Article 3, Section 2, Clause 2

[Volume 4, Page 385]

Document 11

Joseph Story, Commentaries on the Constitution 3:§§ 1696--1702, 1748--57, 1762--63, 1767--68


§ 1696. The first remark arising out of this clause is, that, as the judicial power of the United States extends to all the cases enumerated in the constitution, it may extend to all such cases in any form, in which judicial power may be exercised. It may, therefore, extend to them in the shape of original, or appellate jurisdiction, or both; for there is nothing in the nature of the cases, which binds to the exercise of the one in preference to the other. But it is clear, from the language of the constitution, that, in one form or the other, it is absolutely obligatory upon congress, to vest all the jurisdiction in the national courts, in that class of cases at least, where it has declared, that it shall extend to "all cases."

§ 1697. In the next place, the jurisdiction, which is by the constitution to be exercised by the Supreme Court in an original form, is very limited, and extends only to cases affecting ambassadors, and other public ministers, and consuls, and cases, where a state is a party. And congress cannot constitutionally confer on it any other, or further [Volume 4, Page 386] original jurisdiction. This is one of the appropriate illustrations of the rule, that the affirmation of a power in particular cases, excludes it in all others. The clause itself would otherwise be wholly inoperative and nugatory. If it had been intended to leave it to the discretion of congress, to apportion the judicial power between the supreme and inferior courts, according to the will of that body, it would have been useless to have proceeded further, than to define the judicial power, and the tribunals, in which it should be vested. Affirmative words often, in their operation, imply a negative of other objects, than those affirmed; and in this case a negative, or exclusive sense, must be given to the words, or they have no operation at all. If the solicitude of the convention, respecting our peace with foreign powers, might induce a provision to be made, that the Supreme Court should have original jurisdiction in cases, which might be supposed to affect them; yet the clause would have proceeded no further, than to provide for such cases, unless some further restriction upon the powers of congress had been intended. The direction, that the Supreme Court shall have appellate jurisdiction in all cases, with such exceptions, as congress shall make, will be no restriction, unless the words are to be deemed exclusive of original jursidiction. And accordingly, the doctrine is firmly established, that the Supreme Court cannot constitutionally exercise any original jurisdiction, except in the enumerated cases. If congress should confer it, it would be a mere nullity.

§ 1698. But although the Supreme Court cannot exercise original jurisdiction in any cases, except those specially enumerated, it is certainly competent for congress to vest in any inferior courts of the United States original jurisdiction of all other cases, not thus specially assigned to the Supreme Court; for there is nothing in the constitution, which excludes such inferior courts from the exercise of such original jurisdiction. Original jurisdiction, so far as the constitution gives a rule, is co-extensive with the judicial power; and except, so far as the constitution has made any distribution of it among the courts of the United States, it remains to be exercised in an original, or appellate form, or both, as congress may in their wisdom deem fit. Now, the constitution has made no distribution, except of the original and appellate jurisdiction of the Supreme Court. It has no where insinuated, that the inferior tribunals shall have no original jurisdiction. It has no where affirmed, that they shall have appellate jurisdiction. Both are left unrestricted and undefined. Of course, as the judicial power is to be vested in the supreme and inferior courts of the Union, both are under the entire control and regulation of congress.

§ 1699. Indeed, it has been a matter of much question, whether the grant of original jurisdiction to the Supreme Court, in the enumerated cases, ought to be construed to give to that court exclusive original jurisdiction, even of those cases. And it has been contended, that there is nothing in the constitution, which warrants the conclusion, that it was intended to exclude the inferior courts of the Union from a concurrent original jurisdiction. The judiciary act of 1789, (ch. 20, § 11, 13,) has manifestly proceeded upon the supposition, that the jurisdiction was not exclusive; but, that concurrent original jurisdiction in those cases might be vested by congress in inferior courts. It has been strongly intimated, indeed, by the highest tribunal, on more than one occasion, that the original jurisdiction of the Supreme Court in those cases is exclusive; but the question remains to this hour without any authoritative decision.

§ 1700. Another question of a very different nature is, whether the Supreme Court can exercise appellate jurisdiction in the class of cases, of which original jurisdiction is delegated to it by the constitution; in other words, whether the original jurisdiction excludes the appellate; and so, e converso, the latter implies a negative of the former. It has been said, that the very distinction taken in the constitution, between original and appellate jurisdiction, presupposes, that where the one can be exercised, the other cannot. For example, since the original jurisdiction extends to cases, where a state is a party, this is the proper form, in which such cases are to be brought before the Supreme Court; and, therfore, a case, where a state is a party, cannot be brought before the court, in the exercise of its appellate jurisdiction; for the affirmative here, as well as in the cases of original jurisdiction, includes a negative of the cases not enumerated.

