"Judiciary Act" to act; any proceeding without the limits prescribed, is coram non judice, and its action a nullity. . . . And whether the want or excess of power is objected by a party, or is apparent to the Court, it must surcease its action, or proceed extra-judicially. Before we can proceed in this cause we must, therefore, inquire whether we can hear and determine the matters in controversy between the parties, who are two states of this Union, sovereign within their respective boundaries, save that portion of power which they have granted to the federal government, and foreign to each other for all but federal purposes.1 It will not have escaped attention that, after defining the original jurisdiction of the Supreme Court and limiting it to ambassadors, public ministers, consuls, and cases to which a State was a party, the Constitution declared 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." It is evident that the intervention of Congress was necessary, inasmuch as the appellate jurisdiction to be exercised by the courts was not to be defined by them but exercised according to a rule which the Congress should make. Until Congress had acted, the Supreme Court could exercise the original jurisdiction expressly conferred upon it by the Constitution, but could not sit as an appellate tribunal until inferior tribunals had been established, from whose judgments an appeal might be taken, or until the manner of appeal from State courts should have been determined. The first Congress accordingly proceeded to execute this power with which it was vested, pursuant to the authorization contained in Article I, Section 8, clause 18, "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The result of its labors, in so far as the courts are concerned, is embraced in the act to establish the judicial courts of the United States, approved September 24, 1789, providing, among other things, that the Supreme Court should consist of a Chief Justice and five Associate Justices; that the United States, for judicial purposes, should be divided into thirteen districts, with a district court in each, and three circuits for these districts; that the district and circuit courts should have original jurisdiction in some cases and concurrent jurisdiction in others with the courts of the States; that the Supreme Court should exercise the original jurisdiction in the cases mentioned in the Constitution. also defined and regulated appeals from the Federal and State courts to the Supreme Court of the Union and of the States. This remarkable statute was drafted by a committee of the Senate consisting of eight members, of 1 12 Peters, 718-20. whom five, including its chairman, Oliver Ellsworth, later to be Chief Justice, had been members of the Federal Convention. Section 13 of the act, for which Mr. Ellsworth is deemed to have been chiefly responsible, provided : That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. . . . The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and 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.1 Passing over the method of appeal from the district to the circuit, and from the circuit courts to the Supreme Court, Section 25 of the act deals with appeals from the courts of the several States, enacting: That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But 11 Statutes at Large, 80–1. no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.1 Without dwelling at this time upon the provisions of these sections of the judiciary act, as it is called, it will be observed that, as far as the judicial power of the United States is concerned, a decision of a State court is not subject to reexamination in the Supreme Court of the United States unless the judgment or decree is contrary to the Constitution, treaty or law of the United States; but it should also be observed that this section enabled the State court to decide the question involved in favor of the Constitution, treaty or law of the United States, although a Federal court might be of a different opinion if the case were presented to it. To prevent this, and to enable the. Federal courts to pass upon a question involving the Constitution, treaties or laws of the United States, whether the decision of the State court was in favor or against the Constitution, treaty or law of the United States, it was enacted by the Congress, approved December 23, 1914, that: "It shall be competent for the Supreme Court to require, by certiorari or otherwise, any such case to be certified to the Supreme Court for its review and determination, with the same power and authority in the case as if it had been carried by an appeal or writ of error to the Supreme Court, although the decision in such case may have been in favor of the validity of the treaty or statute or authority exercised under the United States or may have been against the validity of the State statute or authority claimed to be repugnant to the Constitution, treaties, or laws of the United States, or in favor of the title, right, privilege, or immunity claimed under the Constitution, treaty, statute, commission, or authority of the United States." 