in the name of the deceased marshal, until another marshal shall be appointed and sworn. So, a marshal, when removed from office, or his term of office expires, may still execute all process in his hands, and he remains responsible for his prisoners until they are duly delivered over to his successor. (a)1 And with respect to the custody of the prisoners, under the law of the United States, the marshal is directed to deliver his prisoners to the keeper of one of the jails of the state in which he is marshal, in cases where the legislature of the state, in conformity with the recommendation of congress, have made it the duty of the jailers to receive them; but where they have not, the marshal, under the direction of the district judge, is to provide his own place of security. (b)

(a) Ibid. sec. 28.

(b) Resolutions of Congress, September 23d, 1789, and March 3d, 1791. See, also, the act of congress of January 6th, 1800, and 1 Paine's Rep. 368. The marshal is bound to take from the prisoner under United States process, a bond for the limits, as in the case for prisoners under state process.

'Stewart v. Hamilton, 4 McLean, 534. United States v. Bank of Arkansas, Hempst. C. C. 460. Doolittle's Lessee v. Bryan, 14 How. U. S. 563.

LECTURE XV.

OF THE ORIGINAL AND APPELLATE JURISDICTION OF THE SUPREME

COURT.

HAVING taken a general view of the great departments of the government of the United States, I proceed to a more precise examination of its powers and duties, and of the degree of subordination under which the state governments are constitutionally placed.

Test of con

The constitution of the United States is an instrustitutional ment containing the grant of specific powers, and the power. government of the Union cannot claim any powers but what are contained in the grant, and given either expressly, or by necessary implication. The powers vested in the state governments by their respective constitutions, or remaining with the people of the several states prior to the establishment of the constitution of the United States, continue unaltered and unimpaired, except so far as they are granted to the United States. We are to ascertain the true construction of the constitution, and the precise extent of the residuary authorities of the several states, by the declared sense and practice of the governments respectively, when there is no collision; and in all other cases where the question is of a judicial nature, we are to ascertain it by the decisions of the Supreme Court of the United States; and those decisions ought to be studied and universally understood, in respect to all the leading questions of constitutional law. (a) The people of the United States have declared the constitution to be the supreme law of the land, and it is entitled to universal and implicit obedience. Every act of congress, and every act of the legislatures of the

states, and every

(a) See supra, p. 243.

part of the constitution of any state, which are repugnant to the constitution of the United States, are neces

*

314

sarily void. This is a clear and settled principle of constitutional jurisprudence. The judicial power of the Union is declared to extend to all cases in law and equity arising under the constitution; and to the judicial power it belongs, whenever a case is judicially before it, to determine what is the law of the land. The determination of the Supreme Court of the United States, in every such case, must be final and conclusive, because the constitution gives to that tribunal the power to decide, and gives no appeal from the decision.

With respect to the judicial power, it may be generally observed, as the Supreme Court declared, in the case of Turner v. The Bank of North America, (a) that the disposal of the judicial power, except in a few specified cases, belongs to congress; and the courts cannot exercise jurisdiction in every case to which the judicial power extends, without the intervention of congress, who are not bound to enlarge the jurisdiction of the federal courts to every subject which the constitution might warrant. So, again, it has been decided, (b) that congress has not delegated the exercise of judicial power to the circuit courts, but in certain specific cases. Both the constitution and an act of congress must concur in conferring power upon the circuit courts. A considerable portion of the judicial power, placed at the disposal of congress by the constitution, has been intentionally permitted to lie dormant, by not being called into action by law. (c) The 11th section of the judiciary act of 1789, giving jurisdiction to the circuit courts, has not covered the whole ground of the constitution, and those courts cannot, for instance, issue a mandamus, but in those cases in which it may be necessary to the exercise of their jurisdiction. (d)

The original jurisdiction of the Supreme Court is Original very limited, and it has been decided that congress has of the Sujurisdiction no power to extend it. (e) It is confined by the con- preme

(a) 4 Dallas, 8.

Court.

(b) M'Intire v. Wood, 7 Cranch, 504. Livingston v. Van Ingen, 1 Paine, 45. United States v. Hudson & Goodwin, 7 Cranch, 32. United States v. Bevans, 3 Wheaton, 336.

(c) Conkling's Treatise, 2d edit. 68.

(d) Smith v. Jackson, 1 Paine's Rep. 453.