§ 1701. If the correctness of this reasoning were admitted, it would establish no more, than that the Supreme Court could not exercise appellate jurisdiction in cases, where a state is a party. But it would by no means establish the doctrine, that the judicial power of the United States did not extend, in an appellate form, to such cases. The exercise of appellate jurisdiction is far from being limited, by the terms of the constitution, to the Supreme Court. There can be no doubt, that congress may create a succession of inferior tribunals, in each of which it may vest appellate, as well as original jurisdiction. This results from the very nature of the delegation of the judicial power in the constitution. It is delegated in the most general terms; and may, therefore, be exercised under the authority of congress, under every variety of form of original and appellate jurisdiction. There is nothing in the instrument, which restrains, or limits the power; and it must, consequently, subsist in the utmost latitude, of which it is in its nature susceptible. The result then would be, that, if the appellate jurisdiction over cases, to which a state is a party, could not, according to the terms of the constitution, be exercised by the Supreme Court, it might be exercised exclusively by an inferior tribunal. The soundness of any reasoning, which would lead us to such a conclusion, may well be questioned.

§ 1702. But the reasoning itself is not well founded. It proceeds upon the ground, that, because the character of the party alone, in some instances, entitles the Supreme Court to maintain original jurisdiction, without any reference to the nature of the case, therefore, the character of the case, which in other instances is made the very foundation of appellate jurisdiction, cannot attach. Now, that is the very point of controversy. It is not only not admitted, but it is solemnly denied. The argument might just as well, and with quite as much force, be pressed in the opposite direction. It might be said, that the appellate jurisdiction [Volume 4, Page 387] is expressly extended by the constitution to all cases in law and equity, arising under the constitution, laws, and treaties of the United States, and, therefore, in no such cases could the Supreme Court exercise original jurisdiction, even though a state were a party.

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§ 1748. It would be difficult, and perhaps not desirable, to lay down any general rules in relation to the cases, in which the judicial power of the courts of the United States is exclusive of the state courts, or in which it may be made so by congress, until they shall be settled by some positive adjudication of the Supreme Court. That there are some cases, in which that power is exclusive, cannot well be doubted; that there are others, in which it may be made so by congress, admits of as little doubt; and that in other cases it is concurrent in the state courts, at least until congress shall have passed some act excluding the concurrent jurisdiction, will scarcely be denied. It seems to be admitted, that the jurisdiction of the courts of the United States is, or at least may be, made exclusive in all cases arising under the constitution, laws, and treaties of the United States; in all cases affecting ambassadors, other public ministers and consuls, in all cases (in their character exclusive) of admiralty and maritime jurisdiction; in controversies, to which the United States shall be a party; in controversies between two or more states; in controversies between a state and citizens of another state; and in controversies between a state and foreign states, citizens, or subjects. And it is only in those cases, where, previous to the constitution, state tribunals possessed jurisdiction, independent of national authority, that they can now constitutionally exercise a concurrent jurisdiction. Congress, indeed, in the Judiciary Act of 1789, (ch. 20, § 9, 11, 13,) have manifestly legislated upon the supposition, that, in all cases, to which the judicial power of the United States extends, they might rightfully vest exclusive jurisdiction in their own courts.

§ 1749. It is a far more difficult point, to affirm the right of congress to vest in any state court any part of the judicial power confided by the constitution to the national government. Congress may, indeed, permit the state courts to exercise a concurrent jurisdiction in many cases; but those courts then derive no authority from congress over the subject-matter, but are simply left to the exercise of such jurisdiction, as is conferred on them by the state constitution and laws. There are, indeed, many acts of congress, which permit jurisdiction over the offences therein described, to be exercised by state magistrates and courts; but this (it has been said by a learned judge,) is not, because such permission was considered to be necessary, under the constitution, to vest a concurrent jurisdiction in those tribunals; but because the jurisdiction was exclusively vested in the national courts by the judiciary act; and consequently could not be otherwise executed by the state courts. But, he has added, "for I hold it to be perfectly clear, that congress cannot confer jurisdiction upon any courts, but such as exist under the constitution and laws of the United States; although the state courts may exercise jurisdiction in cases authorized by the laws of the state, and not prohibited by the exclusive jurisdiction of the federal courts." This latter doctrine was positively affirmed by the Supreme Court in Martin v. Hunter; and indeed seems, upon general principles, indisputable. In that case, the court said, "congress cannot vest any portion of the judicial power of the United States, except in courts, ordained and established by itself."

