particular primary rights. This restriction upon the subjectmatter over which the court has jurisdiction, may relate to several different elements or characteristics of that subjectmatter. It may have reference exclusively to the essential nature of the cause of action; that is, to the very nature of the primary right or the breach thereof. Thus courts of probate are confined to a narrow and accurately defined field of activity. The jurisdiction of admiralty courts is limited to a very special class of forensic disputes. This species of limitation rests, to a very great extent, upon the national courts. The restriction upon the subject-matter over which a court has jurisdiction, may also have reference solely to the amount of the claim, or the value of the property involved in the controversy. Or it may be based upon the locality of the cause of action; that is, upon the situation of the property which is in dispute, or upon the place where the cause of action arose, if it do not relate to the ownership of, or injury to, fixed property.

§ 738. 2. The Parties to the Action. This limitation extends to those cases only where some peculiar character impressed upon the person, or some peculiar circumstance affecting him, is necessary to give the court jurisdiction over him either as the party prosecuting or the party defending; so that when this necessity is met, any subject-matter may be drawn within the sphere of judicial action. The restriction as to persons may have reference to some peculiar status or official character of the litigants. Thus the Constitution gives to the Supreme Court a jurisdiction in all matters affecting ambassadors, other public ministers, and consuls. By far the most common form of this limitation has respect to the residence or locality of the parties. The Constitution makes the residence of parties a criterion or test of the jurisdiction held by the national courts, without any reference to the subject-matter of the controversy; it gives those tribunals the power to entertain and decide all controversies between a state and citizens of another state, between citizens of different states, and between a state or citizens thereof, and foreign states, citizens, or subjects.

In the case of many nferior courts these two general species

of restriction that upon the subject-matter and that upon persons are combined in determining the extent of jurisdic

tion.

§739. Whence do courts derive their jurisdiction? I answer, either from the common law, or from statutes, including our written constitutions under the latter head. It must be observed that there is a wide difference between the creation and organization of a judicial tribunal, and the conferring of jurisdiction upon it. All the courts in our country, state and national, are the creatures of constitutions or statutes; all, however, do not derive their jurisdiction from the same source. It may be said generally that when an American court draws its powers from the common law, it possesses all the functions which were held by the co-ordinate courts in England, except so far as those attributes have been limited or taken away by the organic law or by positive legislation. On the other hand, those courts which draw their powers from constitutions and statutes, possess those functions alone that have been expressly conferred, and cannot aid or enlarge their authority by appealing to the unwritten law behind the

statute.

• It is a settled doctrine that the national courts are clothed with no common law jurisdiction, but derive all their powers from the Constitution and laws of Congress enacted in pursuance thereof, and are therefore bound by the express grants contained in the organic law and in this positive legislation. The limits of their authority are thus fixed; Congress may perhaps fail to come up to those boundaries; it cannot pass them.

§ 740. With this outline of the nature, extent, and sources of jurisdiction in general, I pass to the special subject of the present chapter.

No one will deny that in every community claiming to be a nation, the supreme government should possess a judicial power commensurate in all respects with its power of legislation. Indeed, without such judicial power, the power of legislation would be either a nullity, or an irresponsible and arbitrary tyranny. It would be a nullity, because all laws

involve the idea of a sanction to enforce the command; without the sanction the command would simply be a request or the expression of a wish. In civilized countries, the judiciary, in effect, wields the sanctioning authority; it enforces penalties of one sort or another for the breach of public and of private rights. It is plainly necessary, therefore, that this sanctioning authority, or authority to enforce, should be coextensive with the legislative authority, or authority to create law. Just so far forth as the former should fall short of the latter, the laws would either be nullities, or would be arbitrarily executed by the ministerial officers. Of course it is not indispensable that each particular tribunal should possess functions equal in extent to those of the legislature; there may well be grades of courts. But the judicial system as a whole must, if the energies of the nation and the liberties of the people are to be preserved, be equal in the field of its operations to the lawmaking department. Thus we find in England, side by side with an omnipotent Parliament, a number of superior courts clothed with a general jurisdiction. In our own country the states under the National Constitution, possess but a limited legislative authority; in respect to many important subjects their power to enact laws is taken away. But they have all established a judiciary with functions commensurate with the legislative attributes conferred upon them by the people of the nation.

