Piqua Branch of the State Bank v. Knoup (6 Ohio St. 342, 1856)

'Scott, J.

The original suit between these parties, upon its decision by this court, as reported in 1 Ohio St. 603, was taken to the Supreme Court of the United States by a writ of error, issued under the 25th section of the judiciary act of Congress, and the judgment of this court was by that tribunal reversed. 16 How. 369.

The questions arising in the case, and the opinion of this court upon them, were such as to bring it within the cognizance and jurisdiction of the Supreme Court of the United States, unless we assume the position that that tribunal has no jurisdiction to review .any decisions whatever of the *state courts, on questions re- [343 lating to the conflict of a state law with the constitution of the United States. The theory upon which such a position must rest, a majority of this court is not prepared to adopt. We do not mean to say that in a case of clear usurpation, by the Supreme Court of the United States, of an authority and jurisdiction wholly unwarranted by the federal constitution, it would not be competent for this court, as a court of last resort in a sovereign state, to decline obedience to a mandate issued in the exercise of such usurped jurisdiction. ' But no such case is before us. On the contrary, the jurisdiction here claimed has been constantly exercised by the Supreme Court of the United States ever since the organization of the general government, with the general acquiescence of the state courts. In conformity, then, with what has heretofore been the uniform practice in this state, we direct the mandate to be entered.

The provision of the constitution of the United. States, expressly conferring appellate jurisdiction on the Supreme Court, does not authorize the exercise of appellate power by that tribunal over the state courts, but extends simply to appeals from the subordinate federal courts.

There is no provision in the constitution from which a supervising power in the Supreme Court of the United States over the state courts can be derived, by way of incident or implication.

The Supreme Court of the United States has not been constituted the exclusive-tribunal of last resort, to determine all controversies in relation to conflicts of authority between the federal government and the several states of the-Union.

The state courts and the federal courts are co-ordinate tribunals, having concur-344] rent '''jurisdiction in numerous cases, but neither having a supervising power over the other; and where the jurisdiction is concurrent, the decision of that court, or rather of the courts of that judicial system, in which the jurisdiction first attaches, is final and conclusive as to the parties.

Under our system of government, a power not conferred by the constitution can . not be acquired by repeated acts’of usurpation.

Mere precedent or practice can not be relied upon as settling a fundamental principle, in respect to which no question was made or passed on.

Brinkerhorr and Bowen, JJ., concurred.

Swan, J., having formerly been of counsel in this case, did not participate in its decision.

Bartley, C. J., dissented. Syllabus of his dissenting opinion:

This case is before us on a motion to enter a special mandate from the Supreme Court of the United States, reciting a judgment of that court, purporting to reverse the judgment of this court, and commanding us to enter a judgment contrary to our own adjudication, and to carry the judgment of reversal into execution, under the authority of the judicial power of the United States. The Supreme Court of the United States claims to have acquired jurisdic- - tion over the case, by writ of error, under the 25th section of the judiciary act of Congress, of the 24th of September, 1789. The case originally came before us on a proceeding to enforce the collection of the taxes of the state, assessed on the property of the corporation, for the year 1851, pursuant to the statute “to tax banks, and bank and ■other stocks, the same as the property of other persons.” The bank, in this case, claimed to bo exempt from an equal assessment of taxes, by a provision in the bank law of this state, enacted in 1845, from which it derived its franchise, and which authorized a tax of six per cent, on the profits of the banks, which provision is claimed to be in the nature of a contract. This court, however, in giving a construction to this provision in the law of 1845, decided that it was not a contract, and that the bank was not thereby entitled to an exemption from liability to equal taxation, when required by the laws of the state. The Supreme Court of the United States, however, as it appears *from this man- [345 date, has given a different construction to this statute of Ohio of 1845, and declared it to be a contract, whereby the state had surrendered to the banks a part of the power of taxation, and that therefore the subsequent statute of the state, passed in 1851, imposing an equal burden of taxation on the banks, was unconstitutional and void, on the ground that it impaired the obligations of a contract, by repealing the tax provision in the bank law of 1845. •

The questions arising under this motion acquire incalculable importance from the vast consequences which they involve. Some fifty banks in the state, with an amount of taxable property exceeding twenty millions of dollars, claim an exemption from the power of taxation, under this decision of the Supreme Court of the United States. The tax law of 1851 is a mere state revenue law, in no way whatever affecting the operation of the federal government, and wholly unconnected with the affairs of the United States; and the bank law of 1845 is of the same character. If the judiciary of the state be not competent to interpret and enforce the constitution and laws of the state, especially in regard to mere matters of local state revenue, for the purpose of equalizing the public burdens ; if the Supremo Court of the United States can, by a writ of error, or appeal, take such a case from the judicial power of the state, and upon a mere question of giving a construction to the statuses of the state, not only reverse'the judgment of the Supreme Court of the state, but also use the judicial power of the state as its agency to enforce its mandate, the idea of such a thing as state sovereignty under our system of government would be a deceptive fallacy, and the states of the Union nothing more than mere municipal corporations, belonging to a consolidated national government.