§ 1750. In regard to jurisdiction over crimes committed against the authority of the United States, it has been held, that no part of this jurisdiction can, consistently with the constitution, be delegated to state tribunals. It is true, that congress has, in various acts, conferred the right to prosecute for offences, penalties, and forfeitures, in the state courts. But the latter have, in many instances, declined the jurisdiction, and asserted its unconstitutionality. And certainly there is, at the present time, a decided preponderance of judicial authority in the state courts against the authority of congress to confer the power.

§ 1751. In the exercise of the jurisdiction confided respectively to the state courts, and those courts of the United States, (where the latter have not appellate jurisdiction,) it is plain, that neither can have any right to interfere with, or control, the operations of the other. It has accordingly been settled, that no state court can issue an injunction upon any judgment in a court of the United States; the latter having an exclusive authority over its own judgments and proceedings. Nor can any state court, or any state legislature, annul the judgments of the courts of the United States, or destroy the rights acquired under them; nor in any manner deprive the Supreme Court of its appellate jurisdiction; nor in any manner interfere with, or control the process (whether mesne or final) of the courts of the United States; nor prescribe the rules or forms of proceeding, nor effect of process, in the courts of the United States; nor issue a mandamus to an officer of the United states, to compel him to perform duties, devolved on him by the laws of the United States. And although writs of habeas corpus have been issued by state judges, and state courts, in cases, where the party has been in custody under the authority of process of the courts of the United States, there has been considerable diversity of opinion, whether such an exercise of authority is constitutional; and it yet remains to be decided, whether it can be maintained.

§ 1752. Indeed, in all cases, where the judicial power of the United States is to be exercised, it is for congress alone to furnish the rules of proceeding, to direct the process, to declare the nature and effect of the process, and the mode, in which the judgments, consequent thereon, shall be executed. No state legislature, or state court, can have the slightest right to interfere; and congress are not even capable of delegating the right to them. They may authorize national courts to make general rules and orders, for the purpose of a more convenient exercise of their jurisdiction; but they cannot delegate to any state authority any control over the national courts.

§ 1753. On the other hand the national courts have no authority (in cases not within the appellate jurisdiction of the United States) to issue injunctions to judgments in the state courts; or in any other manner to interfere with their jurisdiction or proceedings.

§ 1754. Having disposed of these points, we may again [Volume 4, Page 388] recur to the language of the constitution for the purpose of some farther illustrations. The language is, that "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."

§ 1755. In the first place, it may not be without use to ascertain, what is here meant by appellate jurisdiction; and what is the mode, in which it may be exercised. The essential criterion of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. In reference to judicial tribunals, an appellate jurisdiction, therefore, necessarily implies, that the subject matter has been already instituted in, and acted upon, by some other court, whose judgment or proceedings are to be revised. This appellate jurisdiction may be exercised in a variety of forms, and indeed in any form, which the legislature may choose to prescribe; but, still, the substance must exist, before the form can be applied to it. To operate at all, then, under the constitution of the United States, it is not sufficient, that there has been a decision by some officer, or department of the United States; it might be by one clothed with judicial authority, and acting in a judicial capacity. A power, therefore, conferred by congress on the Supreme Court, to issue a mandamus to public officers of the United States generally, is not warranted by the constitution; for it is, in effect, under such circumstances, an exercise of original jurisdiction. But where the object is to revise a judicial proceeding, the mode is wholly immaterial; and a writ of habeas corpus, or mandamus, a writ of error, or an appeal, may be used, as the legislature may prescribe.

§ 1756. The most usual modes of exercising appellate jurisdiction, at least those, which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin, and removes a cause, entirely subjecting the fact, as well as the law, to a review and a re-trial. A writ of error is a process of common law origin; and it removes nothing for reexamination, but the law. The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury.

§ 1757. It is observable, that the language of the constitution is, that "the Supreme Court shall have appellate jurisdiction, both as to law and fact." This provision was a subject of no small alarm and misconstruction at the time of the adoption of the constitution, as it was supposed to confer on the Supreme Court, in the exercise of its appellate jurisdiction, the power to review the decision of a jury in mere matters of fact; and thus, in effect, to destroy the validity of their verdict, and to reduce to a mere form the right of a trial by jury in civil cases. The objection was at once seized hold of by the enemies of the constitution; and it was pressed with an urgency and zeal, which were well nigh preventing its ratification. There is certainly some foundation, in the ambiguity of the language, to justify an interpretation, that such a review might constitutionally be within the reach of the appellate power, if congress should choose to carry it to that extreme latitude. But, practically speaking, there was not the slightest danger, that congress would ever adopt such a course, even if it were within their constitutional authority; since it would be at variance with all the habits, feelings, and institutions of the whole country. At least it might be affirmed, that congress would scarcely take such a step, until the people were prepared to surrender all the great securities of their civil, as well as of their political rights and liberties; and in such an event the retaining of the trial by jury would be a mere mockery. The real object of the provision was to retain the power of reviewing the fact, as well as the law, in cases of admiralty and maritime jurisdiction. And the manner, in which it is expressed, was probably occasioned by the desire to avoid the introduction of the subject of a trial by jury in civil cases, upon which the convention were greatly divided in opinion.

