CHAPTER XIV.

Report of the Committee of Detail, continued.—Formation of the Judicial Power.

There now remains to be described the full conception and creation of the third department of the government, its judicial power.

The distribution of the powers of government, when its subjects are to sustain no relation to any other sovereignty than that whose fundamental laws it is proposed to ordain, is a comparatively easy task. In such a government, when the theoretical division into the legislative, executive, and judicial functions is once adopted, the objects to which each is to be directed fall readily into their appropriate places. All that is necessary is, to see that these departments do not encroach upon the rights and duties of each other. There is, at least, no other power, claiming the obedience of the same people, whose just authority it is necessary to regard, and on whose proper domain no intrusion is to be permitted.

How different is the task, when a government, either federal or national, is to be created, for a people inhabiting distinct political States, whose sovereign power is to remain for many purposes supreme over their respective subjects; when the individual is to be under rules of civil duty declared by different public organs; and when the object is to provide a judicial system through which this very difference of authority may be made to work out the ends of social order, harmony, and peace! This difficult undertaking was imposed upon the framers of the Constitution of the United States, and it was by far the most delicate and difficult of all their duties. It was comparatively easy to agree on the powers which the people of the States ought to confer on the general government, to define the separate functions of the legislature and the executive, and to lay down certain rules of public policy which should restrain the States in the exercise of their separate powers over their own citizens. But to construct a judicial power within the general government, and to clothe it with attributes which would enable it to secure the supremacy of the general Constitution and of all its provisions; to give it the exact authority that would maintain the dividing line between the powers of the nation and those of the State, and to give to it no more; and to add to these a faculty of dispensing justice to foreigners, to citizens of different States, and among the sovereign States themselves, with a more even hand and with a more assured certainty of the great ends of justice than any State power could furnish,—these were objects not readily or easily to be attained. Yet they were attained with wonderful success. The judicial power of the United States, considered with reference to its adaptation to the purposes of its creation, is one of the most admirable and felicitous structures that human governments have exhibited.

The groundwork of its formation has been partly described in a previous chapter, where some of the principles are stated, which had been arrived at as being necessary to its great purposes. These principles related to the persons who were to exercise its functions, and to the jurisdiction or authority which they were to possess. With respect to the persons who were to exercise the judicial power, the result that had been reached when the first draft of the Constitution was to be prepared had fixed the tenure of good behavior for their office, and had placed their salaries, when once established, beyond the reach of any power of diminution by the legislature. It had also been determined that there should be one supreme tribunal, under the Constitution, and that the legislature should have power to establish inferior tribunals. But nothing more precise had been arrived at respecting jurisdiction, than the broad principles which declared that it should extend to cases arising under laws passed by the general legislature, and to such other questions as might touch the national peace and harmony. The committee of detail were to give effect to this declaration. Their scheme provided, under the first of these heads, that the jurisdiction should embrace cases arising under the laws of the United States; and as questions touching the national peace and harmony, they enumerated all cases affecting ambassadors, other public ministers, and consuls; impeachments of officers of the United States; all cases of admiralty and maritime jurisdiction; controversies between two or more States, excepting such as might regard territory or jurisdiction; controversies between a State and citizens of another State, between citizens of different States, and between a State or the citizens thereof and foreign states, citizens, or subjects. In cases of impeachment, cases affecting ambassadors, other public ministers, and consuls, and those in which a State should be party, they assigned the original jurisdiction to the Supreme Court. In all the other cases enumerated, the jurisdiction of the supreme tribunal was to be appellate only, with such exceptions and regulations as the legislature might make; and the original jurisdiction was left to be assigned by the legislature to such inferior tribunals as they might from time to time create. The trial of all criminal offences, except in cases of impeachment, was to be in the State where they had been committed, and was to be by jury. Controversies between States respecting jurisdiction or territory, and controversies concerning lands claimed under grants of different States, were to be tried by the Senate, and were consequently excluded from the judicial power.

This plan, when compared with the full outline of the jurisdiction, as it was finally established, presented several remarkable defects. In the first place, it was silent with respect to the important distinction, familiar to the people of the United States, between proceedings in equity and proceedings at common law. This distinction, which extends not only to the forms of pleading, but to the principles of decision, the mode of trial, and the nature of the remedy, had been brought by the settlers of most of the Colonies from England, and had been perpetuated in their judicial institutions. It existed in most of the States, at the time of the formation of the national Constitution, and it was, in fact, a characteristic feature of the only system of judicature which the American people had known, excepting in their courts of admiralty. Although the institutions of the States differed in the degree in which they had adopted and followed it, the basis of their jurisprudence and forms of proceeding was the common law, as derived from its English sources and modified by their own customs or legislation, with more or less of that peculiar and more ample relief which is afforded by the jurisprudence and remedy known in the English system under the name of equity.

