THE LAW OF JUDICIAL POWER
96. The people of the United States, like other sovereignties, possess
not only legislative and executive functions, but also judicial.
The possession of these three powers by sovereignty is essential to
its existence and a condition of any conception of it. The judicial
power of the United States is vested in one Supreme Court and in such
inferior courts as Congress from time to time may ordain and establish.
This is a delegation of judicial power.[243] The inferior courts are
established by Congress but the power of these courts is delegated to
them by the people of the United States through the Constitution. Thus
it may be said that these inferior courts exist by act of Congress
but their authority is delegated to them by the same sovereignty that
empowers Congress to create them. The power of the Supreme Court is
defined in the word _supreme_, and that of the inferior courts in the
word _inferior_. Congress can neither increase nor decrease this
power; the sovereign alone, the people of the United States can modify
the grant. This it has done by the Eleventh Amendment, ratified in 1798:
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.[244]
This Amendment was added in compliance with the idea,—at the time
dominant in America,—that a State, a member of the Union, is a
sovereign, and being sovereign, cannot be made defendant (that is,
cannot be sued) at the suit of a citizen or subject of another State,
or of a foreign country. The idea was,—and is,—that an American
Commonwealth may be petitioned, like any other sovereign, but can
be sued only in its own courts and with its own consent.[245] In
conformity to this idea the Constitution was so amended as to deny to
the courts of the United States any jurisdiction whatever in any case
in which an American Commonwealth is made a defendant.
97. This Amendment is a limitation of the judicial power delegated
to the government of the United States and save in some particulars
of applied judicial jurisdiction as original or appellate, is the
only limitation. On the principle that the government of the United
States “must possess all the means and have a right to resort to all
the methods of executing the powers with which it is intrusted that
are possessed and exercised by the governments of the particular
States,”[246] the judicial power vested in the federal courts must
be sufficient for all the functions and purposes of the federal
government. The judicial power of the United States extends to all
cases, in law and equity, arising under the Constitution, the laws of
the United States, and the treaties made under its 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 is a party; to controversies between two or
more States; between citizens of different States; between citizens
of the same State claiming lands under grants from different States,
and between a State, or its citizens, and foreign states, citizens, or
subjects, save and except as jurisdiction is limited by the Eleventh
Amendment.[247]
98. It will be observed that the judicial power thus delegated to
the United States includes jurisdiction over cases arising outside
the domain strictly included (as popularly understood) within the
government of the United States. That government is, of necessity and
by its nature, a distinct government, possessing powers and functions
and purposes of its own, delegated and set forth in the Constitution.
Fundamentally there is a government of the United States distinct
from the government of the States. The judicial power of the United
States includes jurisdiction over controversies to which States are a
party,—that is, to controversies to which the United States is not a
party. The jurisdiction here has no reference to the controversy but to
the status of the parties to the controversy.