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§ 1762. These views, however reasonable they may seem to considerate minds, did not wholly satisfy the popular opinion; and as the objection had a vast influence upon public opinion, and amendments were proposed by various state conventions on this subject, congress at its first session, under the guidance of the friends of the constitution, proposed an amendment, which was ratified by the people, and is now incorporated into the constitution. It is in these words. "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of a trial by jury shall be preserved. And no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law." This amendment completely struck down the objection; and has secured the right of a trial by jury, in civil cases, in the fullest latitude of the common law. Like the other amendments, proposed by the same congress, it was coldly received by the enemies of the constitution, and was either disapproved by them, or drew from them a reluctant acquiescence. It weakened the opposition by taking away one of the strongest points of attack upon the constitution. Still it is a most important and valuable amendment; and places upon the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political and civil liberty.

§ 1763. Upon a very recent occasion the true interpretation and extent of this amendment came before the Supreme Court for decision, in a case from Louisiana, where the question was, whether the Supreme Court could entertain a motion for a new trial, and re-examine the facts tried by a jury, that being the practice under the local law, and there being an act of congress, authorizing the courts of the United States in Louisiana to adopt the local practice, with certain limitations. The Supreme Court held, that no authority was given by the act to re-examine the facts; and if it had been, an opinion was intimated of the most serious doubts of its constitutionality.

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§ 1767. The appellate jurisdiction is to be "with such exceptions, and under such regulations, as the congress shall prescribe." But, here, a question is presented upon the construction of the constitution, whether the appellate jurisdiction attaches to the Supreme Court, subject to be [Volume 4, Page 389] withdrawn and modified by congress; or, whether an act of congress is necessary to confer the jurisdiction upon the court. If the former be the true construction, then the entire appellate jurisdiction, if congress should make no exceptions or regulations, would attach proprio vigore to the Supreme Court. If the latter, then, notwithstanding the imperative language of the constitution, the Supreme Court is lifeless, until congress have conferred power on it. And if congress may confer power, they may repeal it. So that the whole efficiency of the judicial power is left by the constitution wholly unprotected and inert, if congress shall refrain to act. There is certainly very strong grounds to maintain, that the language of the constitution meant to confer the appellate jurisdiction absolutely on the Supreme Court, independent of any action by congress; and to require this action to divest or regulate it. The language, as to the original jurisdiction of the Supreme Court, admits of no doubt. It confers it wihout any action of congress. Why should not the same language, as to the appellate jurisdiction, have the same interpretation? It leaves the power of congress complete to make exceptions and regulations; but it leaves nothing to their inaction. This construction was asserted in argument at an earlier period of the constitution. It was at that time denied; and it was held by the Supreme Court, that, if congress should provide no rule to regulate the proceedings of the Supreme Court, it could not exercise any appellate jurisdiction. That doctrine, however, has, upon more mature deliberation, been since overturned; and it has been asserted by the Supreme Court, that, if the judicial act (of 1789) had created the Supreme Court, without defining, or limiting its jurisdiction, it must have been considered, as possessing all the jurisdiction, which the constitution assigns to it. The legislature could have exercised the power possessed by it of creating a Supreme Court, as ordained by the constitution; and, in omitting to exercise the right of excepting from its constitutional powers, would have necessarily left those constitutional powers undiminished. The appellate powers of the Supreme Court are not given by the judicial act (of 1789). They are given by the constitution. But they are limited, and regulated by that act, and other acts on the same subject. And where a rule is provided, all persons will agree, that it cannot be departed from.

§ 1768. It should be added, that, while the jurisdiction of the courts of the United States is almost wholly under the control of the regulating power of congress, there are certain incidental powers, which are supposed to attach to them, in common with all other courts, when duly organized, without any positive enactment of the legislature. Such are the power of the courts over their own officers, and the power to protect them and their members from being disturbed in the exercise of their functions.

The Founders' Constitution
Volume 4, Article 3, Section 2, Clause 2, Document 11
The University of Chicago Press

Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.