Since the judicial power of the United States was to be exercised over a people whose judicial habits were thus fixed; since it must, to some extent, take cognizance of rights that would have to be adjudicated in accordance with the jurisprudence under which they had arisen; and since the individuals who would have a title to enter its tribunals might reasonably demand remedies as ample as a judicature of English origin could furnish, it was highly expedient that the Constitution should fully adopt the main features of that judicature. It is quite true, that a provision in the Constitution extending the judicial power to "all cases" affecting certain persons or certain rights, might be regarded by the legislature as a sufficient authority for the establishment of inferior courts with both a legal and an equitable jurisdiction, and might be considered to confer such a double jurisdiction on the supreme tribunal contemplated by the Constitution. But the text of the Constitution itself would be the source to which the people of the United States would look, when called upon to adopt it, for the benefits which they were to derive from it, and there would be no part of it which they would scrutinize more closely than that which was to establish the judicial power of the new government. If they found in it no imperative declaration making it the duty of Congress to provide for a jurisdiction in equity as well as at law, and no express adoption of such a jurisdiction for the supreme tribunal, they might well say that the character of the judicial power was left to the accidental choice of Congress, or to doubtful interpretation, instead of being expressly ordained in its full and essential proportions by the people. If a citizen of one State were to pursue a remedy in the courts of the Union against a citizen of another State, or if one State should have a judicial controversy with another, that would be a very imperfect system of judicature which should leave the form and extent of the remedy to be determined by the local law where the process was to be instituted, or which should confine the relief to the forms and proceedings of the common law. If the appellate jurisdiction of the supreme national tribunal were to be exercised over any class of controversies originating in the State courts, it was extremely important that the Constitution should expressly ascertain whether suits at law, or suits in equity, or both, were to be embraced within that appellate power. For these reasons, it became necessary for the Convention to supply this defect, by extending the judicial power, both in equity and at law, to the several cases embraced in it.

Another defect in the report of the committee,—or what was regarded as a defect when the Constitution was ratified,—and one which the Convention did not supply, was in the omission of any express provision for trial by jury in civil cases. Such a provision was supplied by an amendment proposed by the first Congress that assembled under the Constitution, and adopted in 1791; but it was regarded by the framers of the Constitution as inexpedient, on account of the different construction of juries in the different States, and the diversity of their usages with respect to the cases in which trial by jury was used.[352] It is quite possible that, after the Constitution had declared that the jurisdiction of the national tribunals should extend to all cases "in law" affecting certain parties or rights, Congress would not have been at liberty to establish inferior tribunals for the trial of cases "in law" by any other method than according to the course of the common law, which requires that the fact in such cases shall be tried by a jury. But the objection which afterwards prevailed was connected, as we shall presently see, with what was regarded as a dangerous ambiguity in the clause of the Constitution which gave to the Supreme Court its appellate jurisdiction both as to law and fact.

The plan of the committee of detail contemplated a supreme tribunal with original jurisdiction over a few of the cases within the judicial power, and appellate jurisdiction over all the other cases enumerated. Inquiry was made in the Convention, whether this appellate jurisdiction was intended to embrace fact as well as law, and to extend to cases of common law as well as to those of equity and admiralty jurisdiction. The answer was given, that such was the intention of the committee, and the jurisdiction of the federal court of appeals, under the Confederation, was referred to as having been so construed. The words "both as to law and fact" were thereupon introduced into the description of the appellate power, by unanimous consent.[353] Various explanations were subsequently given, when the Constitution came before the people, of the force and meaning of these words. The most probable and the most acute of these explanations was that made by Hamilton in the Federalist,[354] which limited the effect of the words, in reference to common law cases, to so much cognizance of the facts involved in a record as is implied in the application of the law to them by the appellate tribunal. But the truth was, the words were of very comprehensive import. While they were used in order to save to the Supreme Court power to revise the facts in equity and admiralty proceedings, they made no distinction, and imposed upon Congress no duty to make a distinction, between cases in equity and admiralty, and cases at common law; and although it might be true, that in some States the facts in all cases were tried by a jury, and that in some cases so tried there ought to be a power to revise the facts, yet it was not conceded that such a power ought to exist over the verdicts of juries in cases of common law jurisdiction. This explanation will serve to show the double purpose of the amendment made in 1791. The people of many of the States required an express guaranty that trial by jury should be preserved in suits at common law, and that the facts once tried by a jury should not be re-examined otherwise than according to the rules of the common law, which have established certain well-defined limits to the power of an appellate tribunal concerning the facts appearing to have been found by a jury.[355]