99. _The Federalist_ sets forth the principle here involved:
If there are such things as political axioms, the propriety of
the judicial power of a government being co-extensive with its
legislative, may be ranked among the number. The mere necessity of
uniformity in the interpretation of the national laws decides the
question. Thirteen (1787; forty-eight, 1917) independent courts of
final jurisdiction over the same causes, is a hydra in government,
from which nothing but contradiction and confusion can proceed.[248]
This aspect of the judicial power of the United States concerns the
interpretation of the supreme law. One purpose of that law is “to
insure domestic tranquillity,”—that is, the peace of the Union.[249]
The Constitution imposes restrictions on the States, which of course
means restrictions on their legislatures, their governors, and their
courts. Upon principles of good government the States are prohibited
from doing many things. How shall infractions of the supreme law be
determined? Either by a congressional negative, or by the authority of
the federal courts overruling whatsoever act of the State contravenes
the Constitution.[250]
100. But the judicial power of the United States extends yet
further,—to controversies “in which the State tribunals cannot be
supposed to be impartial and unbiased.”[251] The principle here is that
the whole is greater than a part;
that the peace of the whole ought not to be left at the disposal
of a part. “No man ought to be a judge in his own cause, or in any
cause in respect to which he has the least interest or bias.”[252]
On the principle that every government ought to possess the means
of executing its own provisions by its own authority,
it follows that it is necessary that the construction of the
Constitution,—the supreme law,—
should be committed to that tribunal which, having no local
attachments, will be likely to be impartial between different
States and their citizens, and which, owing its official existence
to the Union, will never be likely to feel any bias inauspicious to
the principles on which it is founded.[253]
101. The exercise of judicial power by the Supreme Court is provided
for, in part, by the Constitution, but Congress is authorized to ordain
and establish inferior courts,—which means to define their respective
jurisdictions; to bestow upon a court so much judicial power, and to
make such restrictions, rules, and regulations as Congress itself may
deem proper. Thus Congress establishes such courts and defines their
several jurisdictions, but whatsoever judicial power a court possesses,
by act of Congress, the court derives from the Constitution in its
grant of such power. The jurisdiction of any inferior court of the
United States, thus defined by Congress, may vary, from time to time,
by act of Congress, but every case arising in the court must be shown,
by the record of the court, to be within its jurisdiction.[254] The
reason for this important rule (and seeming restriction) conforms to
the essential principle in all judicial proceeding: the principle of
authority. No court acts without authority and, as judicial examination
has for its ultimate purpose the settlement of controversy in a legal
manner, the jurisdiction of the court is of primary importance. One of
the purposes of the Union is “to establish justice,” and precision in
the whole matter of exercise of judicial power is essential.
102. The jurisdiction of the Supreme Court of the United States is
both original and appellate. Its original jurisdiction is defined in
the Constitution as “in all cases affecting ambassadors, other public
ministers and consuls, and those in which a State is a party.”[255]
The Court can have original jurisdiction in no other cases, nor can
Congress extend or diminish the Court’s jurisdiction. Thus to the words
in the Constitution conferring original jurisdiction on the Court “a
negative or exclusive sense must be given, or they have no operation
at all.”[256] The original jurisdiction of the Supreme Court was
conferred because of the dignity and rank of the Court, and the rank
of the parties thus privileged to appear before it at first instance.
Ambassadors, public ministers, and consuls represent sovereignties,
and a State in the Union is “for some purposes sovereign, for some
purposes subordinate.”[257] On this delegation of original jurisdiction
Chief Justice Marshall remarks: “There is, perhaps, no part of the
article under consideration so much required by national policy as
this.”[258] The rank of the parties is the reason for giving them the
right to begin their case in the Supreme Court. They are not excluded
from beginning it in some other court. But Congress, in establishing
an inferior court, may deny to it any jurisdiction in cases to which
foreign representatives are a party.[259] The right of ambassadors,
public ministers, and consuls to begin their suits in the Supreme
Court is a privilege accorded them because of their governments, and
not because of themselves. As they are accredited to the Government
of the United States and not to any State government, it is proper
that the United States courts, and of these the Supreme Court, should
have original jurisdiction in their cases.[260] In all the other
cases mentioned in the Constitution the Supreme Court has appellate
jurisdiction; that is, cases come before the Court on appeal from the
decision of some inferior federal court, or from some State court, as
provided by law. The entire procedure in an appeal to the Supreme Court
is regulated by Congress. If a party, whether private person, private
corporation, or public corporation, citizen, or State is within the
jurisdiction of the United States, then that person or corporation, if
a party to a case or controversy at law, is within the jurisdiction of
a federal court. The Constitution is the supreme law of the land and
this Constitution, the acts of Congress and the treaties made by its
authority are the law of federal jurisdiction. Thus it is commonly and
truly said, that whensoever the Constitution, or a treaty, or an act of
Congress is involved in the controversy, the federal courts (as their
several jurisdictions are determined by law) have jurisdiction in the
case. The principle is one of sovereignty.
