1821. Cohens V. Virginia. those cases in which jurisdiction is given, because a State is a party; and to include in the second, those in which jurisdiction is given, because the case arises under the constitution or a law. This reasonable construction is rendered necessary by other considerations. That the constitution or a law of the United States, is involved in a case, and makes a part of it, may appear in the progress of a cause, in which the Courts of the Union, but for that circumstance, would have no jurisdiction, and which of consequence could not originate in the Supreme Court. In such a case, the jurisdiction can be exercised only in its appellate form. To deny its exercise in this form is to deny its existence, and would be to construe a clause, dividing the power of the Supreme Court, in such manner, as in a considerable degree to defeat the power itself. All must perceive, that this construction can be justified only where it is absolutely necessary. We do not think the article under consideration presents that necessity. It is observable, that in this distributive clause, no negative words are introduced. This observation is not made for the purpose of contending, that the legislature may "apportion the judicial power between the Supreme and inferior Courts according to its will." That would be, as was said by this Court in the case of Marbury v. Madison, to render the distributive clause "mere surplusage," to make it "form without substance." This cannot, therefore, be the true construction of the article. But although the absence of negative words will not authorize the legislature to disregard the distribution of the power previously granted, their absence will justify a sound construction of the whole article, so as to give every part its intended effect. It is admitted, that "affirmative words are often, in their operation, negative of other objects than those affirmed ;" and that where "a negative or exclusive sense must be given to them, or they have no operation at all," they must receive that negative or exclusive sense. But where they have full operation without it; where it would destroy some of the most important objects for which the power was created; then, we think, affirmative words ought not to be construed negatively. The constitution declares, that in cases where a State is a party, the Supreme Court shall have original jurisdiction; but does not say that its appellate jurisdiction shall not be exercised in cases where, from their nature, appellate jurisdiction is given, whether a State be or be not a party. It may be conceded, that where the case is of such a nature as to admit of its originating in the Supreme Court, it ought to originate there; but where, from its nature, it cannot originate in that Court, these words ought not to be so construed as to require it. There are many cases in which it would be found extremely difficult, and subversive of the spirit of the constitu→ tion, to maintain the construction, that appellate ju risdiction cannot be exercised where one of the parties might sue or be sued in this Court. The constitution defines the jurisdiction of the 1821. Cohens Virginia. 1821. Cohens V. Virginia. Supreme Court, but does not define that of the inferior Courts. Can it be affirmed, that a State might not sue the citizen of another State in a Circuit Court? Should the Circuit Court decide for or against its jurisdiction, should it dismiss the suit, or give judgment against the State, might not its decision be revised in the Supreme Court? The argument is, that it could not; and the very clause which is urged to prove, that the Circuit Court could give no judgment in the case, is also urged to prove, that its judgment is irreversible. A supervising Court, whose peculiar province it is to correct the errors of an inferior Court, has no power to correct a judgment given without jurisdiction, because, in the same case, that supervising Court has original jurisdiction. Had negative words been employed, it would be difficult to give them this construction if they would admit of any other. But, without negative words, this irrational construction can never be maintained. So, too, in the same clause, the jurisdiction of the Court is declared to be original, " in cases affecting ambassadors, other public ministers, and consuls.” There is, perhaps, no part of the article under consideration so much required by national policy as this; unless it be that part which extends the judicial power" to all cases arising under the constitution, laws, and treaties of the United States." It has been generally held, that the State Courts have a concurrent jurisdiction with the federal Courts, in cases to which the judicial power is extended, unless the jurisdiction of the federal Courts be rendered exclu sive by the words of the third article. If the words, "to all cases," give exclusive jurisdiction in cases affecting foreign ministers, they may also give exclusive jurisdiction, if such be the will of Congress, in cases arising under the constitution, laws, and treaties of the United States. Now, suppose an individual were to sue a foreign minister in a State Court, and that Court were to maintain its jurisdiction, and render judgment against the minister, could it be contended, that this Court would be incapable of revising such judgment, because the constitution had given it original jurisdiction in the case? If this could be maintained, then a clause inserted for the purpose of excluding the jurisdiction of all other Courts than this, in a particular case, would have the effect of excluding the jurisdiction of this Court in that very case, if the suit were to be brought in another Court, and that Court were to assert jurisdiction. This tribunal, according to the argument which has been urged, could neither revise the judgment of such other Court, nor suspend its proceedings for a writ of prohibition, or any other similar writ, is in the nature of appellate process. Foreign consuls frequently assert, in our Prize Courts, the claims of their fellow subjects. These suits are maintained by them as consuls. The appellate power of this Court has been frequently exercised in such cases, and has never been questioned. It would be extremely mischievous to withhold its exercise. Yet the consul is a party on the record. The truth is, that where the words confer only appellate jurisdiction, original jurisdiction is most 1821. Cohens V. Virginia. 1821. Cohens V. Virginia. clearly not given; but where the words admit of appellate jurisdiction, the power to take cognizance of the suit originally, does not necessarily negative the power to decide upon it on an appeal, if it may originate in a different Court. It is, we think, apparent, that to give this distributive clause the interpretation contended for, to give to its affirmative words a negative operation, in every possible case, would, in some instances, defeat the obvious intention of the article. Such an interpretation would not consist with those rules which, from time immemorial, have guided Courts, in their construction of instruments brought under their consideration. It must, therefore, be discarded. Every part of the article must be taken into view, and that construction adopted which will consist with its words, and promote its general intention. The Court may imply a negative from affirmative words, where the implication promotes, not where it defeats the intention. If we apply this principle, the correctness of which we believe will not be controverted, to the distributive clause under consideration, the result, we think, would be this: the original jurisdiction of the Supreme Court, in cases where a State is a party, refers to those cases in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised in consequence of the character of the party, and an original suit might be instituted in any of the federal Courts; not to those cases in which an original suit might not be |