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in the form prescribed by law. It then becomes 'a case,' and the Constitution declares that the judicial power shall extend to all cases arising under the Constitution, laws, and treaties of the United States."

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"The suit of the Bank of the United States v. Osborne and others, is a case,' and the question is, whether it arises under a law of the United States?

"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from the jurisdiction of the federal courts, almost every case, although involving the construction of a law, would be withdrawn; and a clause in the Constitution relating to a subject of vital importance to the government, and expressed in the most comprehensive terms, would be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. There is scarcely any case, every part of which depends on the Constitution, laws, or treaties of the United States. The questions whether the fact alleged as the foundation of the action be real or fictitious; whether the conduct of the plaintiff has been such as to entitle him to maintain his action; whether his right is barred; whether he has received satisfaction, or has in any manner released his claims-are questions, some or all of which may occur in almost every case; and if their existence be sufficient to arrest the jurisdiction of the court, words which seem intended to be as extensive as the Constitution, laws, and treaties of the Union-which seem designed to give the courts of the government, the construction of all its acts, so far as they affect the rights of individuals, would be reduced to almost nothing.

"In those cases in which original jurisdiction is given to the Supreme Court, the judicial power of the United States cannot be exercised in its appellate form. In every other case, the power is to be exercised in its original or appellate form, or both, as the wisdom of congress may direct. With the excep

tion of those cases, in which original jurisdiction is given to this court, there is none to which the judicial power extends, from which the original jurisdiction of the inferior courts is excluded by the Constitution. Original jurisdiction, so far as the Constitution gives a rule, is co-extensive with the judicial power. We find in the Constitution, no prohibition to its exercise, in every case in which the judicial power can be exercised. It would be a very bold construction to say that this power could be applied in its appellate form only, to the most important class of cases to which it is applicable.

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"The Constitution establishes the Supreme Court, and defines its jurisdiction. It enumerates cases in which its jurisdiction is original and exclusive; and then defines that which is appellate, but does not insinuate that in any such case the power cannot be exercised in its original form by courts of original jurisdiction. It is not insinuated that the judicial power, in cases depending on the character of the cause, cannot be exercised in the first instance, in the courts of the Union, but must first be exercised in the tribunals of the state; tribunals over which the government of the Union has no adequate control, and which may be closed to any claim asserted under a law of the United States.

"We perceive, then, no ground on which the proposition can be maintained, that congress is incapable of giving the circuit courts original jurisdiction in any case to which the appellate jurisdiction extends.

"We ask, then, if it can be sufficient to exclude this jurisdiction, that the case involves questions depending on general principles? A cause may depend on several questions of fact and law. Some of them 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, words which in their plain sense apply to a whole cause, 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."*

* 9 Wheaton, 733. Osborne v. Bank of the United States.

From these two decisions we collect, among other matters, that the appellate jurisdiction does not depend on the court where the decision was given, but on the subject to which it relates; that it is not necessary that the subject should be purely and abstractedly of a single nature within the view of the Constitution, but may be connected with other matter, and the entire subject so formed, falls within the appellate jurisdiction; that this jurisdiction is essential to the well-being of the nation, and that the Supreme Court have not the power to decline its exercise. A tribunal so high, fully submitting to its constitutional obligations, when motives may easily be conceived of a personal nature, to tempt it to relax or evade their performance, affords an example for the imitation of all.*

* In these quotations the author has retained, without approving of, the expression federal, frequently applied to the courts of the United States. The government not being strictly a federal government, its tribunals are not properly federal tribunals. He refers to his antecedent remarks, to show how little of the pure federative quality, was intended to be retained in it, nor on the other hand, is it liable to the objection sometimes raised, that its warm advocates aim at rendering it a consolidated government, destructive of state sovereignty. The minority, who at first opposed its adoption, were, no doubt, sincere in the alarm they professed in this respect: but time has proved that it is utterly groundless, and the state sovereignties are, in all respects not voluntarily ceded to the United States, as vigorous as ever.

CHAPTER XXIX.

OF THE RULES OF DECISION.

THE rules and principles by which the judicial power is to be administered, form the next subject of consideration, and here we have, in the Constitution, the benefit of a text which in some respects is explicit, and in all others, supplies a foundation on which it is apprehended we may securely rest.

The laws of the United States and treaties made under their authority, form the explicit principle of the judiciary power, and in respect to their high obligation no question can arise: but another part of the same sentence leads us into a wider field of inquiry.

The Constitution itself is the supreme law of the land, and all cases arising under it are declared to be within the judicial power. To every part of this well-digested work we are bound to give an efficient construction. No words are there used in vain: as a literary composition, the union of precision with brevity constitutes one of its chief ornaments and recommendations. When we find a distinction between cases arising under the Constitution and under laws and treaties, we are not at liberty to suppose that the former description was introduced without a definite meaning. The other designations are not more plain than this. We understand what is meant by cases arising under laws and under treaties, but

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