There was still another omission in the report of the committee, of great magnitude. They had included in the judicial power cases arising under the laws of the United States, but they had not embraced cases arising under the Constitution and under treaties. At the same time, the Constitution was to embrace not only the powers of the general government, but also special restrictions upon the powers of the States; and not only the Constitution itself, but the laws made in pursuance of its provisions, and all treaties made under the authority of the United States, were to be the supreme law of the land. This supremacy could only be enforced by some prescribed action of some department of the general government. The idea of a legislative arrest, or veto, of State laws supposed to be in conflict with some provision of the national Constitution, or with a treaty or a law of the United States, had been abandoned. The conformity, moreover, of the laws of Congress to the provisions of the Constitution, could only be determined by the judicial power, when drawn into question in a judicial proceeding. The just and successful operation of the Constitution, therefore, required that, by some comprehensive provision, all judicial cases[356] arising under the Constitution, laws, or treaties of the United States—whether the question should grow out of the action of a State legislature, or the action of any department of the general government—should be brought within the cognizance of the national judiciary. This provision was added by the Convention. It completed the due proportions and efficacy of this branch of the judicial power.

Trial by jury of all criminal offences (except in cases of impeachment) had been provided for by the committee of detail, and such trial was to be had in the State where the offence had been committed. The Convention, in order to secure the same right of a jury trial in cases where the offence had been committed out of any State, provided that the trial should be at such place or places as the Congress might by law have directed.[357]

These additions, with one other which included within the judicial power all cases to which the United States might be party; the transfer of the trial of impeachments to the Senate; and the transfer to the judiciary of controversies between the States respecting jurisdiction or territory, and controversies respecting land titles claimed under the grants of different States,—were the principal changes and improvements made in the plan of the committee.

The details of the arrangement will perhaps fail to interest the general reader. Yet I cannot but think that to understand the purpose and operation of this department of the national government would be a very desirable acquisition for any of my readers not already possessed of it; and having completed the description of the mode in which the judicial power was constructed, I shall conclude this part of the subject with a brief statement of its constitutional functions.

One of the leading purposes for which this branch of the government was established, was to enable the Constitution to operate upon individuals, by securing their obedience to its commands, and by protecting them in the enjoyment of the rights and privileges which it confers. The government of the United States was eminently intended, among other purposes, to secure certain personal rights, and to exact certain personal duties. The Constitution confers on the general government a few special powers, but it confers them in order that the general government may accomplish for the people of each State the advantages and blessings for which the State governments are presumed to be, and have in fact proved to be, inadequate. It lays upon the governments and people of the States certain restrictions, and it lays them for the protection of the people against an exercise of State power deemed injurious to the general welfare. The government of the United States, therefore, is not only a government which seeks to protect the welfare and happiness of the people who live under it, but it is so constructed as to make its citizens directly and individually its subjects, exacting of them certain duties, and securing to them certain rights. It comes into this relation by reason of its supreme legislative power over certain interests, and the supreme authority of its restrictions upon the powers of the States; and it is enabled to make this relation effectual through its judicial department, which can take cognizance of every duty that the Constitution exacts and of every right that it confers, whenever they have assumed a shape in which judicial power can act upon them. Let us take, as illustrations of this function of the national judiciary, a single instance of the obedience required by the Constitution, and also one of a right which it protects. The Constitution empowers Congress to lay and collect duties; which, when they are laid and incurred, become a debt due from the individual owner of the property on which they are assessed to the general government. Payment, in disputed cases, might have been left to be enforced by executive power; but the Constitution has interposed the judicial department, as the more peaceful agent, which can at once adjudicate between the government and the citizen, and compel the payment of what is found due. Again, the Constitution provides that no State shall pass any law impairing the obligation of contracts. An individual supposing himself to be aggrieved by such a law might have been left to obtain such redress as the judicial or legislative authorities of the State might be disposed to give him; but the Constitution enables him finally to resort to the national judiciary, which has power to relieve him against the operation of the law upon his personal rights, while the law itself may be left upon the statute-book of the State.