*And this extraordinary claim to supremacy in the supreme [846 federal court has been carried a step further, and become even more alarming in its consequences, by the more recent decision, in the case of Dodge v. Woolsey, 18 How. 362, in which that tribunal has denied all remedy, or power of regeneration, even to the people of the state, acting in their original capacity, by the formation of a new constitution, to correct such abuses of legislation creating inequality and injustice in the burdens of taxation.

The general scope of this doctrine is forcibly portrayed in the very able dissenting opinion of Mr. Justice Campbell in the case just referred to in 18 Howard; and I take the liberty of referring to that opinion, and of inviting especial attention to it, as a most lucid exposition of the enormities and alarming import of the doctrine.

This doctrine of the Supreme Court of the United States not only wholly prostrates the municipal sovereignty of the people within the state, heretofore supposed to stand on the fundamental principle of our American institutions, but it also places the charters of corporations above the constitution of the state, and makes their special privileges and exemptions paramount to the original right of the people to form and remodel their own state government. The fatal tendency of this bold and dangerous assumption of power demands a foai'loss and searching inquiry into the claim of authority upon which it rests. And the magnitude of the subject, and portentous consequences threatened, will justify that research and detail in its examination which may provoke the charge of prolixity from those who prefer a more superficial investigation. Indeed, it would be futile to attempt to contend against the weight of authority on which this doctrine is claimed to stand, without giving the subject a full, thorough, and searching examination.

*1 proceed, then, to the inquiry: Does the constitution confer any power on the federal government by which the Supreme Court of the United States is authorized, in the exercise of its appellate jurisdiction, to review and reverse the judgment of a state court?

It can not be pretended that Congress can confer this pow;er by statute, without a delegation of authority in the constitution. Under our system of government, a lan' originating in an exercise of power not given by the constitution, is void. The United States is a government of expressly defined and limited powers, and all powers not delegated in the constitution are expressly reserved. It wouúl be to little purpose, indeed, that the people should expressly definó- and limit the powers of their government by a written constitution, if the limits prescribed could be passed by those intended to be restrained, and laws enacted without authority derived from the constitution. “This doctrine,” in the language of Chief Justice Marshall, in the case of Marbury v. Madison, 1 Cranch, 137, “ would •subvert tbe very foundation of all written constitutions. It would declare that an act which, aceordiug to the principles and theory of our government, is entirely void, is yet, in practice, completely •obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure; and thus reducing to nothing what we have deemed the greatest improvement on political institutions — 1 a written constitution.’ ” It is incontestible, therefore, that if this power be not conferred by the constitution, it can not be legitimately exercised.

We may here premise, that it is a settled rule of *interpre- [348 tation, founded on sound reason, that every written instrument conferring limited and expressly defined powers, must be strictly construed; and that, to warrant the exercise of special authority thus delegated, the grant of it must appear affirmatively and distinctively to be within the terms of the prescribed limits. If this rule bo important in any instance, it is so in its application to the written constitution of a government of limited and expressly, defined powers. If the exercise of doubtful authority, derived by vague and far-fetched construction and implication, be warranted or allowed, a written constitution will be Of but little consequence as a restraint upon ambition and cupidity. The rigid application of the strict rule of construction above mentioned, is also authoritatively required by the ninth and tenth additional amendatory articles of the constitution, declaring that all powers not expressly delegated are reserved, and that the enumeration of certain rights in the constitution shall not be construed to deny or disparage those retained. Without this express requirement of a strict construction, the constitution would not have been adopted by the states.

Bearing in mind, therefore, this rule of interpretation, we will proceed directly to an examination of the question under consideration.

The whole judicial power of the federal government is conferred by the third article of the constitution. The first section of this article prescribes the courts in which this judicial power is vested, in the words following:

“The judicial power of the United States shall he 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.”

The second clause of the second section of the article *distributes the jurisdiction under which this judicial power is to be exercised, as follows:

“ 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.”

These two provisions contained in the same article, and closely connected in their relation to the same subject-matter, must bo construed together. The whole jurisdiction conferred is vested in the Supreme Court of the United States, and the inferior courts established by Congress. None of the judicial power of the United States, therefore, can be exercised by any other courts, than the courts of the United States. No other courts but these are mentioned in this article; and clearly none other could have been in-contemplation. In a few specified cases only, is original jurisdiction given to the Supreme Court; as to all other cases, the jurisdiction of that court is appellate. An appeal is the removal of a suit from the determination of an inferior court, to the jurisdiction of a superior court, under the same judicial system. It is a continuation of the same suit under the judicial power of the same government, but under the jurisdiction of a higher court than that in which it has been once' decided. Appellate jurisdiction is the cognizance which a superior court takes of a case removed to it, by appeal or writ of error, from the decision of an inferior tribunal. The power of the appellate court necessarily includes the power not only to reverse the judgment, but also to control and direct the subsequent action of the subordinate court. Appellate jurisdiction, therefore, always implies the existence of subordinate court-, in the same judicial organization, over which the court, in which it is vested, exercises a supervising or correcting control. The appellate jurisdiction, which is here vested in the Supreme *Court of the [350 United States, is conferred in the same constitutional provision which authorizes the establishment of the inferior federal courts, as well as the Supreme Court; and of course has a direct reference-to appeals from the inferior federal courts,,being the subordinate-courts under the same judicial organization. No other courts, than-, the United States courts, are mentioned, or even alluded to, in this-article of the constitution; and none other, could have been contemplated. This constitutional provision is the fundamental law for the organization of a judicial system. It vests all the judicial power of the government in a Supremo Court and certain inferior courts belonging to this judicial organization. No other judicial system is mentioned. The constitution contains no provision creating any connection between this and any other judicial organization. "When, therefore, this constitutional provision distributes the-judicial power of this system, by vesting appellate jurisdiction in the Supreme Court, it would be a gross absurdity to say that this appellate jurisdiction could have reference to anything else than appeals from the inferior tribunals here mentioned as belonging to-the same system, and which are essential to make up the organization of the courts in which the whole judicial power of the United States is vested.