103. The State for some purposes retains its sovereignty,[261] as
in the exercise of its police power.[262] By the Constitution, the
judicial power of the United States extends “to all cases of admiralty
and maritime jurisdiction,” but the State has jurisdiction to punish
crimes committed within its territory; to regulate fisheries within
that territory, and to punish those who violate its regulations. The
admiralty and maritime jurisdiction of the United States extends to the
high seas, to the navigable waters of the United States, to the Great
Lakes, and to rivers and lakes wholly within a State. Over its own
territory the State has jurisdiction; thus the territory which is the
scene, or area, or location of the act may be subject to both State and
federal jurisdiction, and is always within one or the other.
104. In creating inferior courts, Congress determines the jurisdiction
but not the judicial power exercisable within the jurisdiction.
Congress does not control the judges in their execution of their
office. Judicial power, of whatever extent, is conferred by the
Constitution; it is power of a judicial nature delegated by the people
of the United States. The inferior courts of the United States sit
in the several States, but the right to determine the jurisdiction
of these courts is placed not in the State Legislatures (though
these Legislatures have by delegated authority, jurisdiction of this
territory), but in the supreme judicial tribunal of the nation,—that
is, in the Supreme Court of the United States.[263] This means that the
Supreme Court “says what the law is.” This is the peculiar office of
courts of law. This is another way of saying that the sovereign, the
people of the United States, has delegated to the Supreme Court and
to inferior courts of the United States not legislative or executive
but judicial powers. The courts of law exercise judicial powers as the
President exercises executive and the Congress exercises legislative
powers,—in order to accomplish the purposes set forth in the Preamble
of the Constitution. The courts are empowered to accomplish this
purpose only in a judicial way.
105. The inferior courts, established by Congress, have such
jurisdiction as Congress in its wisdom sees fit to give them save that
the jurisdiction belonging to the Supreme Court cannot be given to an
inferior court; there can be but one Supreme Court. The relation of the
State courts to the courts of the United States is partly determined by
the Constitution, partly by act of Congress. The circumstances under
which a case in or from a State court may be transferred, or appealed,
to a federal court are various, but the essential reason for such
transfer is that the jurisdiction of the United States as defined by
the Constitution, a treaty, or an act of Congress, is involved. A case
or controversy not involving that jurisdiction cannot arise in any
federal court. The possible relations of the Constitution, treaties,
and acts of Congress to individuals (persons natural), to corporations
(persons artificial, as private corporations), and to States (public
corporations), are beyond calculation. The line of demarcation between
the jurisdiction of State courts and that of federal courts cannot
be fixed by any brief definition or survey. In some instances the
jurisdiction is a matter of choice by parties, the court that first
takes jurisdiction having it, as it were, by first instance, but in
such cases there exists by law a concurrent jurisdiction, judicial
procedure being open to parties in either the State or the federal
court. In practice, a court restricts itself to its own jurisdiction.
106. It has been said that one test of demarcation between the two
jurisdictions is the common law; that each State has the common law but
the United States has statute law only. This difference (if true) would
restrict federal courts to an exercise of judicial power delegated by
the Constitution and set forth in laws made by its authority, while the
State courts would administer justice in accord with the law of the
States which are both common law and statutory. It must be remembered,
however, that federal courts sit in the several States and administer
whatsoever law is the local (State) law, taking judicial notice of
State statutes, of decisions of State courts, of usages, of the common
law as existing in the State, and, therefore, exercising a jurisdiction
essentially the same as the State courts. Emphasis may well be placed
on the custom of federal courts to follow closely the decisions of
State courts,—the result being that State decisions become final in
federal courts as do federal decisions in State courts. But the States
cannot increase or diminish the jurisdiction of federal courts, nor
can Congress increase or diminish the jurisdiction of State courts.
Although both courts may have jurisdiction in certain cases, collisions
of authority are prevented by good sense and comity among State and
federal judges.
107. The essential power of any federal court is to exercise federal
judicial jurisdiction. This means, practically, that a federal court
does not and cannot exercise State powers. The converse also is true:
no State court can exercise federal powers, unless granted those
powers by the Constitution, a treaty, or an act of Congress; but a
State court exercising any federal powers, is thereby a federal court.