But while the judicial department of the general government was thus designed to enforce the duties and protect the rights of individuals, it is obvious that, in a system of government where such rights and duties are to be ascertained by the provisions of a fundamental law framed for the express purpose of defining the powers of the general government and of each of its departments, and establishing certain limits to the powers of the States, the mere act of determining the existence of such rights or duties may involve an adjudication upon the question, whether acts of legislative or executive power are in conformity with the requirements of the fundamental law. On the one hand, the judicial department is to see that the legislative authority of the Union does not exact of individuals duties which are not within its prescribed powers, and that no department of the general government encroaches upon the rights of any other, or upon the rights of the States; and, on the other hand, it has to see that the legislative authority of the States does not encroach upon the powers conferred upon the general government, or violate the rights which the Constitution secures to the citizen. All this may be, and constantly is, involved in judicial inquiries into the rights, powers, functions, and duties of private citizens or public officers; and therefore, in order that the judicial power should be able effectually to discharge its functions, it must possess authority, for the purposes of the adjudication, to declare even an act of legislation to be void, which conflicts with any provision of the Constitution.

There were great differences of opinion in the Convention upon the expediency of giving to the judges, as expositors of the Constitution, power to declare a law to be void;[358] and undoubtedly such a power, if introduced into some governments, would be legislative in its nature, whether the persons who were to exercise it should be called judges, or be clothed with the functions of a council of revision. But under a limited and written constitution, such a power, when given in the form and exercised in the mode provided for in the Constitution of the United States, is strictly judicial. This is apparent from the question that is to be determined. It arises in a judicial controversy respecting some right asserted by or against an individual; and the matter to be determined is whether an act of legislation, supposed to govern the case as law, is itself in conformity to the supreme law of the Constitution. In a government constituted like ours, this question must be determined by some one of its departments. If it be left with the executive to decide finally what laws shall be executed, because they are consistent with the Constitution, and what laws shall be suspended, because they violate the Constitution, this practical inconvenience may arise, namely, that the decision is made upon the abstract question, before a case to be governed by the law has arisen. If the legislature were empowered to determine, finally, that the laws which they enact are constitutional, the same practical difficulty would exist; and the individual, whose rights or interests may be affected by a law, when put into operation, would have no opportunity to be heard upon what in our form of government is a purely juridical question, on which every citizen should be heard, if he desires it, before the law is enforced in his case. On the other hand, if the final and authoritative determination is postponed until the question arises in the course of a judicial controversy respecting some right or duty or power of an individual who is to be affected by the law, or who acts under it, the question itself is propounded not in the abstract, but in the concrete; not in reference to the bearing of the law upon all possible cases, but to its bearing upon the facts of a single case. In this aspect, the question is of necessity strictly judicial. To withhold from the citizen a right to be heard upon the question which in our jurisprudence is called the constitutionality of a law, when that law is supposed to govern his rights or prescribe his duties, would be as unjust as it would be to deprive him of the right to be heard upon the construction of the law, or upon any other legal question that arises in the cause. The citizen lives under the protection, and is subject to the requirements, of a written fundamental law. No department of the national, or of any State government, can lawfully act otherwise than according to the powers conferred or the restrictions imposed by that instrument. If the citizen believe himself to be aggrieved by some action of either government which he supposes to be in violation of the Constitution, and his complaint admit of judicial investigation, he must be heard upon that question, and it must be adjudicated, or there can be no administration of the laws worthy of the name of justice.

