1821. Cohens V. Virginia. This the constitution; it was necessary Congress should possess it, for self-preservation; and, even in these cases, they have no power to prescribe to the State legislature a legislative act. This government cannot prescribe an executive act to the executive of a State, a legislative act to the legislature of a State, or (as I contend) a judicial act to the judiciary of a State. If the constitution does not confer on the judiciary of the United States the appellate jurisdiction claimed, it is not enough that the act of Congress may purport to confer it. The framers of the judiciary act manifested a distrust of their authority; they seem to have foreseen that the State Courts would refuse to give judgment according to the opinions of the Supreme Court. The case decided in the State Court was not a case in law arising under the laws of the United States. It was a prosecution under a law of the State. Should a mandate issue in this case, and obedience be refused, this Court will give judgment on a prosecution for violating State laws. If the case decided in the State Court be regarded as a case in which a State was a party, the Supreme Court has, by the constitution, original, and not appellate jurisdiction. The appellate jurisdiction of the Supreme Court is only conferred in cases other than those whereof the Supreme Court has original jurisdiction. Who has original jurisdiction of those other cases? The inferior federal Courts. Some of those other cases are those of admiralty and maritime jurisdiction, of which, certainly, it was not in tended that the original jurisdiction should be in the State Courts. If this writ of error be considered to be a suit in law, this Court has no jurisdiction: for it is prosecuted against a State; and, by the 11th amendment to the constitution, no suit in law can be prosecuted by foreigners or citizens of another State against one of the United States. The amendment prohibits such suits commenced or prosecuted against a State. This seems expressly to extend to this writ of error, which, although not a suit in law commenced against a State, is a suit in law prosecuted against a State. This amendment, denying to foreigners and citizens of other States the right to prosecute a suit against a State, and being silent as to citizens of the same State, affords a proof that the federal Courts never had jurisdiction of a suit between a citizen and the State whereof he is a citizen: for it cannot be presumed, that a right to prosecute a suit against a State would be taken from a foreigner or citizen of another State, and left to citizens of the same State. A release of all suits is a release of a writ of error ;a and, consequently, a writ of error is "a suit in law," and cannot be prosecuted against a State. The appellate jurisdiction conferred by the constitution on the Supreme Court, is merely authority to revise the decisions of inferior Courts of the United States. Where the Supreme Court have not original jurisdiction, they have, by the constitution, appellate jurisdiction as to law and fact. Could it have a Latch. 110. 2 Bac, Abr. 497. 1 Roll. Abr. 788. 1821. Cohens V. Virginia. 1821. Cohens v. Virginia. been intended to confer a power to re-examine decisions in the State Courts; to try again the facts tried in those Courts, and this even in criminal prosecutions? Surely not. Appellate jurisdiction signifies judicial power over the decisions of the inferior tribunals of the same sovereignty. Congress have power to "constitute" such tribunals; and it is made their duty to "ordain and establish" such. The framers of the constitution intended to create a new judiciary, to exercise the judicial power of a new government, unconnected with the judiciaries of the several States. Congress is not authorized to make the Supreme Court, or any other Court of a State, an inferior Court. They do not "constitute" such a Court; they do not "ordain and establish it." The judges cannot be impeached before the Senate of the United States; they receive no compensation for their services from the United States; and, consequently, cannot be required to render any services to the United States. The inferior Courts, spoken of in the constitution, are manifestly to be held by federal judges. The judicial power to be exercised, is the judicial power of the United States; the errors to be corrected are those of that judicial power; and there can be no inferior Courts exercising the judicial power of the United States, other than those constituted, ordained, and established by Congress. The Supreme Court has appellate jurisdiction in cases to which the judicial power of the United States shall extend; but unless the original jurisdiction has extended to the case, the appellate juris diction can never reach it. The original jurisdiction alone is qualified to lay hold of it. If it shall be deemed proper to extend the judicial power to all the cases enumerated, the original jurisdiction must be thus extended. The Court exercising appellate jurisdiction, must not only have jurisdiction over such a cause, and such parties, but it must have jurisdiction over the tribunal before which the cause has been depending. Judicial power, includes power to decide, and power to enforce the decision. This Court has rather disclaimed power to enforce its mandate to the Supreme Court of a State. If you have not power to compel State tribunals to obey your decisions, you have no appellate jurisdiction in cases depending before them. Suppose it should be found necessary to direct a new trial in a cause removed from a State Court, and that the State Court refuses to obey your mandate; where shall the new trial be had? If you have appellate jurisdiction in a case decided by a State Court, you must have power to make your decisions a part of the record of the State Court. The Constitution provides that full faith and credit shall be given in each State, to the judicial proceedings of every other State. A plaintiff recovers in the Courts of Virginia judgment for a sum of money; you reverse the judgment; but, the State Court does not record your decision ; the plaintiff obtains a copy of the record of the judicial proceedings of the State, and presents them as evidence before the Court of another State; he must recover, notwithstanding your judgment, which 1821. Cohens V. Virginia. 1821, Cohens Virginia. has not been made a part of that record, to which full faith and credit is to be given. To give jurisdiction over the State Courts, it is not sufficient that the constitution has said that the Supreme Court shall have appellate jurisdiction; for that will be understood to signify, jurisdiction over inferior federal Courts. To confer the jurisdiction claimed, the constitution should have said, that the judicial power of the United States shall have appellate jurisdiction over the judicial power of the several States. If it had been intended to give appellate jurisdiction over the State Courts, the proper expressions would have been used. There is not a word in the constitution that goes to set up the federal judiciary above the state judiciary. The state judiciary is not once named. The subjects spoken of are the judicial power of the United States; the supreme and inferior Courts of the United States; and the original and appellate jurisdiction of the Supreme Court. Appellate jurisdiction is not granted to the judicial power of the United States. It is granted to the Supreme Court of the United States. Federal judicial power is authorized to correct the errors of federal judicial power. I contend, that in no case can the federal Courts revise the decisions of the State Courts; no such power is expressly given by the constitution: and can it be believed that it was meant that the greatest, the most consolidating of all the powers of this Government, should pass by an unnecessary implication? The States have granted to the United States power to pronounce their own judgment in certain cases; but they have not |