The Essentials of American Constitutional Law

by Francis Newton Thorpe

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]