How Cases in Law and This is very true, so far as the jurisdiction depends on the character of the parties; and the argument would have great force if urged to prove that this Court could not establish the demand of a citizen upon his State, but is not entitled to the same force when urged to prove that this Court cannot inquire whether the constitution or laws of the United States protect a citizen from a prosecution instituted against him by a State. If jurisdiction depended entirely on the character of the parties, and was not given where the parties have not an original right to come into Court, that part of the 2d section of the 3d article, which extends the judicial power to all cases arising under the constitution and laws of the United States, would be mere surplusage. It is to give jurisdiction where the character of the parties would not give it, that this very important part of the clause was inserted. . . If the constitution or laws may be violated by proceedings instituted by a State against its own citizens, and if that violation may be such as essentially to affect the constitution and the laws, such as to arrest the progress of government in its constitutional course, why should these cases be excepted from that provision which expressly extends the judicial power of the Union to all cases arising under the constitution and laws? 1 To this question, thus put, no satisfactory answer has as yet been made. In some respects the case of Osborn v. Bank of the United States (9 Wheaton, 737), decided in 1824, is to be considered as an appeal from the decision of the Supreme Court in the case of McCulloch v. Maryland (4 Wheaton, 316), decided five years earlier, holding that a State law taxing a branch of the bank of the United States in that State is a tax upon an agency of the United States and is unconstitutional, null and void. The decision in the McCulloch case was re-examined and affirmed. In addition, the court held that a suit against officers of a State, enjoining them from proceeding against the bank, was not a suit against the State in the sense of the 11th Amendment, unless the State itself were a party to the record. While, however, the Osborn case is an authority for these views, for present purposes it is cited to show when and how a case arises in law and equity under the Constitution, treaties and laws of the United States. Counsel for the defendants had insisted that it was not such a case; counsel for the plaintiff that it was; and, meeting the issue as presented, the court examined the question and rejected the defendant's thesis. Speaking for the court, Mr. Chief Justice Marshall said: The appellants contend, that it does not, because several questions may arise in it, which depend on the general principles of the law, not on any act of Congress. If this were sufficient to withdraw a case from the jurisdiction of the federal Courts, almost every case, although involving the construction of a law, would be withdrawn; and a clause in the constitution, relating to a subject of vital importance to the government, and expressed in the most comprehensive terms, would be construed to mean almost nothing." 6 Wheaton, 390-2. 29 Wheaton, 819-20. The Chief Justice thereupon asks if jurisdiction is excluded because the case involves questions depending on general principles, and holds that it is not, saying and declaring the law on this point: A cause may depend on several questions of fact and law. Some of these may depend on the construction of a law of the United States; others on principles unconnected with that law. If it be a sufficient foundation for jurisdiction, that the title or right set up by the party, may be defeated. by one construction of the constitution or law of the United States, and sustained by the opposite construction, provided the facts necessary to support the action be made out, then all the other questions must be decided as incidental to this, which gives that jurisdiction. Those other questions cannot arrest the proceedings. Under this construction, the judicial power of the Union extends effectively and beneficially to that most important class of cases, which depend on the character of the cause. On the opposite construction, the judicial power never can be extended to a whole case, as expressed by the constitution, but to those parts of cases only which present the particular question involving the construction of the constitution or the law. We say it never can be extended to the whole case, because, if the circumstance that other points are involved in it, shall disable Congress from authorizing the Courts of the Union to take jurisdiction of the original cause, it equally disables Congress from authorizing those Courts to take jurisdiction of the whole cause, on an appeal, and thus will be restricted to a single question in that cause; and words obviously intended to secure to those who claim rights under the constitution, laws, or treaties of the United States, a trial in the federal Courts, will be restricted to the insecure remedy of an appeal upon an insulated point, after it has received that shape which may be given to it by another tribunal, into which he is forced against his will. We think, then, that when a question to which the judicial power of the Union is extended by the constitution, forms an ingredient of the original cause, it is in the power of Congress to give the Circuit Courts jurisdiction. of that cause, although other questions of fact or of law may be involved in it.1 It requires no comment to show the necessity of such a decision, as otherwise the purpose of the Constitution would be frustrated, in that cases in law and equity arising under the Constitution, treaties or laws of the United States would not be examined by the Supreme Court, either originally or upon appeal, and the Government of the States would be unable to defend itself in many cases against the acts of the States. Such a construction would not extend the judicial power of the United States but would withdraw such power from cases in law and equity arising under the Constitution, laws and treaties of the United States. The question frequently arises whether the judicial power of the United States is concurrent with that of the States; or whether it is, in its nature, exclusive. Advocates of a highly centralized government insist that the Is Judicial or Exclusive? judicial power of the United States is exclusive wherever it attaches, whereas advocates of the States insist that the States retained the right to the exercise of judicial power in all cases where it has not been renounced, or where the Government of the Union, in pursuance of the Constitution, has not invested the judicial power exclusively in the courts of the Union. The framers of the Constitution, its classic expounders, the Congress and the Supreme Court, seem to belong to the latter class. As far as the framers of the Constitution and the Congress are concerned, it is only necessary to point to Section 9 of the judiciary act of September 24, 1789, which recognizes concurrent jurisdiction by declaring, among other things, that the district courts of the United States "shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." 