(e) Marbury v. Madison, 1 Cranch, 137.

stitution to those cases which affect ambassadors, other public ministers and consuls, and to those in which a *315 state is a party; (a) and, it has been made a question, whether this original jurisdiction of the Supreme Court was intended by the constitution to be exclusive. The judiciary act of 1789 seems to have considered it to be competent for congress to vest concurrent jurisdiction, in those specified cases, in other courts; for it gave a concurrent jurisdiction, in some of those cases, to the circuit courts. (b) In the case of the United States v. Ravara, (c) this point arose in the Circuit Court for Pennsylvania district, and it was held that congress could vest a concurrent jurisdiction in other courts, of those very cases over which the Supreme Court had original jurisdiction; and that the word original was not to be taken to imply exclusive cognizance of the cases enumerated. But the opinion of the Supreme Court of the United States, in Marbury v. Madison, (d) goes far towards establishing the principle of exclusive jurisdiction in the Supreme Court in all those cases of original jurisdiction. This last case was considered, in Pennsylvania v. Kosloff, (e) as shaking the decision in the case of Ravara; and yet the question was still left in doubt by the Supreme Court, in the case of the United States v. Ortega, (f) and a decision upon it was purposely waived. (g)

Admitting this original jurisdiction of the Supreme Court may be shared by other courts in the discretion of congress, it has been decided, as we shall presently see, that this original jurisdiction cannot be enlarged, and that the Supreme Court cannot be vested, even by congress, with any original jurisdiction in other cases than those described in the constitution. It is the appellate jurisdiction of the Supreme Court that clothes

(a) Art. 3, sec. 2.

(b) Act of congress, September 24th, 1789, sec. 13.

(c) 2 Dallas, 297.

(d) 1 Cranch, 137.

(e) 5 Serg. & Rawle, 545.

(f) 11 Wheaton, 467.

(g) In the official opinion of the attorney-general of the United States, in 1797, it was held, that the Supreme Court of the United States had no criminal jurisdiction, until given by statute, and that it was capable of having it conferred by law in the case of ambassadors, &c., as in the case of libels, &c. Opinions of the Attorneys-General, (July 27th, 1797,) vol. i. p. 42.

it with most of its dignity and efficacy, and renders it a constant object of attention and solicitude on the * part of *316 the governments and the people of the several states. (a)

(1.) The Supreme Court has appellate jurisdiction, Appellate in certain cases, over final decisions in the state courts, jurisdiction. but it has no power to review its own decisions, either at law or in equity.(b)

We have seen (c) that, by the act of congress of the 24th of September, 1789, sec. 25, a final judgment or decree in any suit in the highest court of law or equity of a state, where is drawn in question the validity of a treaty, and the decision is against its validity; or where is drawn in question the construction of a treaty, and the decision is against the title, right, or privilege set up or claimed under it, may be reëxamined, and reversed or affirmed in the Supreme Court of the United States, upon a writ of error; and, upon reversal, the cause may be remanded for final decision, or the Supreme Court may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. The word final, in the judiciary act, is understood to apply to all judgments and decrees which determine the particular cause; and it is not to be confined to those judgments and decrees which are so final as to terminate all further or renewed litigation, in a new suit on the same right.(d)1 Under this appellate authority, it was declared, in the case of Clerke v. Harwood, (e) that if the highest court in a state reverse the judgment of a subordinate

(a) The Imperial Chamber and the Aulic Council in the Germanic constitution, were tribunals of appellate jurisdiction only. It was the original law of Germany, that no man could be sued, except in the state or province to which he belonged. 1 Hallam on the Middle Ages, 371, 372.

(b) Washington Bridge Company v. Stewart, 3 Howard, U. S. 413. (c) Supra, p. 299.

(d) Weston v. City Council of Charleston, 2 Peters's U. S. Rep. 449. See Judge Conkling's Treatise on the Courts of the United States, 2d edit. p. 23, for a citation of the cases on this point. This treatise of the learned judge is copious, accurate, and a very useful digest for the profession. The details of the practice of the courts of the United States, supported by a full review of the statutes, judicial decisions, and rules of the courts, are excellent.

(e) 3 Dallas, 343.

1 See Forgay v. Conrad, 6 How. U. S. 201. Pulliam v. Christian, Id. 209.