"Where a constitution organizing fundamentally a judicial system, divides it into one supreme and so many inferior courts as the legislative branch of the government may ordain and establish, then enumerates its powers, and proceeds so far to distribute them, as to. define the jurisdiction of the Supreme Court, and to confer upon it appellate jurisdiction, the plain import of the words is to confer-jurisdiction, or a supervising control by appeal or writ of error,, over the judgments of the subordinate tribunals here mentioned- and established in the same connection, as apart of *thesame [351 organization. If the appellate jurisdiction here conferred had reference to any other subordinate courts, than those mentioned in this provision of the constitution, language would certainly have-been used expressly including them. The judicial system of each state being different and distinct from that of the federal government, and ordained and established under a different constitution— originating from a different source, and distinct in its organization, is also clothed with independent judicial power, derived from the-■people of the state, and -wholly distinct from the judicial power of the United States. If the appellate jurisdiction, conferred on the .Supreme Court of the United States, had reference to the removal ■ of cases, by writ of error or appeal, from the state courts, as well .as the inferior federal courts, it is fair to infer, that the express mention of them would not have been omitted ; and the state courts, not having been mentioned as subject to this appellate power, are •excluded by a well-settled and universal rule of interpretation. Each of the states has always claimed to be sovereign and independent, and at the time of the formation of the constitution of the United States, each state was especially jealous of encroachments • on its state sovereignty by the powers delegated to the federal government. It is certainly, by no fair or reasonable mode of interpretation, that the language of the constitutional provision above recited, could make the courts of the state subject to the supervising •control, or the appellate power of the Supreme Court of the United States, without the mention of them, or language clearly and expressly including them.

But it has been argued, that the language of the constitution, ■conferring appellate jurisdiction on the Supreme Court of the United States, is not expressly limited by reference to any particu352] lar subordinate courts, but general, *and restrained only by “ such exceptions, and such regulations, as the Congress shall makeand that, therefore, the language of the constitution does not limit this appellate power to the inferior federal courts'. This .argument overlooks one of the plainest and most common rules of interpretation. The language of every instrument must be construed with reference to the connection in which it is used, and the ■ context and subject-matter to which it relates. The article of the constitution, in which this appellate jurisdiction is conferred, establishes a separate, distinct, and independent judicial system, vests the whole judicial power of the federal government in the federal • courts, provides for a Supreme Court and the inferior courts of the system, and in tjie distribution of the jurisdiction, confers appellate jurisdiction on the Supreme Court. "Was it necessary to say, in so many words, that the appellate jurisdiction, hero conferred, applied only to proceedings in the subordinate tribunals here mentioned and provided for — the tribunals belonging to the judicial ■ organization in this connection established — tribunals exercising judicial power here conferred, a part of which, and indeed a mere continuation of which, after the commencement of its original exercise, is the appellate jurisdiction under consideration ? It is clear,, that words specifically applying this appellate jurisdiction to the proceedings of these subordinate courts of the same organization, could not have made this constitutional provision plainer than it is. No other courts or judicial system is in any manner referred to, or-even recognized as having an existence. This grant of appellate jurisdiction, therefore, taken in the connection in which it stands, has as plain and clear an application to the supervising control over the subordinate federal courts alone, as express language could make. Such is the fair and reasonable import of the whole article; and any other construction would *not only violate a settled [358 rule of interpretation, but be at variance with reason and plain common sense.

The constitutional provisions, for the establishment of the several judicial systems for a number of "the states, furnish practical illustrations of the interpretation here given to the constitution of the United States. The first- section of the fourth article in the constitution of Ohio is as follows :

“ The judicial power of the state shall be vested in a Supreme-Court, in district courts, courts of common pleas, courts of probate, justices of the peace, and in such other courts inferior to the Supreme Court, in one or more counties, as the general assembly may from time to time establish.”

The second section of the same article continues:

“The Supreme Court shall consist of five judges, a majority of' whom shall be necessary to form a quorum, or to pronounce a decision. It shall have original jurisdiction in quo warranto, mandamus, habeas corpus, and procedendo, and such appellate jurisdiction as may be provided by law.”