1 Members of the committee framing this act had been members of the Federal Convention. The hand that drew it was Oliver Ellsworth, member of the Federal Convention, member of the State Convention of Connecticut for the ratification of the Constitution, first United States Senator from his State under the Constitution, and soon to be Chief Justice of the Supreme Court of the United States. Alexander Hamilton was no friend. of the States. He wished to blot them out of existence. In the plan of the Constitution which he proposed to the Federal Convention they would have been little more than provinces, with governors appointed for life or during good behavior with a veto upon the laws of the State, and appointed by a President holding office for life or during good behavior. Yet he admitted freely, in The Federalist, that the States under the Constitution were to be considered as sovereign bodies, possessing the powers which they did not expressly or impliedly grant to the Government of the Union, or which they did not themselves renounce. In the 82d number of The Federalist he speaks of the Government as composed of distinct sovereignties, and, discussing the relation of the State to the Federal judiciary, he asks: "Is this to be exclusive or are those courts to possess a concurrent jurisdiction? If the latter, in what relation will they stand to the national tribunals?" These inquiries, which, he says, "we meet with in the mouths of men of sense," he thus answers: The principles established in a former paper teach us, that the states will retain all pre-existing authorities, which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the union; or where a particular authority is granted to the 11 Statutes at Large, 77. union, and the exercise of a like authority is prohibited to the states; or, where an authority is granted to the union, with which a similar authority in the states would be utterly incompatible. Though these principles may not apply with the same force to the judiciary, as to the legislative power; yet I am inclined to think, that they are in the main, just with respect to the former, as well as the latter. And under this impression I shall lay it down as a rule, that the state courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes.1 These are also the views of the Supreme Court, and indeed, in the case of Clafflin v. Houseman (93 U. S., 130), decided in 1876, Mr. Justice Bradley, speaking for a unanimous court, refers to this very number of The Federalist and appears to approve not merely the view which has been quoted, but Hamilton's entire conception and statement of the concurrent powers of the Federal and of the State courts. And the approval of the Supreme Court is not indirect, but express and direct, in that it thus quotes and approves the Hamiltonian conception: It was fully examined in the eighty-second number of "The Federalist," by Alexander Hamilton, with his usual analytical power and far-seeing genius; and hardly an argument or a suggestion has been made since which he did not anticipate. After showing that exclusive delegation of authority to the Federal government can arise only in one of three ways,—either by express grant of exclusive authority over a particular subject; or by a simple grant of authority, with a subsequent prohibition thereof to the States; or, lastly, where an authority granted to the Union would be utterly incompatible with a similar authority in the States, he says, that these principles may also apply to the judiciary as well as the legislative power. Hence, he infers that the State courts will retain the jurisdiction they then had, unless taken away in one of the enumerated modes. But, as their previous jurisdiction could not by possibility extend to cases which might grow out of and be peculiar to the new constitution, he considered that, as to such cases, Congress might give the Federal courts sole jurisdiction. "I hold," says he, "that the State courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and I am even of opinion, that in every case in which they were not expressly excluded by the future acts of the national legislature, they will, of course, take cognizance of the causes to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and, in civil cases, lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. . . When, in addition to this, we consider the State governments and the national government, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive, that the State courts would have concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited." 2 'The Federalist, 1802 ed., Vol. II, pp. 243–4. 293 U. S. 138. After referring to the passage of the judiciary act, which has been quoted, and to the exact language of the Constitution, Mr. Justice Bradley next invokes the authority of the great Chief Justice himself. Thus : In Cohens v. Virginia, 6 Wheat. 415, Chief Justice Marshall demonstrates the necessity of an appellate power in the Federal judiciary to revise the decisions of State courts in cases arising under the Constitution and laws of the United States, in order that the constitutional grant of judicial power, extending it to all such cases, may have full effect. He says, “The propriety of intrusting the construction of the Constitution and laws, made in pursuance thereof, to the judiciary of the Union, has not, we believe, as yet, been drawn in question. It seems to be a corollary from this political axiom, that the Federal courts should either possess exclusive jurisdiction in such cases, or a power to revise the judgment rendered in them by the State tribunals. If the Federal and State courts have concurrent jurisdiction in all cases arising under the Constitution, laws, and treaties of the United States, and if a case of this description brought in a State court cannot be removed before judgment, nor revised after judgment, then the construction of the Constitution, laws, and treaties of the United States is not confided particularly to their judicial department, but is confided equally to that department and to the State courts, however they may be constituted.1 The Clafflin case was one to test the nature and extent of concurrent jurisdiction on the part of the State and Federal courts, inasmuch as it involved a question of bankruptcy, which, under the bankruptcy law of the United States, passed by Congress pursuant to Article I, Section 8, of the Constitution, invests Congress with the power "to establish . . . uniform Laws on the subject of Bankruptcies throughout the United States." Speaking for the court, Mr. Justice Bradley said and concluded: We hold that the assignee in bankruptcy, under the Bankrupt Act of 1867, as it stood before the revision, had authority to bring a suit in the State courts, wherever those courts were invested with appropriate jurisdiction, suited to the nature of the case.2 The last case to be considered in this connection is that of Ames v. Kansas (111 U. S., 449), decided in 1884, in which the court had occasion to consider the original and appellate jurisdiction of the United States, and to establish the principle that, even in those cases in which the Supreme Court has original jurisdiction by the Constitution, the term "original" is not necessarily exclusive. After referring to the judicial clause of the Constitution, to the judiciary act of 1789, passed within six months after the inauguration of the Government under the Constitution, vesting suits against Ambassadors in the 193 U. S., 142. 'Ibid., 143. |