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Mr. Justice Story places the matter in the following point of view :

“As the Constitution is the supreme law of the land, in a conflict between that and the laws either of Congress or of the States, it becomes the duty of the judiciary to follow that only which is of paramount obligation. This results from the very theory of a republican form of government, for otherwise the acts of the Legislature and Executive would in effect become supreme and uncontrollable, notwithstanding any prohibitions or limitations contained in the Constitution; and usurpations of the most unequivocally dangerous character might be assumed, without any remedy within the reach of the citizens. The people would thus be at the mercy of their rulers in the State and National Governments, and an omnipotence would practically exist like that claimed for the British Parliament. The universal sense of America has decided that, in the last resort, the judiciary must decide upon the constitutionality of the acts and laws of the general and State Governments, so far as they are capable of being made the subject of judicial controversy. It follows, that when they are subjected to the cognisance of the judiciary, its judgments must be conclusive, for otherwise they may be disregarded, and the acts of the Legislature and Executive enjoy a secure and irresistible triumph. To the people at large, therefore, such an institution is peculiarly valuable, and ought to be eminently cherished by them. . .

“The framers of the Constitution, having these great principles in view, adopted two fundamental rules with

entire unanimity-first, that a national judiciary ought to be established; secondly, that it ought to possess powers co-extensive with those of the legislative department. Indeed, the latter necessarily flowed from the former, and was treated, and must always be treated (under the system of the United States), as an axiom of political government. But these provisions alone would not be sufficient to ensure a complete administration of public justice, or to give permanency to the Republic. The judiciary must be so organised as to carry into complete effect all the purposes of its establishment. It must possess wisdom, learning, integrity, independence, and firmness. It must at once possess the power and the means to check usurpation, and enforce execution of its judgments."*

Such being the motives which actuated the framers of the Constitution of the United States in assigning to the judiciary its powers, and such being the duties expected of them, it is next to be seen “ how far adequate means are provided for all these important purposes."

The first section of the third Article of the Constitution is as follows :

“The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as Congress may from time to time ordain and establish. The

* $$ 1576, 1577.

judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services à compensation which shall not be diminished during their continuance in office."

And by section 2, clause 1, their jurisdiction is thus defined :

“The judicial power shall extend to all cases, in law and equity, arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State, claiming lands under grants of different States; and between a State, or the citizens thereof, and foreign States, citizens, or subjects.” *

The Supreme Court consists of seven judges, and by clause 2 of the second section, they are invested with original jurisdiction “ in all cases affecting ambassadors, other public mi. nisters, and consuls, and those in which a State shall be party,” and “in all the other cases before mentioned, with appellate jurisdiction,” with such exceptions as Congress may think proper to make.

* This clause was subsequently altered by Article 11 of the Amendments of the Constitution, which is as follows :-“The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State.”

The inferior courts of the United States, to which the first section refers, are Circuit Courts, of which the judges of the Supreme Court are also the judges (the whole Union being divided into circuits), and the District Courts, one at least of which is established in every State.

These two courts have original jurisdiction in the cases specified in the above article, and also, as well as the Supreme Court, appellate jurisdiction in respect to cases within their judicial cognisance which may have arisen in the State courts; the obvious motive for which was, “the importance, and even the necessity, of uniformity of decisions throughout the whole of the United States upon all subjects within the purview of the Constitution.”*

* Story, $$ 1590–1597.


Whether it was in accordance with the Constitution, that the judges of the Supreme Court should also be called upon to fulfil the duties of judges of the circuit courts, was questioned in an elaborate memorial presented to President Washington, within a year after the Constitution was established, by Chief Justice Jay and the other judges of the Supreme Court. But no change was made ; and when the question was raised in 1803 before the Supreme Court, it was decided that the practice up to that time should be taken to have decided the point in favour of its being within the intention of the Constitution. *

The mode of appointing to these high judi. cial offices is obviously a matter of the first importance, in relation to the qualifications, and to the independence, of the functionaries invested with them.

* Note to § 1579. The two great cases which have decided the extent of the appellate jurisdiction of the United States Courts are Martin v. Hunter, 1 Wheatstone's Reports, 304; and Cohens v. Virginia, 6 Wheat., 413 to 423.

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