The Constitution provides that the judges in every State shall be
bound by the supreme law of the land, anything in the constitution or
laws of any State to the contrary notwithstanding. This solemn oath
of State judges to support the Constitution as the supreme law gives
them jurisdiction “to say what the law is,”[264] and howsoever rarely
they may exercise the power vested in them to do so, State judges may
take judicial notice of any law, State or federal, as harmonizing or
conflicting with the Constitution; this means that a State court may
pronounce an act of Congress unconstitutional, but the decision of
that court is not final: there is but one Supreme Court of the United
States.[265]
108. Territorial courts are to be distinguished from courts of the
United States. They are not federal courts as are the Supreme Court and
the inferior courts, namely, the Circuit Courts, the District Courts,
or the Court of Claims. Neither are they State courts.
The Constitution being made only for the people of the United
States,—that is, for the people of the United States inhabiting
States,[266] does not apply or extend to the territories unless
extended by act of Congress. The courts in a territory are created by
Congress and have such powers (or jurisdiction) as the act creating
them provides. But in creating them, Congress is limited by the
Constitution.[267] Congress also creates courts martial, but the
jurisdiction of these courts is always subject to inquiry by civil
courts. Fundamentally, the reason here is the supremacy of the civil
over the military authority in the American system of government.
109. A problem not infrequently arising in courts of law is the
solution of some political question involved. All political questions
are questions for the political department of the government to settle;
they lie wholly outside of the jurisdiction of the courts. Thus the
courts never decide as to the wisdom or folly of an executive or
legislative act,—and in one form or another, every act of Congress or
President is politically wise or unwise according to the political
belief of the critic. Nor do the debates over an act fix the meaning
of the act, with the court. Where the court was asked to refer to the
debates in Congress to determine the meaning of the act, it was said:
All that can be determined from the debates and reports is that
various members had various views, and we are left to determine
the meaning of this act, as we determine the meaning of other
acts, from the language used therein. There is, too, a general
acquiescence in the doctrine that debates in Congress are not
appropriate sources of information from which to discover the
meaning of the language of a statute passed by that body.[268]
The reason, [continues the court], is that it is impossible to
determine with certainty what construction was put upon an act by
the members of a legislative body that passed it by resorting to
the speeches of individual members thereof. Those who did not speak
may not have agreed with those who did, and those who spoke might
differ from each other, the result being that the only proper way
to construe a legislative act is from the language used in the act,
and, upon occasion, by a resort to the history of the times when it
passed.
110. In 1828 the Supreme Court sustained as a constitutional exercise
of the war power the right of the United States to acquire territory
by conquest or treaty.[269] The issue in the case was “the relation in
which Florida (at the time a Territory) stands to the United States.”
It was an issue in law, not in politics. Whether A or B is the lawful
governor of a State is an issue, when legally drawn, for the State
courts; but whether a community calling itself a State, is a member of
the Union, or should be admitted into it, under the Fourth Article of
the Constitution is a political question and is for Congress to decide.
It rests with Congress to decide what government is the established
one in a State. For as the United States guarantees to each
State a republican form of government, Congress must necessarily
decide what government is established in the State before it can
determine whether it is republican or not. And when the senators
and representatives of a State are admitted into the councils of
the Union, the authority of the government under which they are
appointed, as well as its republican character, is recognized by
the proper constitutional authority. And its decision is binding
on every other department of the government, and could not be
questioned in a judicial tribunal.[270]
The right to decide such a political question is in Congress and not in
the courts.[271]
111. The final authority of American courts of law to construe
statutes and constitutions is distinctive. The court pronounces a law
unconstitutional and thus expounds the constitution. “This results,”
says Cooley, “from the nature of its jurisdiction.” Chief Justice
Marshall, in 1803, first applied this principle in a Federal court:
The Government of the United States has been emphatically termed a
government of laws and not of men.
The Constitution is the supreme law of the land.
_It is emphatically the province and duty of the judicial
department to say what the law is._[272]
In these words is stated the essential doctrine of judicial supremacy.
