§ 370. It is manifest, that the Constitution has proceeded upon a theory of its own, and given and withheld powers according to the judgement of the American people, by whom it was adopted. We can only construe its powers, and cannot here inquire into the policy, or principles, which induced the grant of them. The Constitution has presumed, (whether rightly or wrongly, we do not here inquire,) that State attachments, State prejudices, State jealousies, and State interests, might sometimes obstruct, or control, or be supposed to obstruct, or control, the regular administration of justice. Hence, in controversies between States; between citizens of different States; be tween citizens, claiming grants under different States; between a State and its citizens, or foreigners; and between citizens and foreigners; it enables the parties, under the authority of Congress, to have the controversies heard, tried, and determined, before the National tribunals. No other reason, than that, which has been stated, can be assigned, why some, at least, of these cases should not have been left to the cognizance of the State courts. respect to the other enumerated cases,-cases arising under the Constitution, laws, and treaties, of the United States; cases affecting ambassadors, and other public ministers; and cases of admiralty and maritime jurisdiction, reasons of a higher and more extensive nature, touching the safety, peace, and sovereignty, of the Nation, might well justify a grant of exclusive jurisdiction.

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§ 371. This is not all. A motive of another kind, perfectly compatible with the most sincere respect for State tribunals, might induce the grant of appellate power over their decisions. That motive is the importance, and even necessity, of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the Constitution. Judges of equal learning and integrity, in different States, might differently interpret a statute, or a treaty, of the United States, or even the Constitution itself. If there were no revising authority to control these jarring and discordant judgements, and harmonize them into uniformity, the laws, the treaties, and the Constitution, of the United States, would be different

in different States; and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two States. The public mischiefs, which would attend such a state of things, would be truly deplorable; and it cannot be believed, that they could have escaped the enlightened Convention, which formed the Constitution. What, indeed, might then have been only proph ecy, has now become fact; and the appellate jurisdiction must continue to be the only adequate remedy for such evils.

§ 372. There is an additional consideration, which is entitled to great weight. The Constitution of the United States was designed for the common and equal benefit of all the people of the United States: The judicial power was granted for the same benign and salutary purpose. It was not to be exercised exclusively for the benefit of parties, who might be plaintiffs, and would elect the National forum; but also for the protection of defendants, who might be entitled to try their rights, or assert their privileges, before the same forum. Yet, if the appellate jurisdiction does not extend to such cases, it will follow, that, as the plaintiff may always elect the State courts, the defendant may be deprived of all the security, which the Constitution intended in aid of his rights. Such a state of things can, in no respect, be considered as giving equal rights.

§ 373. Strong as this conclusion stands upon the general language of the Constitution, it may still derive support from other sources. It is an historical fact, that this exposition of the Constitution, extending its appellate power to State courts, was, previous to its adoption, uniformly and publicly avowed by its friends, and admitted by its enemies, as the basis of their respective reasonings, both in and out of the State conventions. It is an historical fact, that, at the time, when the Judiciary Act was submitted to the deliberations of the first Congress, composed, as it was, not only of men of great learning and ability, but of men, who had acted a principal part in framing, supportng, or opposing, that Constitution, the same exposition was explicitly declared, and admitted by the friends, and

by the opponents of that system. It is an historical fact, that the Supreme Court of the United States have, from time to time, sustained this appellate jurisdiction, in a great variety of cases, brought from the tribunals of many of the most important States in the Union; and that no State tribunal ever breathed a judicial doubt on the subject, or declined to obey the mandate of the Supreme Court, until a comparatively recent period. This weight of contemporaneous exposition, by all parties, this acquiescence of enlightened State courts, and these judicial decisions of the Supreme Court, through so long a period, places the doctrine upon a foundation of authority, which cannot be shaken, without delivering over the subject to perpetual, and irremediable doubts.

§ 374. 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 of admiralty and maritime jurisdiction, (which are exclusive in their character;) n 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.

§ 375. 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 judgement in a court of the United States; the latter having an exclusive authority over its own judgements and proceedings. Nor can any State court, or any State legislature, annul the judgements of the courts of the United States, or destroy the rights ac quired under them; nor in any manner deprive the Su preme 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 affect a 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.

§ 376. 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 judgements in the State courts; or in any other manner to interfere with their jurisdiction or proceedings.

§ 377. Having disposed of these points, we may again recur to the language of the Constitution, for the purpose of some further 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."

§ 378. 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 judgement 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; but it must 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 of mandamus, a writ of error, or an appeal, may be used, as the Legislature may prescribe.

§ 379. 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 re-examination, 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.

§ 380. It is observable, that the language of the Con stitution 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 sup