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375. In the exercise of the jurisdiction confided respectively to the State courts, and those courts of the United States, (where the latter have not appellate jurisdiction,) it is plain, that neither can have any right to interfere with, or control, the operations of the other. It has accordingly been settled, that no State court can issue an injunction upon any judgement in a court of the United States; the latter having an exclusive authority over its own judgements and proceedings. Nor can any State court, or any State legislature, annul the judgements of the courts of the United States, or destroy the rights ac quired under them; nor in any manner deprive the Su preme Court of its appellate jurisdiction; nor in any manner interfere with, or control, the process (whether mesne or final) of the courts of the United States; nor prescribe the rules or forms of proceeding; nor affect a process in the courts of the United States; nor issue a mandamus to an officer of the United States, to compel him to perform duties, devolved on him by the laws of the United States. And, although writs of habeas corpus have been issued by State judges, and State courts, in cases where the party has been in custody, under the authority of process of the courts of the United States, there has been considerable diversity of opinion, whether such an exercise of authority is constitutional; and it yet remains to be decided, whether it can be maintained.

§ 376. On the other hand, the National courts have no authority (in cases not within the appellate jurisdiction of the United States) to issue injunctions to judgements in the State courts; or in any other manner to interfere with their jurisdiction or proceedings.

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§ 377. Having disposed of these points, we may again recur to the language of the Constitution, for the purpose of some further illustrations. The language is, that “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."

§ 378. In the first place, it may not be without use to ascertain, what is here meant by appellate jurisdiction; and what is the mode, in which it may be exercised. The

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essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. In reference to judicial tribunals, an appellate jurisdiction, therefore, necessarily implies, that the subject matter has been already instituted in, and acted upon by, some other court, whose judgement or proceedings are to be revised. This appellate jurisdiction may be exercised in a variety of forms, and indeed in any form, which the Legislature may choose to prescribe; but, still, the substance must exist, before the form can be applied to it. To operate at all, then, under the Constitution of the United States, it is not sufficient, that there has been a decision by some officer, or Department, of the United States; but it must be by one clothed with judicial authority, and acting in a judicial capacity. A power, therefore, conferred by Congress on the Supreme Court, to issue a mandamus to public officers of the United States generally, is not warranted by the Constitution; for it is, in effect, under such circumstances, an exercise of original jurisdiction. But where the object is to revise a judicial proceeding, the mode is wholly immaterial; and a writ of habeas corpus, or of mandamus, a writ of error, or an appeal, may be used, as the Legislature may prescribe.

§ 379. The most usual modes of exercising appellate jurisdiction, at least, those, which are most known in the United States, are, by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin, and removes a cause entirely, subjecting the fact, as well as the law, to a review and a re-trial. A writ of error is a process of common law origin; and it removes nothing for re-examination, but the law. The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury.

§ 380. It is observable, that the language of the Con stitution is, that "the Supreme Court shall have appellate jurisdiction, both as to law and fact." This provision was a subject of no small alarm and misconstruction at the time of the adoption of the Constitution, as it was sup

posed to confer on the Supreme Court, in the exercise of its appellate jurisdiction, the power to review the decision of a jury in mere matters of fact; and thus, in effect, to destroy the validity of their verdict, and to reduce to a mere form, the right of a trial by jury in civil cases. The objection was at once seized hold of by the enemies of the Constitution; and it was pressed with an urgency and zeal, which were well nigh preventing its ratification. There is certainly some foundation, in the ambiguity of the language, to justify an interpretation, that such a review might constitutionally be within the reach of the appellate power, if Congress should choose to carry it to that extreme latitude. But, practically speaking, there was not the slightest danger, that Congress would ever adopt such a course, even if it were within their constitutional authority; since it would be at variance with all the habits, feelings, and institutions, of the whole country. At least, it might be affirmed, that Congress would scarcely take such a step, until the people were prepared to surrender all the great securities of their civil, as well as of their political rights and liberties; and in such an event, the retaining of the trial by jury would be a mere mockery. The real object of the provision was, to retain the power of reviewing the fact, as well as the law, in cases of equity, and of admiralty, and maritime jurisdiction. And the manner, in which it is expressed, was probably occasioned by the desire to avoid the introduction of the subject of a trial by jury, in civil cases, upon which the Conven tion were greatly divided in opinion.

§ 381. These views, however reasonable they may seem to considerate minds, did not wholly satisfy the popular opinion; and as the objection had a vast influence upon public opinion, and amendments were proposed by various State conventions on this subject, Congress, at its first session, under the guidance of the friends of the Constitution, proposed an amendment, which was ratified by the people, and is now incorporated into the Constitution. It is in these words: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of a trial by jury shall be preserved. And no fact,

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tried by a jury, shall be otherwise re-examined in of the United States, than according to the rules of the common law." This amendment completely struck down the objection; and has secured the right of a trial by jury, .n civil cases, in the fullest latitude of the common law. It is a most important and valuable amendment; and places upon the high ground of constitutional right, the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all persons to be essential to political and civil liberty.

§ 382. The appellate jurisdiction is to be, "with such exceptions, and under such regulations, as the Congress shall prescribe." But, here, a question is presented upon the construction of the Constitution, whether the

ppellate jurisdiction attaches to the Supreme Court, subject to be withdrawn and modified by Congress; or, whether an act of Congress is necessary to confer the jurisdiction upon the court. If the former be the true construction, then the entire appellate jurisdiction, if Congress should make no exceptions or regulations, would attach, by force of the terms, to the Supreme Court. If the latter, then, notwithstanding the imperative language of the Constitution, the Supreme Court is lifeless, until Congress have conferred power on it. And if Congress may confer power, they may repeal it. So that the whole efficiency of the judicial power is left by the Constitution wholly unprotected and inert, if Congress shall refrain to act. There is certainly very strong ground to maintain, that the language of the Constitution meant to confer the appellate jurisdiction absolutely on the Supreme Court, independent of any action by Congress; and to require this action to divest or regulate it. The language, as to the original jurisdiction of the Supreme Court, admits of no doubt. It confers it without any action of Congress. Why should not the same language, as to the appellate jurisdiction, have the same interpretation? It leaves the power of Congress complete, to make exceptions and regulations; but it leaves nothing to their inaction. This construction was asserted in argument at an early period

of the Constitution, and it has since been deliberately con firmed by the Supreme Court.

§383. The functions of the judges of the courts of the United States are strictly and exclusively judicial They cannot, therefore, be called upon to advise the President in any Executive measures; or to give extra judicial interpretations of law; or to act as commissioner in cases of pensions, or other like proceedings.

CHAPTER XXXII.

Trial by Jury, and its Incidents.-Definition of Trea

son.

§ 384. THE next clause of the second section of the third article is, "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State, where the said crimes shall have been committed. But when not committed within any State, the trial shall be at such place or places, as the Congress may by law have directed." It seems hardly necessary, in this place, to expatiate upon the antiquity, or importance, of the trial by jury in criminal cases. It was, from very early times, insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties, and watched with an unceasing jealousy and solicitude. The right constitutes a fundamental article of Magna Charta, in which it is declared, "that no man shall be arrested, nor imprisoned, nor banished, nor deprived of life, &c., but by the judgement of his peers, or by the law of the land." The judgement of his peers here alluded to, and commonly called, in the quaint language of former times, a trial per pais, or trial by the country, is the trial by a jury, who are called the peers of the party accused, being of the like condition and equality in the state. When our more immediate ancestors removed to Ameri. ca, they brought this great privilege with them, as their birthright and inheritance, as a part of that admirable

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