As the doctrine is fundamental, the reason for it is essential to a
proper understanding of its vast import:
That the people have an original right to establish for their
future government such principles as in their opinion shall most
conduce to their own happiness, is the basis on which the whole
American fabric has been erected. The exercise of this original
right is a very great exertion; nor can it, nor ought it to be
frequently repeated. The principles, therefore, so established
are deemed fundamental. And as the authority from which they
proceed is supreme, and can seldom act, they are designed to
be permanent. This original and supreme will organizes the
government, and assigns to different departments their respective
powers. It may either stop here or establish certain limits not
to be transcended by those departments.... It is a proposition
too plain to be contested, that the Constitution controls any
legislative act repugnant to it; or that the Legislature may alter
the Constitution by an ordinary act. Between these alternatives
there is no middle ground. The Constitution is either a superior,
paramount law, unchangeable by ordinary means, or it is on a level
with ordinary legislative acts and, like other acts, is alterable
when the legislature shall please to alter it. If the former part
of the alternative be true, then a legislative act contrary to the
Constitution is not law; if the latter part be true, then written
constitutions are absurd attempts on the part of the people to
limit a power in its own nature illimitable. Certainly all those
who have framed written constitutions contemplate them as forming
a fundamental and paramount law of the nation, and consequently
the theory of every such government must be, that an act of the
Legislature repugnant to the constitution is void.... It is
emphatically the province and duty of the judicial department to
say what the law is. Those who apply the rule to particular cases
must of necessity expound and interpret that rule. If two laws
conflict with each other, the courts must decide on the operation
of each. So, if a law be in opposition to the Constitution, if
both the law and the Constitution apply to a particular case, so
that the court must either decide the case conformably to the law
disregarding the Constitution, or conformably to the Constitution
disregarding the law, the court must determine which of these
conflicting rules governs the case. This is of the very essence of
judicial duty.... Those, then, who controvert the principle that
the Constitution is to be considered in court as a paramount law,
are reduced to the necessity of maintaining that courts must close
their eyes on the Constitution, and see only the law. This doctrine
would subvert the very foundation of all written constitutions.
It would declare that an act, which according to the principles
and theory of our government is entirely void, is yet in practice
completely obligatory.... It would be giving the Legislature a
practical and real omnipotence with the same breath which professes
to restrict their powers within narrow limits. That it thus
reduces to nothing what we have deemed the greatest improvement on
political institutions,—a written constitution,—would of itself
be sufficient, in America, where written constitutions have been
viewed with so much reverence, for rejecting the construction. But
the peculiar expressions of the Constitution of the United States
furnish additional arguments in favor of its rejection.[273]
The conclusion of the whole matter is:
Thus the particular phraseology of the Constitution of the United
States confirms and strengthens the principle, supposed to be
essential to all written constitutions, that a law repugnant
to the constitution is void; and that courts, as well as other
departments, are bound by that instrument.[274]
112. The federal (or the State) judiciary, while final judge of
what the law is, is not the judge of what the law should be: such
action would be a violation of judicial functions and an assumption
of legislative functions.[275] The court in saying what the law is,
that is, what it means, does not attempt to say what the law should
be, that is, to make the law. Therefore it is perilous, as likely to
embarrass the court, for the court to be subject to the call of the
executive, or the legislative, to give an opinion “upon important
questions of law, and upon solemn occasions.”[276] The peril lies
in possible confusion of governmental functions, or, to use the
constitutional term, “offices.” The American people have delegated
judicial power to the courts: the people of the several States to
their State courts; the people of the United States, to the federal
courts; and “it is emphatically the province and duty of the judicial
department to say what the law is.”
113. This province the American judiciary occupies, this duty it
performs, with the result that it holds a unique place in political
history. At no other time, among no other people, in no other form of
government has the judiciary executed the office it executes in the
American system of government.
