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circumstances, to give effect to the judicial power, 11 must be construed to be exclusive; and this, not only when the very question should arise directly; but when it should arise incidentally, in cases pending in State courts. This construction would abridge the jurisdiction of such courts far more, than has been ever contemplated in any act of Congress.

§ 367. But it is plain, that the framers of the Consti tution did contemplate, that cases within the judicial cog nizance of the United States, not only might, but woule 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 judgement. They were not to decide, merely 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."

§ 368. 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 m 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 which 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 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.

§ 369. 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 be brought before State tribunals. It was foreseen, that, in the exercise of their ordinary urisdiction, 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 he judicial power, by the very terms of the Constitution, s to extend. It cannot extend, by original jurisdiction, if that has 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 pot 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 u on all others within the purview of the Constitution.

§370. It is manifest, that the Constitution has proceeded upon a theory of its own, and given and withheld powers according to the judgement of the American peo ple, by whom it was adopted. We can only construe its powers, and cannot here inquire into the policy, or princi ples, which induced the grant of them. The Constitution has presumed, (whether rightly or wrongly, we do not here 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; be tween 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 these cases should not have been left to the cognizance of the State courts. In respect to the other enumerated cases,-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.

§ 371. 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 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 judgements, and har monize them into uniformity, the laws, the treaties, and the Constitution, of the United States, would be lifferent

in different States; and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two States. The public mischiefs, which 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 Constitu tion. What, indeed, might then have been only proph ecy, has now become fact; and the appellate jurisdiction must continue to be the only adequate remedy for such evils.

§ 372. 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 purpose. 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 appellate jurisdiction does not extend to such cases, it will follow, that, as the plaintiff may always elect the State courts, the defendant 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.

§ 373. 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, supportng, or opposing, that Constitution, the same exposition was exp icitly declared, and admitted by the friends, and

by the opponents of that system. It 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 ever breathed a judicial doubt on the subject, or declined to obey the mandate of the Supreme Court, until a comparatively recent period. 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, places the doctrine upon a foundation of authority, which cannot be shaken, without delivering over the subject tc perpetual, and irremediable doubts.

$374, It would be difficult, and perhaps not desirable, to lay down any general rules in relation to the cases, in which the judicial power of the courts of the United States is exclusive of the State courts, or in which it may be made so by Congress, until they shall be settled by some positive adjudication of the Supreme Court. That there are some cases, in which that power is exclusive, cannot well be doubted; that there are others, in which it may be made so by Congress, admits of as little doubt; and that, in other cases, it is concurrent in the State courts, at least until Congress shall have passed some act, excluding the concurrent jurisdiction, will scarcely be denied. It seems to be admitted, that the jurisdiction of the courts of the United States is, or at least may be, made exclusive in all cases arising under the Constitution, laws, and treaties, of the United States; in all cases affecting ambassadors, other public ministers, and consuls; in all cases of admiralty and maritime jurisdiction, (which are exclusive in their character;) n controversies, to which the United States shall be a party; in controversies between two or more States; in controversies between a State and citizens of another State; and in controversies betwee. State and foreign States, citizens, or subjects. And it is only in those cases, where, previous to the constitution, State tribunals possessed jurisdiction, independent of National authority, that they can now con stitutionally exercise a concurrent jurisdiction.


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