Here a Supreme Court and certain subordinate courts are created, and in the distribution of the judicial power, appellate jurisdiction-is conferred on the Supreme Court in general terms, without expressly mentioning the subordinate courts over whose proceedings-it shall be exercised. The provision here is substantially the same with that in the constitution of the United States in regard to the appellate jurisdiction. But did any one ever doubt, as to the subordinate courts, to which the appellate jurisdiction here conferred. •was applicable?' Was it ever supposed that it could be extended beyond the subordinate courts mentioned in the same connection, and authorized under the same judicial system ? What would bo :Said of a legislative enactment in Ohio authorizing an appeal, or writ of error, from the subordinate federal courts sitting within the state to the Supreme Court of the state? Would the Supreme •354] .Court of the United States — a tribunal which has never *been wanting in a disposition, at least, to protect, to the utmost extent, the powers of the federal judiciary — acquiesce in such an interpretation of the constitution of Ohio ? It certainly would not. And yet the language of the constitution of the state, and the relation of the •state to the federal government, would justify such an interpretation, and sustain such appellate power in the state court upon the very same ground upon which this appellate power, claimed for the ‘Supreme Court of the United States, rests.

The judicial system of each state is entirely distinct from that • of the federal government, and the judicial power of the federal government being wholly distinct from the judicial power of each state, the former can not be blended with the latter. All the judicial power vested in the federal government must, from the very nature of the grant, be original, or capable of original cognizance, • of any case commenced under it. Without original, there can bo no appellate jurisdiction. The latter is a mere continuation of the . judicial power originally acquired, or taken, over the rights of the parties in a suit. The authority given to Congress to ordain and establish inferior courts, to any extent deemed proper, was evi.dently intended to enable the federal government to provide subor.dinate tribunals, in each of the states, competent to take original -cognizance of all matters of federal jurisdiction within its limits, so far as the same might become necessary. The state courts were not relied on as a means of exercising any of the judicial power • of the United States, and no portion of it was vested in them by the constitution of the United States. It has been settled by solemn adjudication that Congress can not, by law, impose jurisdic- ■ tion on the state courts, nor can the legislature of a state impose jurisdiction, on the United States courts. The exercise of appellate juiisdiction, therefore, by the Supreme Court of the United States :355] over the state *courts’is not only not provided for in the constitution, but incompatible with the theory of our government .and the distribution of power under it. Hence the express provision in the constitution that “ the judicial power of the United-Mates shall be vested in one Supreme Court, and in such inferior courts -as the Congress may ordain and establish ” — thus confining the judicial power of the federal government to the federal courts by express provision.

But it is insisted that the power of the Supreme Court of the United States, to control the judgments of the state courts, is acquired by virtue of the first clause, of the second section, of the third article of the constitution, which is in these words:

“ 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 embassadors,'other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction ; to controversies in 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.”

The effect of this provision is not to confer appellate jurisdiction, but to define the objects, and limit the extent of the judicial power of the United States. The judicial power mentioned is of course the judicial power of the United States as distinguished from that of the several states ; and it is extended only to the subjects specifically enumerated; so that the federal courts are courts of limited, and not courts of general jurisdiction. Their jurisdiction is to “ extend ” to all cases arising out of the several matters specifically enumerated. There is no expression used, to give the judicial power here conferred any exclusive character. The term “ extend” means to stretch, reach, or continue in *any particular direction [356 (Webster’s Ditionary). There is no meaning in the word “ extend,” which carries with it the exclusion of anything else, extending to the same matter. It is in the nature of the jurisdiction of courts of justice, that it never operates till it is invoked by the institution •of a suit or other proceeding in court. When, therefore, the judi ■ cial power is extended to any particular subject, it is simply empowered to take jurisdiction over it, whenever it is invoked by the commencement of a suit or other proceeding. Had the of the constitution been as follows: The courts of the 'United States shall have jurisdiction in all cases brought before them touching the several matters mentioned, instead of the language used, it is very clear that the same, and no different meaning, would have-been expressed. The state courts, are not mentioned nor referred to, nor do they appear to have been in contemplation, from any language used. The bare extension of the judicial power to all cases, or which is the same thing, to all suits or proceedings which may be instituted, invoking its action touching the enumerated subjects, does not give an exclusive character to the power granted, so as to exclude the concurrent jurisdiction of co-ordinate tribunals.

The object of a written constitution is to enumerate, and distinctly describe the power delegated by the people to the government, so that they may’not be left matters of doubt or conjecture. Had it been the intention of the constitution to exclude the concurrent jurisdiction of the state courts, in the cases to which the-judicial power of the United States is extended, language would certainly have been used clearly manifesting such intention. But as no such words are employed, and all powers not expressly conferred are reserved by the very terms of the constitution, it is-plain and certain that no such exclusive jurisdiction is given by the constitution to the federal courts.

*A redundancy of learning has been expended on the words “ all cases in law and equity, arising und%r the constitution, laws, and’ treaties of the United States," -to which the federal jurisdiction is-extended. There is no occasion for any strained interpretation, or search for far-fetched meaning to ascertain the plain import of the language used. What constitutes “ a case ” in law or equity, arising under the constitution, etc., is matter of legal' interpretation. A case in law or equity is a suit or proceeding in court, invoking-the exercise of judicial power, and consisting as well of the parties as of their rights. There is a manifest distinction between a question in law or equity, and a case in law or equity. Although every case in law or equity involves a question, yet many questions may arise seriously affecting the rights of persons, which do not constitute a case in law or equity. It appears that Chief Justice Marshall, when a member of Congress, in a debate in relation to the famous case of Jonathan Robbins, gave an exposition of the term, 11 a case in law,” as used in the constitution, in the following words:

“ By the constitution, the judicial power of the United States is extended to all cases in law and equity arising under the constitution, laws, and treaties of the United States ; but the resolutions declare the judicial power to extend to all questions arising under the constitution, laws, and treaties of the United States. .The difference betwoeu the constitution and the- resolutions was material and apparent. A case in law or equity was a term well understood, and, of limited signification. It was a controversy between parties that had taken a shape for judicial decision'. If the judicial power extended to every question under the constitution, it would involve almost every subject proper for legislative discussion and decision : if to every question under the laws and treaties of the United States, it would involve almost every subject upon which the executive could act. The division of power, which-the gentleman had said could exist no longer, and the other departments, would be swallowed up by the judiciary. By extending the judicial power to all cases in law and equity, the constitution had never been understood to confer upon that department any political power whatever. To come within this description, a question must assume a legal form for forensic ^litigation and judicial decision. There [358 must be parties to come into court who can be reached by its process and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound'to submit.” 5 Wheat., Appendix.

This interpretation is unquestionable. Gases in law and equity, within the meaning of the constitution, therefore, are suits or proceedings in court requiring the exercise of judicial power. And as this article of the constitution refers to, and has in view, no courts hut the federal tribunals, it is manifest that the language, “ the cases in law and equity arising under the constitution, laws, and treaties of the United States,” comprehends only suits or proceeding instituted in the federal courts, invoking the exercise of the judicial power of the United States. The constitution does not say, that the judicial power shall extend to all questions arising under the constitution, laws, and treaties of the United States. The idea that the judicial power of the United States extends to every question arising under,the constitution, laws, and treaties of the United States, is- not only an absurdity, but an impracticability.

The judicial power acts only when its operation is invoked; and its action is invoked only by a case or suit instituted under its jurisdiction. It is not possible, therefore, for the judicial power to take cognizance of any question, except where a suit or judicial proceeding has been instituted under its jurisdiction, calling it into operation. A case, therefore, within the meaning of the constitution, and to which the judicial power of the United States extends, must be, first, a suit or judicial proceeding instituted under the .authority of the federal constitution, invoking the action of the judicial power of the United States; and, second, it must involve ;a question, or relate to a subject-matter pertaining to the constitution, laws, or treaties of the United States, or involve one of the 359] other ^elements of federal jurisdiction, specified in the constitution. Such would be a case arising under the constitution of the United States; and to all such cases, and none others, is the judicial power of the United States extended.

There is, therefore, no foundation for the doctrine that the first clause of the second section of this article of the constitutionJ confers an exclusive jurisdiction on the federal courts over all questions arising under the constitution, laws, and treaties of the United States. And the very claim to appellate jurisdiction in the Supreme •Court of the United States over the state courts, in cases involving the specified subjects for adjudication, is an admission that the state •courts may take cognizance of, and determine such questions, and that the jurisdiction of the federal courts over them is not exclusive. So that it can not be claimed that the language of the constitution ¿attending the judicial power of the United States to all cases ai’ising under the constitution, laws, and treaties of the United States, is ■exclusive.

It is insisted, however, that the state courts, as to these questions, -.are courts of inferior jurisdiction to the federal tribunals, and that, therefore, appellate jurisdiction, as to them, from the state courts, may be given to the federal courts. But, as has already been shown, the appellate jurisdiction of the Supreme Court of .the United ..States is expressly defined by the second clause of this second section, and plainly limited to the supervision of the decisions of the inferior federal courts. And as there is no provision whatever in the constitution giving the federal courts appellate jurisdiction over •the state courts, it follows that, as to these cases, to which the judicial power of the United States is extended, the state courts exercise a jurisdiction, concurrent and not inferior to that of the federal tribunals. And it is inherent in the nature of concurrent jurisdic 360] tion, *that the courts which exercise it are tribunals of coordinate and co-equal authority, and neither can control the determinations of the other by the exercise of appellate power; but the •adjudication of the court in which the jurisdiction first attaches, is •conclusive and final. This is a fair deduction from the provisions in both the state and the federal constitutions. The jurisdiction ■ of the state courts is admitted, and the judicial power of the United ■States is extended to the enumerated cases, but by no language which makes it exclusive. It follows that the jurisdiction of each .is concurrent, and there is nothing in the constitution giving either appellate control over the other. Appellate jurisdiction by either, over the other, would be fundamentally incompatible with the theory and structure of our system of government.

As nothing can be found in the 'third article of the constitution providing the organic law for the judicial system of the United States, which authorizes the exercise of appellate jurisdiction by the federal courts over the state courts, can it be pretended that this extraordinary power can be derived from any other part of the •constitution? There is no provision in the succeeding fourth, fifth, sixth, and seventh articles, even remotely bearing upon it; nor is there anything in the second article which defines the powers of the executive department, in any way relating to the subject. And ■certainly there is nothing to be found among the enumerated powers of Congress, in the first article, to warrant Congress in clothing the federal courts with any such authority. The eighth section of this article, containing the specific enumeration of the powers of ■Congress, authorizes Congress to establish courts inferior to the •Supreme Court; but there is nothing empowering Congress to authorize appeals from the state courts to the-Supreme Court, or to exercise any authority ^whatever over the state courts. The [361 first clause of this section confers the power 11 to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States.” 'The authority here given to raise revenue, with a view to pay debts ■and provide for the common defense and general welfare, clearly contains no grant of judicial power. The most latitudinarian construction heretofore given to the constitution, has not conceded to Congress general discretionary power to pass laws providing for the general welfare. On the contrary, it appears to be settled that this authority of Congress to provide for the common defense and general welfare has relation to the enumerated powers, and can be exercised only pursuant to, and in the execution of, the express powers granted and specifically enumerated.