It is the consciousness of the American people that law must
rest upon justice and reason, that the constitution is a more
ultimate formulation of the fundamental principles of justice
and reason than mere legislative acts, and that the judiciary
is a better interpreter of these fundamental principles than
the Legislature,—it is this consciousness which has given such
authority to the interpretation of the Constitution by the Supreme
Court.[277]
Yet,—so remarks the Supreme Court itself,—
The slightest consideration of the nature, the character, the
organization, and the powers of (federal) courts will dispel any
fear of serious injury to the government at their hands. While by
the Constitution the judicial department is recognized as one of
the three great branches among which all the powers and functions
of the government are distributed, it is inherently the weakest of
them all. Dependent as its courts are for the enforcement of their
judgments upon officers appointed by the executive and removable
at pleasure, with no patronage and no control of the purse or the
sword, their power and influence rest solely upon the public sense
of the necessity for the existence of a tribunal to which all may
appeal for the assertion and protection of rights guaranteed by the
Constitution and by the laws of the land, and on the confidence
reposed in the soundness of their decisions and the purity of their
motives.[278]
114. To the question, “What is constitutional law in the United
States?” the answer is, “Law as interpreted by the Supreme Court.”
In other countries, and, generally speaking, in all countries at all
times, until the institution of the political system of the United
States,—the American system of government,—the supreme law of the
land was the will of the executive (as in absolute monarchies), or
the supreme will of the legislative (as in Great Britain). So long
as the Supreme Court of the United States retains the confidence of
the American people, the decisions of that Court will remain the
authoritative exposition of American constitutional law.
It follows that the normal execution of the judicial office in America
determines the meaning of American constitutional law; or stated in
other words, in the decisions of the Supreme Court there are found
the formulation of the principles on which law in America is founded,
and the application of these principles in testing, as issues arise,
the acts of the legislative and the services of the administrative.
Therefore it is to the interpretation thus given by the judiciary that
we turn for an understanding of the exercise of offices,—legislative,
executive, or judicial, delegated as powers by the sovereign, the
people of the United States. Whatsoever is done, by either (so-called)
department of government in conformity with this delegation of powers
is constitutional; and whatsoever is done by either department in
conflict with this delegation of powers is unconstitutional. Whether
constitutional or unconstitutional it is the exalted and unique
office of the Supreme Court to determine. This Court therefore
touches American life at every point. Exhaustive examination of its
interpretation principles, laws, judicial decisions, arguments of
counsel, opinions of experts, writings of jurists, and the history of
society,—and such examination alone, answers the question, “What is
constitutional law in America?”
In attempting, then, to summarize, the essentials of American
constitutional law, it is from the decisions of the Supreme Court, as
from no other source, one must derive any authoritative interpretation.
115. The three departments of government are distinct.
The legislative shall never exercise the executive and judicial
powers, or either of them; the executive shall never exercise the
legislative or judicial powers, or either of them; the judicial
shall never exercise the executive or legislative powers, or either
of them; to the end it may be a government of laws and not of
men.[279]
This principle of separation of powers, or offices, of government, is,
for many purposes, not merely fundamental, but primary, in American
constitutional law. A department of government can execute only the
offices, or powers, delegated to it,[280] but the Legislature cannot
impose other than judicial duties upon courts of law, or judicial
duties upon other than the judiciary.[281]
It follows from this principle that acts done by the legislative, or
the judiciary, or the executive, in due course,—that is, according to
rules of procedure and in the mode required by law, are official acts
and are to be accredited as such.[282] Thus laws which appear on the
face of them to be attested by the proper officials of the two Houses,
duly signed by the Executive (or, passed over his vote as provided by
the Constitution), and published by the official authorized to publish
them are legislative acts, (laws) in a constitutional sense. So the
records of courts of law made and kept in due procedure, and officially
authenticated, are judicial records in a constitutional sense.
116. The original jurisdiction of the Supreme Court is co-extensive
with the judicial power delegated by the Constitution.[283] Congress
has power to give the inferior courts of the United States “original
jurisdiction in any case to which the appellate jurisdiction
extends.”[284]
In all cases in which the Constitution, or a treaty, or an act of
Congress is involved, the United States through some one of its courts
has jurisdiction.[285]
The exemption of an ambassador, public minister, or consul from suits
in particular courts “is the privilege, not of the person who happens
to fill the office, but of the State or government he represents.”[286]
Consuls are oftentimes citizens, not aliens; any exemptions or
privileges claimed by such a person accrue to him as consul being an
alien, not as consul being also a citizen, of the United States.