It is interesting, therefore, to observe how this function of the judicial power gives to the operation of the government a comparatively high degree of simplicity, exactness, and directness, notwithstanding the refined and complex character of the system which its framers were obliged to establish. To judge of the merits of that system, in this particular, it is necessary to recur again to those alternative measures, to which I have frequently referred, and which lay directly in their path. One of these measures was that of a council of revision, to be charged with the duty of arresting improper laws. Besides the objection which has been already alluded to,—that the question of the conformity of a law to the Constitution would have thus been finally passed upon in the abstract,—such an institution, although theoretically confined to this inquiry, would have become practically a third legislative chamber; for it would inevitably have happened that considerations of expediency would also have found their way into the deliberations of a numerous body appointed to exercise a revisory power over all acts of legislation. There is no mode in which the question of constitutional power to enact a law can be determined, without the influence of considerations of policy or expediency, so effectually, as by confining the final determination to the special operation of the law upon the facts of an individual case. When the tribunal that is to decide this question is, by the very form in which it is required to act, limited to the bearing of the law upon some right or duty of an individual placed in judgment by a record, it is at once relieved of the responsibility, and in a great degree freed from the temptation, of considering the policy of the legislation. If, therefore, it be conceded—as every one will concede—that, whatever public body is specially instituted for the purpose of submitting the acts of the legislature to the test of the Constitution, it should neither possess the power, nor be exposed to the danger, of invading the legislative province, by acting upon motives of expediency, it must be allowed that the framers of the Constitution did wisely in rejecting the artificial, cumbrous, and hazardous project of a council of revision. The plan of such a council was, it is true, much favored, and indeed insisted upon, by some of the wisest men in the Convention. But it was urged at a time when the negative that was to be given to the President had not been settled, and when he had not been made sufficiently independent of the legislature to insure his unfettered employment of the negative that might be given to him. The purpose of the proposed council of revision was to strengthen his hands, by uniting the judges with him in the exercise of the "veto." This would have given to the judges a control both over the question of constitutional power and the question of legislative policy. As to the latter, it became unnecessary, as well as inexpedient, to unite the judges with the President, after he had been clothed with a suitable negative, and after his election had been taken from the legislature; and as to the former question, the final arrangement of the judicial power made it equally unnecessary to form the judges into a council of revision, since, if the President should fail to arrest an unconstitutional law, when presented for his approval, it could be tested in the ordinary course of judicial proceedings after it had gone into operation.

But the conformity of laws of Congress to the Constitution was not all that was to be secured. Some prudent and effectual means were to be devised, by which the acts of the State governments could be subjected to the same test. The project of submitting the laws of the States to some department of the general government, while they were in the process of being enacted, or before they could have the form of law, was full of inconvenience and hazard. It could not have been attempted without an injury to State pride, that would have aroused an inextinguishable opposition to the national authority, even if the plan could once have been assented to. Yet there was no other alternative, unless the judicial power of the general government should be so constructed as to enable it to take the same cognizance of a constitutional question, when arising upon the law of a State, that it was to take of such a question when arising upon an act of Congress. The same necessity would exist in the one case, as in the other, for a power within the general government to give practical effect to that supremacy which the Constitution was to claim for itself, for treaties, and for the laws passed in pursuance of its provisions. All the restrictions which the Constitution was to lay upon the powers of the States would be nugatory, if the States themselves were to be the final judges of their meaning and operation. This transcendent power of interpretation and application, so logically necessary, and yet so certain to wound and irritate, if exercised by direct interference, could be wielded, without injurious results, through the agency of judicial forms, by a judicial investigation into personal rights, when affected by the action of a State government, just as it could be in reference to the acts of any department of the national government that could be made the subject of proceedings in a court of justice.

The relation of the judicial power to the execution of treaties rests upon the same grounds of paramount necessity. It is not merely for the sake of uniformity of interpretation, that the national judiciary is authorized to decide finally all cases arising under treaties, although uniformity of interpretation is essential to the preservation of the public faith; but it is in order that the treaty shall be executed, by being placed beyond the hazards both of wrong construction and of interested opposition. The memorable instance of the Treaty of Peace, the absolute failure of which in point of execution, before the adoption of the Constitution, has been described in the first volume of this work, presents the great illustration, in our constitutional history, of the only mode in which the supremacy of treaty stipulations as law can be maintained in our system of government. "The United States in Congress assembled," under the Confederation, had the same exclusive authority to make treaties that is now possessed by the President and the Senate under the Constitution, and a treaty was in theory as obligatory then, upon the separate States and their inhabitants, as it is now. But it has been found to be an axiom of universal application in the art of government, that a supremacy which is merely theoretical is no real supremacy. If a stipulation made by the proper authority with a foreign government is to have the force of law, requiring the obedience of individuals and of all public authorities, its execution must be committed to a judiciary acting upon private rights without the hinderance or influence of adverse legislation.

There is another branch of the judicial power which illustrates in a striking manner the object embraced in the preamble of the Constitution, where the people of the United States declare it to be their purpose "to establish justice." This is found in the provision for a special jurisdiction over the rights of persons bearing a certain character. Like almost everything else in the Constitution, this feature of the judicial power sprang from a necessity taught by previous and severe experience. Reasoning from the mere nature of such a government as that of the United States, it might seem that the judicatures of the separate States would be sufficient for the administration of justice in all cases in which private rights alone are concerned, and by which no power or interest of the general government, and no provision of the general Constitution, is likely to be affected. But we find in the judicial power of the United States a particular jurisdiction given on account of the mere civil characters of the parties to a controversy; and its existence there is to be accounted for upon other than speculative reasons. From the Declaration of Independence to the day of the ratification of the Constitution, the judicial tribunals of the States had been unable to administer justice to foreigners, to citizens of other States, to foreign governments and their representatives, and to the governments of their sister States, so as to command the confidence and satisfy the reasonable expectations of an enlightened judgment. Hence the necessity for opening the national courts to these various classes of parties, whose different positions may now be briefly considered.

