powers, as its own wisdom and the public interest should require.

The judicial power of the United States is declared to ex

tend to all cases arising under treaties made under the *318 authority of the United States. It was an absolute grant of the judicial power in that case, and it was competent for the people of this country to invest the general government with that, or with any other powers they might deem proper and necessary, and to prohibit the states from the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact. Congress were bound, by the injunctions of the constitution, to create inferior courts, in which to vest all that judicial jurisdiction which was exclusively vested in the United States, and of which the Supreme Court cannot take any other than an appellate cognizance. The whole judicial power must be at all times vested, either in an original or appellate form, in some courts created under the authority of the United States. The grant of the judicial power was absolute, and it was imperative upon Congress to provide for the appellate jurisdiction of the federal courts, in all the cases in which judicial power was exclusively granted by the constitution, and not given, by way of original jurisdiction, to the Supreme Court.

The court, in their examination of the judicial power, supposed that the constitution took a distinction between two classes of enumerated cases. It intended that the judicial power, either in an original or appellate form, should extend absolutely to all cases in law and equity arising under the constitution, the laws of the United States, and treaties made under their authority; and to all cases affecting ambassadors, other public ministers and consuls; and to all cases of admiralty and maritime jurisdiction; because these cases were of vital importance to the sovereignty of the Union, and they entered into the national policy, and affected the national rights, and the law and comity of nations. The original or appellate jurisdiction ought, therefore, to be commensurate with the mischiefs intended to be remedied, and the policy in view. But in respect to another class of cases, the constitution seemed, ex industria, to drop the word all, and to extend the juris*319 diction of the *judiciary, not to all controversies, but to

controversies in which the United States were a party, or between two or more states, or between citizens of different states, &c., and to leave it to Congress to qualify the jurisdiction, original or appellate, in such manner as public policy might dictate.1 But whatever weight might be due to that distinction, it was held to be manifest, that the judicial power was, unavoidably, in some cases, exclusive of all state authority, and, in all others, might be made so at the election of Congress. The Judiciary Act, throughout every part of it, and particularly in the 9th, 11th, and 13th sections, assumed, that in all cases to which the judi'cial powers of the United States extended, Congress might rightfully vest exclusive jurisdiction in their own courts. The criminal, and the admiralty and maritime jurisdiction, must be exclusive; and it was only in those cases where, previous to the constitution, state tribunals possessed jurisdiction independent of national authority, that they could now constitutionally exercise a concurrent jurisdiction.

The exercise of appellate jurisdiction was not limited by the constitution to the Supreme Court. Congress might create a succession of inferior tribunals, in each of which it might vest appellate, as well as original jurisdiction. The appellate jurisdiction of the Supreme Court, in cases where it had not original jurisdiction, was declared to be subject to such exceptions and regulations as Congress might prescribe. It remained, therefore, entirely in the discretion of Congress, to cause the judicial power to be exercised in every variety of form of appellate jurisdiction, and the appellate power was not limited to cases pending in the courts of the United States. If it had been limited to cases in those courts, it would necessarily follow, that the jurisdiction of the federal courts must have been exclusive of state courts, in all the cases enumerated in the constitution. If the judicial power of the United States extends to all cases arising under the constitution, laws, and treaties of the Union, and to all cases of admiralty and maritime jurisdiction, *the state courts could not, consistently with the express grant in the constitution, entertain any jurisdiction in

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320

1 In Florida v. Georgia, 17 How. U. S. 478, the jurisdiction of the Supreme Court over suits between states, or suits to which the United States are a party, is examined at length in the prevailing opinion of the court and in the dissenting opinions of the minority.

those cases, without the right of appeal. If the state courts might entertain concurrent jurisdiction over any of those cases without control, then the appellate jurisdiction of the United States, as to such cases, would have no existence, which would be contrary to the manifest intent of the constitution. The appellate power of the federal courts must extend to the state courts, so long as the state courts entertain any concurrent jurisdiction over the cases which the constitution has declared shall fall within the cognizance of the judicial power. It is very plain that the constitution did contemplate that cases within the judicial cognizance of the United States would arise in the state courts, in the exercise of their ordinary jurisdiction; and that the state.courts would incidentally take cognizance of the cases arising under the constitution, the laws, and the treaties of the United States; and as the judicial power of the United States extended to all such cases, by the very terms of the constitution, it followed, as a necessary consequence, that the appellate jurisdiction of the courts of the United States must and did extend to the state tribunals, and attach upon every case within the cognizance of the judicial power.