Where, then, is the authority in the constitution for this appellate power ? Can it be found among the implied powers of the govern ment? The eighteenth clause of the eighth section, article one, cm powers Congress “ to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.” This is express authority for the exercise of the incidental powers, and having relation to the express powers, can only be exorcised pursuant to-them. It authorizes the enactment of all laws “proper and necessary ” for the execution of the express powers vested in the several departments of the government. Now, as the express power giving the Supreme Court of the United States appellate jurisdiction, is that which is contained in the third article of the constitution, and has relation only to appeals from the inferior federal tribunals, it follows that the incidental or implied power in relation thereto is lim 362] ited to *necessary and proper laws relating to appeals from the-inferior federal courts to the Supremo Court, and nothing more.

The second clause of the sixth article of the constitution, declaring the constitution, laws, and treaties of the United States, the-supreme law of the land, has been urged in support of the alleged supremacy of the judicial powers of the United States over the state courts. The clause, however, is merely declaratory, and vests-no specific power whatever in the government, dr any of its departments. No one questions the supremacy of the constitution, laws, and treaties of the federal government. This supremacy is not, however, absolute, and is limited to the sphere of the delegated powers of the federal compact. And the state courts are bound to-observe this supremacy in all matters judicially brought before them, as well as the federal courts. This supremacy therefore imposes subjection to the constitution, laws, and treaties of the United-States, but not subjection to the federal courts. The constitution and statutes of each state is the supreme law of the land within the sphere of the state authority; while the constitution, laws, and treaties of' the United States are the supreme law of the land within their appropriate operation. But how can this mere declaratory provision authorize appellate jurisdiction in the federal courts over the state-tribunals ? The very clause of the constitution which contains it, requires that the judges of every state shall be bound by the constitution, laws, and treaties of the United States as the supreme law of the land, anything in the constitution or laws of any state -to the contrary notwithstanding. And the succeeding clause of the •same article requires of the judicial officers of the several states, together with other officers, an official oath to support the constitution of the United States. Although the official oath of the federal ■officers requires the same thing, *yetitdoes not enjoin upon them [363 the duty of supporting the constitution of the several states. Not only, therefore, is no distrust in the state judiciary shown by the constitution, but the fidelity required by the oath of office implies that the determination of matters pertaining to the federal constitution, laws, etc., might occur in the state courts, as well as in the federal courts. And if a revising or controlling power over the state courts in this respect, by the federal courts, had been contemplated, it would undoubtedly have been expressly and distinctly delegated. , But this not having been done, the judicial officers of the several states, as well as the federal officers, are required, under the injunction of an official oath, to observe and support the constitution, laws, and treaties of the United States, as the supreme law of the land.

The existence of appellate power in the Supreme Court of the United States over the state courts, has been argued from its tendency to produce uniformity of decision, and prevent conflict between the adjudications of the state and the federal tribunals. This argument is founded on the supposed utility or beneficial tendency of such a power. It is an argument in favor, rather of the propriety and policy of the power than of its existence; and would be more appropriate on a political question before a convention or legislative assembly, than on a legal question before a court ■of justice. The judicial question before us is a mere question of interpretation, and is to be determined from the language of the constitution, by an application of the known and settled rules of judicial construction. The duty of judicial action does not go beyond this. But it is to be lamented, that the political bearing of questions of mere constitutional interpretation, in our courts, has been, heretofore, a source of too frequent error in this country, leading to determinations making the constitution by construction *what the judges wish it to be, or what they think it ought [364 to be, rather than what it actually is.

The alleged salutary tendency of this appellate power for the purpose of uniformity of decision, has been greatly exaggerated, and made a mere pretense to justify the power in question. For that uniformity is not in fact attained, or in good faith attempted, by the 25th section of the judiciary act of the Congress of 1789. That, act authorizes the appeal, in cases where the uniformity of decision-may exist, and denies it, in cases where the uniformity may not exist. It is only where the decision is in favor of the authority of the state, or against the power of the federal government, that the appeal is authorized. When, therefore, the state court has decided in. favor of the validity of a state law,, on the ground that it is not repugnant to the constitution of the United States, and the Supreme Court of the United States either has already decided, or would decide in favor of the validity of the law, there is uniformity of decision, and yet the appeal in such a case is allowed. On the other hand, where the gtate court decides against the validity of a state-law, and the federal court either has already decided, or would decide in favor of the validity of the law, there is want of uniformity; and yet in that case the appeal is denied. Uniformity of decision is, it would appear, a matter of no importance, providing the decision of the state court be in favor of the authority of the federal government. But where the state court decides to sustain the validity of a state law, there the want of uniformity will justify the federal court in reversing the judgment of the state court! The enormity of this solecism is made even more glaring by the fact, that the judges of the federal courts are under no official oath to-support the constitutions of the several states, against the authority 365] of which they are allowed to decide, while the ^judges of the state courts are placed under the solemnity of that official injunction, to support the constitution of the United States, as well as that of their-state. Yet notwithstanding this, the decision of the court of last resort in a state is, according to this law of Congress, presumed to be right, and therefore final, if it be against the authority of the state,, and in favor of that of the United States; but if the decision be to the contrary, it is presumed to be liable to error; and therefore subject to-revision and reversal in the federal court. This presents the monstrous absurdity in judicial action, of making the judgment of a court of justice final or not, according to the party in whose favor-it may happen to have been rendered ; of making a court the court of last resort, or not, in the determination of a cause, according as it may be decided in favor of one or the • other of the parties. This novel and extraordinary feature in the judicial system of the United States, is founded on a want of confidence in the integrity and fidelity of the state courts, and. only admits that they are to be trusted as impartial, when they decide in a particular way, in other words, in favor of the power of the general government. The manifest effect of this incongruity is to aggrandize the federal government, at the expense of the degradation of that of the severel states.

