COMMENTARIES.

BOOK I.

THE JUDICIAL POWER OF THE UNITED STATES.

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CHAPTER I.

CASES ARISING UNDER THE CONSTITUTION, LAWS, AND

TREATIES.

§ 1. THE third Article of the Constitution of the United States, and the seventh and eleventh of the Amendments, contain the provisions by which the Judicial Power of the Union is defined. They declare as follows:

SEC. 1. "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office."

SEC. 2. "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. 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. The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed." "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of 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."2 "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."3

§ 2. The Judicial Power of the United States is the principal means by which the Constitution is made adequate to its own purposes. The people of the United States, "in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity," conferred certain powers upon the general government, and imposed certain restrictions and limitations upon the powers of the states.

1 Art. 3.

27th Amendment.

3 11th Amendment.

That these powers and these restrictions might retain their just supremacy over the constitutions and laws of the states, the Constitution of the United States was made the supreme law of the land. This supremacy might have been left to be enforced by arms; but in order to avoid this recourse, the structure and functions of the judicial power were devised and incorporated into the Constitution.

§ 3. The extent of the judicial power, its nature and objects, can be appreciated only after an enumeration and survey of the various topics comprehended by the clauses of the Constitution by which it is established. A cursory reading of those clauses informs us that there are three principal classes of subjects embraced by them. Into one of these classes fall all judicial controversies, in which the subject-matter bears a certain character; in the second are included all judicial controversies in which the parties, one or both, sustain a certain character or relation, without reference to the subject-matter on which the controversy arises. In the third, which is a mixed class of cases, jurisdiction seems to have reference both to the nature of the controversy and the character of the parties.

In the first of these classes are comprehended all cases in law and equity arising under the Constitution, the laws, or the treaties of the United States, and all cases of admiralty and maritime jurisdiction. These are obviously embraced within the judicial power of the United States, without reference to the character of the parties. On the other hand, controversies to which the United States may be a party, controversies between two or more states, [between a state and citizens of another state,] between citizens of different states, and between a state or the citizens thereof and foreign states, [citizens or subjects,] are comprehended within the second class, without reference to the nature or character of the controversy itself. In the third class fall the cases between citizens of the same state claiming lands under grants of different states, and the

cases affecting ambassadors, other public ministers, and consuls.

§ 4. The Constitution, however, strictly considered, establishes five different classes of cases, as the objects of the judicial power; for although the judicial power is susceptible of division into two general branches, one depending on the character of the cause, and the other on the character of the parties, yet the former comprehends three different descriptions of cases. Cases of admiralty and maritime jurisdiction are not cases arising technically under the Constitution and laws of the United States. They are a distinct class of controversies, which existed before the Constitution, arising under a system of law of great antiquity, which is to be applied to them by the courts as they occur; and the jurisdiction in these cases is conferred by a grant separate and distinct from the other objects of the jurisdiction embraced within the same clause. So, too, the controversies between citizens of the same state claiming lands under grants of different states, are a special class of cases, of a distinct character, which, for reasons of high policy, were included within the judicial power.

§ 5. The Judicial Power of the United States, therefore, extends to

I. Cases in law and equity arising under the Constitution, Laws, and Treaties of the United States.

II. Cases affecting ambassadors, other public ministers, and consuls.

III. Cases of admiralty and maritime jurisdiction.

IV. Cases between citizens of the same state claiming lands under grants of different states.

V. Cases where the parties bear a certain character.

§ 6. It will be my design, in this volume, first, to develop these different classes of cases, in the order in which they

'The American Insurance Company v. Canter, 1 Peters, 511, 545.