§ 741. In the next place, it may be affirmed that the judi ciary need have no greater degree or amount of power than that held by the supreme legislature of a state or nation. Indeed, as far as such an excess of power should be expressly granted to the courts, it would be unnecessary and likely to produce great evils, except in very peculiar circumstances, such as those which will be mentioned in the sequel; as far as it should be assumed by them, the act would be a palpable usurpation. These principles which seem to be elementary and fundamental, to be a part of the very axioms of political science, are of the utmost importance in this discussion, for by them we must test the jurisdiction which may be wielded by the national courts.

§ 742. There was no plainer note of the unnational character of the early confederated government, than the absence of any judiciary of the United States. But the contrivers of that unfortunate plan were at least logical and consistent. As there was no judiciary, there was no Executive: the utterances of the Congress were not addressed to individuals as commands, but to assumed sovereign states, as requests or recommendations. When the Convention determined to frame a government which should express the national idea, be founded upon the fact of an existing nationality, and be clothed with national attributes, the necessity of a national judiciary was at once conceded. The important question to be determined was, the amount, extent, and nature of the jurisdiction to be conferred upon that system of courts in the aggregate. Reasoning a priori, it must be said that as far as the powers of Congress or of the Executive extend, so far should the powers of the judiciary extend; as far as the legislation of the national government or the acts of the Executive are supreme, so far should the jurisdiction of the courts, and their decisions in accordance therewith, be supreme. Where the legislature is authorized to make laws, the courts should be authorized to expound them, and apply the sanction; where the laws thus made are binding upon the community, and superior to all local and state legislation, the expositions made and the sanctions applied by the judiciary should be equally binding and superior.

§743. The correctness of this reasoning no one can deny. Strip the national government of an authority to apply a sanction commensurate with its power to legislate, and just so far we subtract from that legislation the necessary element of a command. Strip the government of the ability to make that sanction supreme, and we equally invalidate the authority of the legislative utterance. This attribute of supremacy would be destroyed by permitting the state courts, for example, to decide upon the effect of national laws, and by making their decisions, in the particular state where made, of an equal authority with those pronounced upon the same subject by the national judges. This difficulty thus to be apprehended from the action of state tribuna.s, could only be prevented in one

of two ways; either by removing from them the power to decide at all upon rights and duties which spring from the national legislation, and conferring the function exclusively upon the United States courts; or by permitting the state judiciary to exercise a jurisdiction in such cases, but making that jurisdiction subordinate to the authority of the national courts, and rendering the local decisions reviewable by the United States judges who could in this manner enforce their attribute of supremacy in relation to the matters under consideration. In theory the former of these plans would have been the more simple and perfect. But it was perhaps best, from some motives of expediency, that the Constitution should not expressly determine between these two methods, but should clothe Congress with the power of making such a choice of the alternatives as should be found to promote the convenience of the people. Congress possesses such an authority; it might make all this jurisdiction exclusive in the national courts, but has done so only in particular cases; it might suffer the state tribunals to exercise a complete concur rent power, subject to an equally complete liability to review, but has done so only to a limited extent. Whether Congress shall adopt one or the other alternative, is a mere question of policy; it may do either. I remark in passing, that, as the true relations between the nation and the states become more clearly defined, this jurisdiction will be relegated entirely to that department where it theoretically belongs, to the judiciary of the United States.

$744. If it had been the intention to make the government of the United States unlimited, then its judiciary should have been clothed with functions equally extensive, identical with those entrusted to the superior courts of law and equity in England. But such was not the design; such was not the fact. The new-made government was limited in the range of its legislative and administrative attributes; and so far forth as the jurisdiction of the national courts was to be based upon the existence of those attributes, it should partake of the same limitation; in theory and in general, it should have extended no farther. But the situation of the United States was pecu