cases in which jurisdiction is .given to the courts of the United States. It is not.presumed that the Íearnéd counsel would ehtioSe to adopt such a Conclusion.
It is further argued, that rió 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 ari oathuto support the constitution of the United States, arid must be presumed to be riien of learning and integrity
<;
and, sécondly, because congress must have an unquestionable right to remove all cases within fhe scope of the judicial power from the state .courts tp 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, arid always will be, of as iriuch 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 proceedéd upon a theory of its'own, and given or with
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
óf deci
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 peopíé of the United States. The judicial power was granted for the same benign and salutary purposes. It was not to be-exercised ex* clusivély for t]ie benefit, of parties who might be •plaintiffs, and would elect tlje national forum, bui also for the- protection of defendants who might be entitled to try their rights, or assert, their priviliges, before the same forum.- Yet, if the construction contended for be correct, it will follovy, that as the plaintiff may always elect the state court,- the de
. 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 incourts 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 casés 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,
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 insurmountable5 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 he an énd of all control, and the
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 ap~ pel late power to state courts, was, previous to its adoption, uniformly and publicly, avowed b) its friends, and admitted by its enemies, as the basis of their respective reasonings, both in ánd out of the state conventions. It is • an historical fact, that at the time when the judiciary act was submitted te> the deliberation's of the first congress, composed,, as- if 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
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
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 pf 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
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 coutt was rendered upon a case not within the purview of this section ol the judicial act, and that as it was pronounced by an incompetent jurisdiction, it tvas utterly roid, and cannot be a sufficient founds
In this case, however, from motives of a public nature, we are entirely willing to wave all objections,- and to go back and re-examine 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. If will be recollected that the action was an ejectment for a parcel of land in the Northern Neck,
formerly
belonging to
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 re-examinable Lert, unless it appear on- the face- of the record that some construction was put upon the treaty. If, therefore, that court might. hav,e 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 he 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 wThich it professes to have in view, and may be evaded at pleasure. But wc see no reason for adopting this harroiv construction; and there are the strongest
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, (
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 « private act, ter take effect only upon a certain condition, viz. thé 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 oftheact, 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 beén stated, for it was the supreme law of the land, of which, all courts must take notice. And at the time of thb 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 r^st its former decision upon the treaty of peace, believing that the title of the defendant was, at all events, perfect ugder the treaty , of 1794.
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 riot 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 whiph 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 Jaw is, until the con
We have thus gone over all .the ’principal questions in the cause, arid we'deliver oin* 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 .mandapius to'the court of appeals to enforce 'the former judgments, as we do not think itnecessarily involved in the decision of this cause.
It is the opinion, of the whole, court, that the judgT ment of the court of appeals of Virginia, rendered on the mandate in this cause; be révérsed, and the judgment o' the district court, held at Winchester, be, and the. same is hereby affirmed.
Johnson,. J. It- will be observed in this case, that .the óourt disavows all intention to decide on the right'to issue, compulsory process to the state courts; thus leaving us, in my opinion, where the constituition arid 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. New minds are accustomed to the same habit of thinking, and our conclusions are most satisfactory to ourselves when arrived at in. pur own way.
On the other hand, so firmly am I persuaded, that the American people can no longer enjoy the blessings of a free goveraraeiit, 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» snail 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 l must claim the privilege of expressing
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 every thing 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
In the case befpre 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, 'wps allowed
by the president of the court of appeals of Virginia,
vVe were sanctioned in supposing that we were to meet with' the ,sanie acquiescence there. Had that court refused to grant the writ in .the .first instance, or had the question'of jurisdiction, or oh the mode, of exercising, jurisdiction, been made here originally, wp 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 meayt 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 tljis subject, merit particular attention. In the preceding section, which has relation to causes brought up by writ of error from the circuit courts
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 cáuse. 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
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 pf 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 re-exatnined and. reversed, or affirméd.”. “ But no other error shall be assigned or regarded as á ground of reversal in kny such case as aforesaid, than such as appears on the face of thé record, and immediately respects the before-mentioned questions of Validity or construction of the said treaties,” &o.
The first point decided under.this state case was, that the judgment being a part of the record, if that judgment was not such as, upon that case, it -Ho-ht to have been, it was an error apparent on the
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 th-? constitution and of the legislature, as expressed in the 27th section, it is equally dear that the title is the primary object to which the attention of the court is called in every such case. The words are, “and thú 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
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 lavr of every case depending in this
court;
that, qs such, it was not necessary that it should be spread upon the record, and that it was obligatory
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 óf 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
When all these incidental points aré disposed ,of, we find the question finally reduced to this- — does the judicial power of the United States exteiid 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 th»- 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, dc
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 disscrdon and collision, each surrendered those powers which might make them dangerous to each other. Well aware of the sensi
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 certain!)
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 States5 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 “ sljalh 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 ex* cepted, 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 chink 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
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 á momentous question, and pne 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 toó much confidence in the state tribunals to believe .that a case ever will occur in which it will bé necessary
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
. . In legislating on this subject, congress, in the true spirit
of
the Constitution, have proposed to secure fa every one the full benefit of the constitution, without forcing any one necessarily into the courts of ■the United States. With this view, ifi 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 awemoval, 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 pleá 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,
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 thesupreine court : and if he thinks, proper to decline it, no compulsory process is provid ed 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
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 conbts, 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 hjs election.
2dly. Supposing it possible so tp- legislate as • to give the courts of the United States original jurisdiction in all cases avising 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 constrúction, greatly accumulate the jurisdiction of tiróse courts,) yet a very large class of cases would remain unprovided for. incidental questions would ofteri arise, and as a court of competent
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 harmpny 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. Ah anxiety to do justice is ever relieved by the knowledge that what we do is not final bet weep 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 coürts 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 libéral extension of thé writ of injunction and the
habeas corpus ad
subjiciendum, I flatter myself that the full extent of the constitutional revising power may be sefcured to the United. States, and tile
The remaining points in the case being mere questions of practice, I shall make no remarks upon them.
Judgment affirmed.