Upon no ground whatever can uniformity of decision be urged as an argument in favor of the existence of this appellate power. The courts of this county are prone to follow precedents, and sometimes even go too far, for the sake of uniformity of decision. Notwithstanding this, there is often as much want of uniformity in the various decisions of the same court, as it is to be found between the decisions of the courts of the different states, or between? the decisions of the state and the federal courts.

And'there can be no conflict of authority between courts of ♦concurrent jurisdiction, as it is settled that, as between [366 courts of concurrent jurisdiction, the adjudication of the court in which the jurisdiction first attaches, is final and conclusive upon the parties. And in all cases of concurrent jurisdiction in different courts, the plaintiff selects the tribunal in which to bring his suit; and having selected his tribunal, he should abide by the decision. Nor has the defendant any right to complain in such ease, and have another trial in the federal courts, when the decision of the state court is against him. Whether he be a citizen, or mere nonresident, or sojourner in the state, he is bound to acquiesce in the decisions of its tribunals, having subjected himself to this liability by voluntarily putting himself under the protection of its laws.

It has been argued in favor of this appellate power, that appeals were allowed from the state courts to the courts established by Congress, under the articles of confederation of 1778, an instrument which, as it has been said, encroached far less on the sovereignity of the states than the present constitution. The foundation of this, as an argument drawn from analogy, when accurately understood, is in reality against,' instead of being in favor of the existence of this power under the present constitution. The only provision in relation to the exercise of judicial power, contained in the articles of confederation, is the following, in article nine : “ The United States, in Congress assembled, shall have the sole and exclusive right and power of apinointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and determining finally appeals in all cases of captures."

The judicial power here given over piracies and felonies upon the high seas, is “ sole and exclusive." So also is the power of establishing appellate courts of dernier resort for the final determi 367] nation of all cases of captures “ sole and exclusive." Some such language as this would have been used in the constitution of the United States, had it been the intention to give the federal courts exclusive jurisdiction over, or the exclusive final determination of, the various cases to which the judicial power of the United States was extended.

This provision, however, in the articles of confederation, affords no groundTor argument founded on precedent or analogy, in favor of this appellate power over the state courts. The relation of the states to the authorities under the confederation, was essentially different from that of the states to the federal government. Under the constitution of the United States, the federal government is a distinct and independent government, to which the several states stand in the relation of distinct, equal, and co-ordinate powers. But the confederation did not in reality possess the essential elements of a distinct government. The only distinct branch of government established by it was the Congress, and that was greatly dependent on the states. The confederation was a mere alliance of the states for common defense, and certain general regulations respecting their foreign relations, commercial affairs, etc. It was not a distinct government in and of itself, but a mere agency of the states, exorcising their confederated authority. No distinct judicial system was, in fact, established by the confederation; no superior and subordinate courts authorized, and no distribution of jurisdiction provided for: so that no precedent or analogy whatever is to be found here, for this supervisory control over the state courts.

It has been said that this appellate power of the Supreme Court of the United States is sustained by contemporaneous construction of the constitution. This is, however, chiefly founded on the opinion expressed in the political work entitled “ The Federalist,” consisting of a series of articles written by Messrs. Hamilton, Madi 368] son, and Jay, over the ^signature of “ Publius.” "While this work is not entitled to the weight of judicial authority, it is liable to the further objection that it was a newspaper publication, written In the haste and excitement of a political contest. And although, the authors were gentlemen eminently distinguished for ability and patriotism, yet they took part with the political party, which, in .the constitutional convention, insisted on an enlargement of the powers of the federal government beyond that which was conceded by the convention in the formation of the constitution. It is a historical fact, that the convention which formed the constitution of the United States was, to a considerable extent, divided into two parties, one of which insisted on the establishment of a national government, with an absolute negative on the power of the state governments, while the other insisted on a strictly federal government, reserving and securing to the several states their freedom and sovereignty as distinct, equal, and co-ordinate governments. On the one side, it was urged that the danger to be apprehended was, that the reserved powers of the states would combine and destroy the efficiency of the delegated power; and on the other side, it was strenuously insisted that the danger to be feared was that the delegated powers of the general government would absorb the reserved powers of the states and result in a consolidated government destructive to the sovereignty of the states, and dangerous to the freedom of the people. This division of opinion was manifested in the proceedings of the convention throughout its deliberations, and produced much solicitude and excitement among the people of the several states. Those in the convention in favor of a national government were found in the minority; and although they yielded in the convention, and ably advocated the adoption of the constitution, they did not abandon their political views, but sought still *to carry them out, to some extent, by enlarging the powers [369 of the general government by a very liberal, and in some instances, a latitudinarian construction of the constitution. The authors of the “Federalist,” acting with the party, which insisted on giving the greatest strength and energy to the general government, placed that construction on the constitution, which tended most to enlarge its powers. It is true, Mr. Madison afterward somewhat changed his course, united with Mr. Jefferson and his friends, and, for a time, adopted the strict construction of the constitution, as appears from, his report and resolutions in the legislature of Virginia,'in January, 1800.

