CHAPTER XXXV.

THE EXTENT OF THE JUDICIAL POWER.

ARTICLE III.

Section 2, Clause 1.—The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State, or the citizens thereof, and foreign States, citizens, or subjects.

532. Cases. A case, within the meaning of the Constitution, is a subject on which the judicial power is capable of acting, and which has been submitted to it in a manner required by law. The judicial power extends to such cases, and to nothing else. The powers of the National courts are very great, but until a case comes before them they cannot act in any manner.

Some of the States have had councils of revision, consisting of the superior judges and other officers, charged with reviewing the enactments of the Legislature as soon as passed, and setting aside such as were deemed unconstitutional. Such a proposition was made in the Federal Convention, but the judges were wisely limited to hearing and determining cases.

533. Law and Equity.-The judicial power extends to all cases in law and equity arising, etc. This language refers to the different modes of proceeding in the courts of common law and the courts of equity, recognized in the English system of jurisprudence.

In vindicating the equity jurisdiction of the National courts, Mr. Hamilton says in "The Federalist": "It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains. These are contracts, in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be impossible for the Federal judicatories to do justice without an equitable, as well as a legal, jurisdiction. Agreements to convey lands claimed under the grants of different States, may afford another example of the necessity of an equitable jurisdiction in the Federal courts." 1

534. The Constitution, Laws, and Treaties.-The judicial power extends to all cases in law and equity arising under the Constitution, laws, and treaties of the United States. This makes it the duty of the judges to interpret and to construe these three great divisions of the law. The need of a judiciary having this wide jurisdiction is obvious. Hamilton wrote in "The Federalist," that "thirteen independent courts of final jurisdiction over the same causes [still more forty-four] arising upon the same laws, is a hydra in government from which nothing but contradiction and confusion can proceed."

"The judges declare the law, they do not make it," says Chief Justice Marshall; “the judicial power has no will in any case. Judicial power as contra-distinguished from the power of the law has no existence; courts are the mere instruments of the law, and can will nothing."

535. Classes of Cases.-The judicial power extends to the following subjects: (1) All cases in law and equity arising under the Constitution, laws, and treaties of the United States; (2) Cases affecting public ministers and consuls; (3) Cases of admiralty and maritime jurisprudence; (4) Controversies to which the United States is a party; (5) Controversies between two or more States; (6) Controversies between a State and citizens of another State; (7) Controversies between citizens of different States; (8) Con

1 No. 80.

troversies between citizens of the same State claiming lands under grants of different States; (9) Controversies between a State, or its citizens, and foreign states, citizens, or subjects.

Ministers are the accredited agents of foreign governments to our own, and the extension of the State judicial power to cases affecting them would at once lead to troublesome complications; foreign powers hold the United States responsible for the treatment of their representatives, not the States. It is as clear that the Federal courts should have exclusive jurisdiction in admiralty, or maritime jurisprudence, as that Congress should have exclusive power to legislate concerning commerce. The United States could not with either safety or dignity become a party to a suit in any but their own tribunals; while the same tribunals, free from local jealousy and contention, and conducted in a national spirit, are the fittest ones in the world to adjudicate controversies between States, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens, or subjects.

The language, "to all cases affecting ambassadors,” etc., has been the subject of judicial construction. The Supreme Court has decided, for example, that an indictment for an assault upon a public minister, is not such a case within the meaning of the Constitution.1

536. Chisholm v. Georgia.-The sixth of the above provisions extended the judicial power to controversies between a State and citizens of another State; while the ninth extended it to controversies between States and foreign citizens or subjects. It seems to have been assumed while the Constitution was in course of ratification, that these provisions related only to suits brought by the States, and did not authorize suits by such parties against them; or, at the utmost, that the States should not be made defendents in suits against their will. Soon, however, such citizens and subjects began to bring actions against States, and States began to take alarm. It was not consonant with the ideas then current that States should be brought before a legal tribunal by a private individual, whether an American or a foreigner. The sole question was whether such suits were authorized by the Constitution. This question was brought

1 The U. S. v. Ortega, 11 Wheaton 467.

to an issue in the celebrated case of Chisholm v. Georgia, decided by the Supreme Court in 1793.1 Delivering the judgment of the Court, Chief Justice Jay answered the question emphatically in the affirmative. This decision, which unfortunately was rendered by a divided Court, at once increased the alarm. The result was that Congress proposed, and a sufficient number of States ratified, the following amendment, which took effect in 1798:

537. Amendment XI.-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.

"This amendment at once made such actions as that of Chisholm v. Georgia impossible. A State may still be sued by another State or by a foreign state, but not by its citizens or subjects. It has also been decided that the prohibition extends to the citizens of a State. Thus, in Haus v. Louisiana the Supreme Court held : a state cannot, without its consent, be sued in a Circuit Court of the United States by one of its citizens, upon a suggestion that the case is one that arises under the Constitution of the United States.' 2 It is a common principle of law that a sovereign, as a State of the American Union or an independent power, cannot be made a defendant in a lawsuit, under ordinary conditions. The assumption is that such State or power will do what is right without compulsion. Still it should be added, that such sovereign may, by an act of its legislature, consent to be made such defendant, and States have sometimes done So. It should also be remarked that the eleventh Amendment did not interfere with the right of the States to use the National Courts; whatever rights the States had under the original Constitution they still have."

I. 2 Dallas 419.

2. 134 U. S. 1.

CHAPTER XXXVI.

THE JURISDICTION OF THE SEVERAL COURTS.

ARTICLE III.

Section 2, Clause 2.-In all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.

538. Kinds of Jurisdiction. A court has original jurisdiction of a case when the case may begin in that court; appellate jurisdiction, when a case begun in some lower court may be brought before it for review by some process provided by law, as by appeal and writ of error. A court has exclusive jurisdiction of a case when no other court can take cognizance of it, or administer a particular remedy with reference to it. Two or more courts have concurrent jurisdiction of a case when it may be tried in either of them at the will of the suitor.

539. Original Jurisdiction of the Supreme Court. -This includes cases affecting ambassadors, other public ministers, and consuls, and cases to which a State is a party. The Judiciary Act of 1789 gave the Court a wider original jurisdiction than the Constitution had conferred, but the Court decided in 1803 that Congress had no such power, and that the provision was unconstitutional.1 On the other hand, Congress has divided the original jurisdiction of the Supreme Court with inferior courts, and such legislation the Court has sustained. Chief Justice Waite discusses

1 Marbury v. Madison, I Cranch 137.