All the enumerated cases of federal cognizance are those which touch the safety, peace, and sovereignty of the nation, or which presume that state attachments, state prejudices, state jealousies, and state interests, might sometimes obstruct or control the regular administration of justice. The appellate power, in all these cases, is founded on the clearest principles of policy and wisdom, and is deemed requisite to fulfil effectually the great and beneficent ends of the constitution. It is likewise necessary, in order to preserve uniformity of decision throughout the United States, upon all subjects within the purview of the constitution; and the mischiefs of opposite constructions and contradictory decisions in the different states, on all these points of general concern, would be deplorable. * The right of removal of a cause from a state court by a defendant, who is entitled to try his rights and assert his privileges in the national forum, is also the exercise of appellate jurisdiction; and the right of removal of a cause may exist before or after judgment, in the discretion of Congress. The Supreme Court, by a train of reasoning which ap

321

pears to be unanswerable and conclusive, came to the decision, that the appellate power of the United States did extend to cases pending in the state courts, and that the 25th section of the Judiciary Act of 1789, authorizing the exercise of this jurisdiction in the specified cases by a writ of error, was supported by the letter and spirit of the constitution. The judg ment of the Court of Appeals in Virginia, rendered on the mandate in the cause, and denying the appellate jurisdiction of the Supreme Court, was consequently reversed, and the judg ment of the District Court in Virginia, which the Court of Appeals in Virginia had reversed, was affirmed.

Whether the Supreme Court had authority to issue the compulsory process of mandamus to the state courts, to enforce the judgment of reversal, was a question which the court did not think it necessary to discuss or decide; and one of the judges, in the separate opinion which he gave in the cause, seemed to think that the Supreme Court, in the exercise of its appellate jurisdiction, was supreme over the parties and over the case, but that it had no compulsory control over the state tribunals. The court itself gave no intimation of an opinion whether it could or could not lawfully resort to compulsory or restrictive process, operating in personam upon the state tribunals; and it was no doubt deemed discreet not to assert more authority constitutionally vested in the court, than was necessary for the occasion. If the appellate jurisdiction be founded, as it no doubt was in that case, on a solid basis, it would seem to carry with it, as of course, all the coercive power incident to every such jurisdiction, and requisite to support it.

* 322

Writ of mandamus.

(2.) Another question which was largely discussed and profoundly considered by the Supreme Court, was touching its authority to issue a mandamus, when not arising in a case under its appellate jurisdiction, and when not required in the exercise of its original jurisdiction. In the case of Marbury v. Madison, (a) the plaintiff had been nominated by the President, and, by and with the advice and consent of the Senate, had been appointed a justice of the peace for the District of Columbia, and the appointment had

(a) 1 Cranch, 137.

been made complete and absolute by the President's signature to the commission, and the commission had been made complete by affixing to it the seal of the United States. The Secretary of State, after all this, withheld the commission, and the withholding of it was adjudged to be a violation of a vested legal right, for which the plaintiff was entitled to a remedy by mandamus; and the only question was, whether the mandamus could constitutionally issue from the Supreme Court. (a)

The Judiciary Act, sec. 13, authorized the Supreme Court to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States. There was no doubt that the Act applied to the case, and gave the power, if the law was constitutional; but the court was of opinion that the Act, in this respect, was not warranted by the constitution, because the issuing of a mandamus in this case would be an exercise of original jurisdiction not within the constitution, and Congress had not power to give original jurisdiction to the Supreme Court in other cases than those described in the constitution. It had not authority to give to the Supreme Court appellate jurisdiction, where the constitution had declared that its jurisdiction should be original, nor original jurisdiction where the constitution had declared it should be appellate. To enable

(a) In the case of Kendall v. The United States, 12 Peters, 524, it was decided, that the Circuit Court for the District of Columbia had authority to issue and enforce obedience to a mandamus, requiring the performance of a mere ministerial act by the Postmaster-General, and which neither he nor the President had any authority to deny or control; for the Postmaster-General is not subject to the direction and control of the President, with respect to the execution of duties imposed upon him by law. The President has no dispensing power over the law, nor will a mandamus lie to correct the erroneous judgment of an inferior court. It is not the process to review judicial errors of any kind. Ex parte Hoyt, 13 Peters, 279. Ex parte Whitney, Ib. 404. This is a settled principle in English and American law. The King v. Justices of Monmouthshire, 7 Dowl. & Ryl. 334. Judges of Oneida v. The People, 18 Wendell, 79. The People v. Judges of Dutchess C. P. 20 Ib. 658.

'A mandamus against the Secretary of the Navy will not lie, at the instance of an officer, to enforce the payment of his salary. The duties of the Secretary in making such payments are not merely ministerial, but are official and to some extent discretionary, and the judicial department has no power to interfere with their discharge. Brashear v. Mason, 6 How. R. 92. See, also, Reeside v. Walker, 11 How. U. S. 272. United States v. Guthrie, 17 How. U. S. 284.