The admiralty jurisdiction of the United States extends over all
water on which commerce is carried on between different States, or
nations.[287] The principle of national commercial jurisdiction is
essentially that of national political jurisdiction, a jurisdiction
thus declared:
We hold it to be an incontrovertible principle that the Government
of the United States may, by means of physical force, exercised
through its official agents, execute on every foot of American
soil the powers and functions that belong to it. This necessarily
involves the power to command obedience to its laws....[288]
It is a fundamental of our constitutional law that no suit can be
maintained against the United States, in any court, without express
authority of Congress; and the United States cannot be sued in the
courts of any State in any case.[289] It is the sovereign right of the
United States not to be sued. To the extent that a State is sovereign
it has the same right, and “These States are constituent parts of the
United States. They are members of one great empire—for some purposes
sovereign, for some purposes subordinate.”[290] The physical boundaries
of a State, constituting a political, not a judicial question, must
be determined by legislative authority, yet if the United States is a
party to a case involving the issue of territorial boundary, the case
falls within the judicial power,—that is, within the jurisdiction of
the courts of the Union.
The States of the Union have agreed in the Constitution that
the judicial power of the United States shall extend to _all_
cases arising under the Constitution, laws, and treaties of the
United States, without regard to the character of the parties
(excluding of course, suits against a State by its own citizens,
or by citizens or subjects of foreign states), and equally to
controversies to which the United States shall be a party, without
regard to the subject of such controversies, and that (the Supreme
Court) may exercise original jurisdiction in all such cases [in
which a State shall be a party] without excluding those in which
the United States may be the opposite party.[291]
In other words, the United States possesses adequate governmental
authority and jurisdiction to secure the large purposes outlined in
the Preamble to the Constitution. The United States has judicial
jurisdiction in all cases arising under the Constitution, the laws and
the treaties of the United States “whoever may be the parties.”[292]
This principle is of far-reaching effect; no party can be exempt.
117. A corporation created by a State is a citizen of that State
for many purposes, but cannot be a citizen of another State because
created by the former State. Outside of the State of its creation
it is a foreign corporation and possesses only such privileges as
are granted to it. This means that rights, privileges, judgments
accruing to or possessed by a corporation, say created by Pennsylvania
and in Pennsylvania, do not accrue to and are not possessed by that
corporation, say in Ohio, unless conferred by Ohio and possessed by
the corporation within Ohio, under laws of Ohio, and by decision of
Ohio courts. The principle here is the familiar one of jurisdiction.
No State has power beyond its own jurisdiction and “the courts of no
country execute the penal laws of another.”[293]
The suability of a State involves its sovereignty and its honor and
good faith. The constitutional law of America is that a State in the
Union cannot be compelled to perform its contracts, although attempts
on its part to avoid them may be judicially resisted, and State laws
impairing the obligation of contracts are void. Yet the legislative
department of a State represents its polity and its will and by
every principle of justice is called upon to hold public obligations
inviolate.
Any departure from this rule, except for reasons most cogent (of
which the Legislature and not the courts, is the judge) never fails
in the end to incur the odium of the world, and to bring lasting
injury upon the State itself. But to deprive the Legislature of
the power of judging what the honor and safety of the State may
require, even at the expense of a temporary failure to discharge
the public debts, would be attended with greater evils than such
failure can cause.[294]
118. The judicial power of the United States extends, under the
Constitution to controversies between _citizens of different States_
and the Judiciary Act confers jurisdiction strictly within the meaning
of the term.[295]
_States_, as the word is used in the Constitution, means only members
of the Union; a Territory is not a State; the citizen of a Territory is
not a citizen of a State and any controversy at law which he may have
with another person is not “a controversy between citizens of different
States,” and therefore does not come within the judicial jurisdiction
of the United States. Of course the limitation applies to artificial
persons,—corporations created by a State.