2 As in the nature of judicial power, so in the matter of its extent, the decisions of the Supreme Court of the United States are the best, and in this instance the ultimate, authority to which to resort; and because of this, several leading decisions of this tribunal will be considered in turn and somewhat at length. In Martin v. Hunter (1 Wheaton, 304), decided in 1816, the Supreme Court had occasion to consider the nature and extent of the appellate power of the United States in its relation to the "final judgment or decree in any suit in the highest court of law or equity of a state." In this instance the Court of Appeals of Virginia, which, on a mandate from the Supreme The court is unanimously of opinion that the appellate power of the supreme court of the United States does not extend to this court under a sound construction of the constitution of the United States; that so much of the 25th section of the act of congress, to establish the judicial courts of the United States, as extends the appellate jurisdiction of the supreme court to this court, is not in pursuance of the constitution of the United States. That the writ of error in this cause was improvidently allowed under the authority of that act; that the proceedings thereon in the supreme court were coram non judice, in relation to this court, and that obedience to its mandate be declined by the court.1 Extent The question, therefore, presented by this case, was, stripped of technicalities, whether, under the Constitution, the Supreme Court could properly subject the decision of the highest State court to a re-examination and, in an appropriate case, reverse that judgment or decree. In other words, whether the Supreme Court of the United States or the court of final resort of one of the States was to interpret the Constitution of the United States; or, narrowing the issue, whether the nature and extent of the judicial power "Nature and of the United States were to be determined by the court of all the States Determined or by the court of any one of them. As was stated by Mr. Justice Baldwin, in the leading case of Rhode Island v. Massachusetts (12 Peters, 657, 722), decided in 1838, "the power of congress to make this provision for carrying into execution the judicial power taken in connection with the constitution, presents the great question in this cause, which is one of construction appropriate to judicial power, and exclusively of judicial cognizance, till the legislative power acts again upon it." In the case of Martin v. Hunter, under consideration, Mr. Justice Story, recently appointed to the bench, delivered the opinion of the court, which has stood the test of criticism and re-examination. After explaining the nature of the more perfect Union of the States and of the two sovereignties created by the Constitution, and having quoted and analyzed the section of the Constitution dealing with judicial power, he continues, saying: The next consideration is as to the courts in which the judicial power shall be vested. It is manifest that a supreme court must be established; but whether it be equally obligatory to establish inferior courts, is a question of some difficulty. If congress may lawfully omit to establish inferior courts, it might follow, that in some of the enumerated cases the judicial power could nowhere exist. The supreme court can have original jurisdiction in two classes of cases only, viz. in cases affecting ambassadors, other public ministers and consuls, and in cases in which a state is a party. Congress cannot vest any portion of the judicial power of the United 11 Wheaton, 305-6. States, except in courts ordained and established by itself; and if in any of the cases enumerated in the constitution, the state courts did not then possess jurisdiction, the appellate jurisdiction of the supreme court (admitting that it could act on state courts) could not reach those cases, and consequently, the injunction of the constitution, that the judicial power "shall be vested," would be disobeyed. It would seem, therefore, to follow, that congress are bound to create some inferior courts, in which to vest all that jurisdiction which, under the constitution, is exclusively vested in the United States, and of which the supreme court cannot take original cognisance. They might establish one or more inferior courts; they might parcel out the jurisdiction among such courts, from time to time, at their own pleasure. But the whole judicial power of the United States should be, at all times, vested either in an original or appellate form, in some courts created under its authority.1 After reenforcing the view which he had just expressed by an attentive examination of the second section of the third article, he thus states a further question, which naturally presented itself: It being, then, established that the language of this clause is imperative, the next question is as the cases to which it shall apply. The answer is found in the constitution itself. The judicial power shall extend to all the cases enumerated in the constitution. As the mode is not limited, 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.2 The learned justice next asks the question, "In what cases (if any) is this judicial power exclusive, or exclusive at the election of congress" and, in regard to the States, he says: At all events, whether the one construction or the other prevail, it is manifest that the judicial power of the United States is unavoidably, in some cases, exclusive of all state authority, and in all others, may be made so at the election of congress. No part of the criminal jurisdiction of the United States can, consistently with the constitution, be delegated to state tribunals. The admiralty and maritime jurisdiction is of the same exclusive cognisance; and it can only be 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, throughout the judicial act, and particularly in the 9th, 11th, and 13th sections, have legislated upon the supposition that in all the cases to which the judicial powers of the United States extended, they might rightfully vest exclusive jurisdiction in their own courts.3 After stating that the original jurisdiction of the Supreme Court is |