In a country of confederated States, each possessing a full power of legislation, it could not but happen—as it did constantly happen in this Union before the adoption of the Constitution—that the determination of controversies between citizens of the State where the adjudication was to be had, and citizens of another State, would be exposed to influences unfavorable to the ends of justice. In truth, one of the parties in such a controversy was virtually an alien, in the tribunal which he was obliged to enter; for although the Articles of Confederation undertook to secure to the free inhabitants of each State all the privileges and immunities of free citizens in the several States, yet it is obvious that the efficacy of such a provision must depend almost wholly upon the spirit of the tribunals, and upon their capacity to give effect to such a declaration of rights, against a course of State policy or the positive enactments of a State code. The chief difficulty of the condition of affairs existing before the Constitution lay not so much in the hazards of a violation of principle through local prejudice, or the superior force of local policy or legislation,—although these influences were always powerful,—as in the fact that, when these influences were likely to be most active, or were most feared, there was no tribunal to which resort could be had, and which was known to be beyond their operation and their reach. The articles of compact between the States had intended to remove from the citizens of the different States the disabilities of practical alienage under which they would have stood in the tribunals of each other. But with that mere declaration those articles stopped. If the litigant saw that the local law was likely to be administered to him as if he were a foreigner, or feared that the scales of justice would not be held with an impartial hand, he could go nowhere else for a decision. This was a great evil; for much of the value of every judicature depends upon the confidence it inspires.

There were still other and perhaps stronger reasons for creating an independent jurisdiction, to be resorted to by foreigners, in controversies with citizens of the States. No clause in the Constitution was to make them equal in rights with citizens, and for the very reason of their alienage, therefore, it was necessary to give them access to tribunals organized under the authority of the general government, which would be responsible to foreign powers for the treatment that their subjects might receive in the United States. Ambassadors, too, and other foreign ministers, would not only be aliens, but would possess the character of representatives of their sovereigns; and consuls would be the public agents of their governments, although not bearing the diplomatic character. These functionaries were therefore permitted to resort to the judicial power of the United States; and for the purpose of more effectually protecting the national interests that might be involved in their personal or official relations, original jurisdiction was given to the Supreme Court in all cases affecting them.

In addition to these, there were other controversies, which, as we have seen, were included within the judicial power of the United States, on account of the character of the parties; namely, those to which the United States might be a party; those to which a State of the Union might be a party, where the opposite party was another State of the Union, or a citizen of another State of the Union, or a foreign state or its citizens or subjects; and those between citizens of a State of the Union, and foreign states, citizens, or subjects. Finally, controversies between citizens of the same State claiming lands under grants of different States were placed under the same jurisdiction for similar reasons;—because the State tribunals could not be expected to afford that degree of impartiality which the circumstances of these several cases required.

There remains only one other branch of the jurisdiction conferred by the Constitution on the tribunals of the United States which it is necessary to notice; namely, the admiralty and maritime jurisdiction. With respect to the criminal jurisdiction in admiralty, in cases of piracies and felonies committed on the high seas, and the prize jurisdiction, the Articles of Confederation had given to the Congress the exclusive power of appointing courts for the trial of the former, and for hearing and finally determining appeals in all cases of capture. Such appeals were taken from the State courts of admiralty,—tribunals which also possessed and exercised a civil jurisdiction corresponding to that of the admiralty in England, but in practice somewhat more extensive. When the Constitution was framed, it was perceived to be expedient, on account of the relation of maritime commerce to the intercourse of the people of the United States with foreign nations, or to the intercourse of the people of different States with each other, to give the whole civil as well as criminal jurisdiction in admiralty, and the entire prize jurisdiction, original as well as appellate, to the government of the Union. This was effected by the comprehensive provision, which gives the judicial power cognizance of "all cases of admiralty and maritime jurisdiction"; expressions which have often been, and are still likely to be, the subject of much forensic controversy with respect to the particular transactions, of a civil nature, intended to be embraced in the jurisdiction, but in reference to which there is nothing in the known proceedings of the Convention, other than what is to be inferred from the language selected, that affords any special evidence of the intention of the framers of the Constitution.