The articles in the “Federalist,” therefore, should be received with many grains of allowance on account of their partisan character. And written in the heat of a political contest, it is not surprising that they are not, in all their parts, perfectly consistent.

It is true, that the 82d number of the articles in this work, and which was written by Mr. Hamilton, expresses the opinion that “the national and the state (judicial) systems are to be regarded at one whole and that an appeal lies, not only from the state courts, to the Supreme Court of the United States, but on the last page-of this article, he adds: “ I perceive at present no impediment to the establishment of an appeal from the state courts to the subordinate national tribunals, and many advantages attending the power of doing it may be imagined!” This opinion as expressed is not deduced from a close and satisfactory analysis, or inteipretatio’n of the language of the constitution. And if it be followed, Congress would have the power, and may, whenever that body deems it proper, make the judgments of the highest courts in the several states subject to revision and reversal in the United States district 370] court, which *is held by a single judge, or in any of the other subordinate courts of the United States. If the doctrine of this work is to be adopted in the construction of the constitution, Congress may pass a law authorizing appeals from any of the courts of a state, even from justices of the peace, to any of the federal tribunals; and the judgments of the Supreme Court, or of any of the other courts of a state, may be made subject to revision and reversal in any of the subordinate federal tribunals, oven in that of a mere commissioner under the federal judiciary, now in the exercise of judicial power, notwithstanding he is not appointed by and with the advice and consent of the senate,. If this doctrine be tenable, the constitution has provided no safeguard whatever for the independence and sovereignty of the states.

In the 81st article of the “Federalist,” Mr. Hamilton expresses the opinion, that Congress may confer jurisdiction on the state courts to try causes arising out of the federal constitution, and adds, in his own words: “ To confer upon the existing courts of the several states, the power of determining such causes, would perhaps be as much ‘to constitute tribunals’ as to create new courts with the like power f etc. How is this to be reconciled with the first section of the third article of the constitution, containing the positive provision that 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 rime ordain and establish, the judges of which courts shall hold their offices during good behavior, and at stated times, receive-for their services a compensation from the United States, which shall not be diminished during their continuance in office? Are-not the judges of the inferior-courts, in whom the judicial power of the United States is authorized to be vested, federal courts exclusively? By whom are they to *be appointed? From [371 what source are they to receive their salaries ? And can their compensation be diminished during their term of office ?

As a further instance, to show the liberal construction given by Mr. Hamilton to the constitution, it may be added, that in his report as secretary of the treasury of the United States, of December 5, 1791, he expressly contends, that it belongs to the discretion of Congress to pronounce upon the objects which concern the general welfare, for which an appropriation of money may be made; and in his own words, says: “ There seems to be no room for a doubt that whatever concerns the general interests of learning, of agriculture, of manufactures,- and of commerce, are within the sphere of the national councils, as far as regard? an appropriation of money." Such a construction, once conceded, would result in a consolidation of all the controlling civil power and influence in the general government, and a total annihilation of the sovereignty and freedom of the states.

Yet on the fifth page of the 45th article in the “Federalist,” the following language is used by Mr. Madison:

“ The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will,, 'for the most part, be connected. The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state. . . . If the new constitution be examined with accuracy and candor, it will be found that the change, which it proposes, consists much less in the addition of new powers to the Union, than in the invigoration of its original powers."

Many pages might be occupied, in presenting the conflicting and irreconcilable opinions and speculations of the distinguished authors of this political publication. But *more attention has already [372 been given to it, than would have been deemed necessary, but for the fact, that it has been greatly relied on as authority, on the subject under consideration, even in the reported' opinions of the Supreme Court of the United States.

In further support of this alleged contemporaneous construction of the constitution, the opinion of the first Congress which assembled, and by which the judiciary act 1789 was passed, providing for this .appellate power, is sometimes referred to. This is also an authority novel in its character. The very question involved is that of the ■constitutionality of the twenty-fifth section of the judiciary act providing for the exercise of this appellate power. And is this to be determined by th'e opinion of the legislative body which enacted the law? If this be good authority, every unconstitutional law can •sustain itself; for the law itself is an authoritative exposition of the opinion of the august body, by which it was enacted. By such authority, the constitutionality of the alien and sedition laws could be sustained, which vested arbitrary and despotic power in the president of the United States, and abridged the freedom of speech .and of the press, in plain violation of the constitution; and also, the constitutionality of the numerous other acts which have been repealed, and are now repudiated by the forc