A corporation is not a citizen of the State and it cannot maintain
a suit in a court of the United States against the citizen of a
different State from that by which it was chartered, unless the
persons who compose the corporate body are all citizens of that
State.[296]
The jurisdiction of American courts is co-extensive with the power that
creates them. Thus the jurisdiction of federal courts depends in no way
upon the State, and State judges “possess an absolute independence of
the United States.”
The Constitution has proceeded upon a theory of its own, and given
or withheld powers according to the judgment of the American
people, by whom it was adopted. We (_i. e._ the Supreme Court)
can only construe its powers, and cannot inquire into the policy
or principles which induced the grant of them. The Constitution
has presumed (whether rightly or wrongly we do not inquire) that
State attachments, State prejudices, State jealousies, and State
interests, might sometimes obstruct, or control, or be supposed
to obstruct or control, the regular administration of justice.
Hence, in controversies between States; between citizens of
different States; between citizens claiming grants under different
States; between a State and its citizens, or foreigners, and
between citizens and foreigners, it enables the parties, under the
authority of Congress, to have the controversies heard, tried, and
determined before the national tribunals. No other reason than
that which has been stated can be assigned, why some, at least,
of these cases should not have been left to the cognizance of the
State courts. In respect to the other enumerated cases—the cases
arising under the Constitution, laws, and treaties of the United
States, cases affecting ambassadors and other public ministers,
and cases of admiralty and maritime jurisdiction—reasons of a
higher and more extensive nature, touching the safety, peace, and
sovereignty of the nation, might well justify a grant of exclusive
legislation.[297]
From the principle here given it may be deduced that cases or
controversies in State courts are removable from them into federal
courts if the case or controversy involves the Constitution, a treaty
or an act of Congress.[298]
But a prisoner in custody under the authority of a State should
not, except in a case of peculiar urgency, be discharged by a court
or judge of the United States upon a writ of _habeas corpus_, in
advance of any proceedings in the courts of the State to test the
validity of his arrest or detention.[299]
119. A federal court sitting within a State is a court of that State
within the meaning of the Constitution and laws of the Union, “and as
such, has an equal right with the State courts to fix the construction
of the local law.”[300] A State tribunal’s decision must conform to
that of the Supreme Court of the United States, but a federal court
sitting within a State follows the highest State tribunal unless the
decision of that tribunal has been set aside by the Supreme Court. Such
procedure “tends to preserve harmony in the exercise of the judicial
power, in the State and federal tribunals.” This means that the statute
law of a State,—and a fixed and received construction by a State in its
own courts, makes a part of the statute law,—is accepted by the federal
courts sitting in the State. But the federal court there is not bound
to follow such State precedents and authorities; the court possesses
a jurisdiction independent of that conferred by State authority.[301]
Thus it may be stated as accepted American constitutional law that
where there are two co-ordinate jurisdictions, and especially “with
regard to the law of real estate and the construction of State
constitutions and statutes” and where are concerned “the doctrines of
commercial law and general jurisprudence” the federal courts sitting
in a State exercise their own judgment, “but even in such cases, for
the sake of harmony and to avoid confusion, the federal courts will
lean towards an agreement of views with the State courts, if the
question seems to them balanced with doubt.”[302]
To the extent that a federal court sitting within a State follows State
laws and decisions, to that extent is there a common law of the United
States. There is, however, no national common or customary law of the
United States; its law is statutory. But the interpretation of the
Constitution by the judicial power of the United States
is necessarily influenced by the fact that its provisions are
framed in the language of the English common law, and are to be
read in the light of its history. The code of constitutional and
statutory construction which, therefore, is gradually formed by
the judgments of (the Supreme) Court, in the application of the
Constitution and the laws and treaties made in pursuance thereof,
has for its basis so much of the common law as may be implied in
the subject, and constitutes a common law resting on national
authority.[303]
NOTE: For an account of acts of Congress declared unconstitutional
by the Supreme Court see _The Supreme Court and Unconstitutional
Legislation_, B. F. Moore, Columbia University Studies, vol. liv.,
No. 2, 1913.