CHAPTER XXI. OF THE JUDICIAL POWER. No form of government is complete unless it be accompanied with a judicial power. To make laws and to execute them are the two great operations of government; but they cannot be fully and correctly executed unless there is somewhere resident a power to expound and apply them. This power is auxiliary to the executive authority, and in some degree partakes of its nature. But it is also required at times to control the executive, and what it decides to be unlawful, the executive cannot perform. It may also in some degree be said to participate in the legislative power. Its construction of the acts of the legislature is received as binding and conclusive, although it does not prevent the legislature from repairing its own defects, or clearing up its own ambiguities by subsequent laws, operating on subsequent cases. A high function also appertains to the judiciary in the exclusive right to expound the Constitution, and thereby to test the validity of all the acts of the legislature. To the people at large, therefore, this institution is peculiarly valuable, and ought to be eminently cherished by them. On its firm and independent structure they repose with safety, while they perceive in it a faculty which is only set in motion when applied to, but which when thus brought into action, proceeds with competent power if required, to correct the error or subdue the oppression of both or either of the two other branches. A Constitution in which there was an omission to provide an adequate judiciary could not be successfully carried into effect; and if instead of being separate and independent, this power were either blended with the other two, or those who administer it were dependent on the will and pleasure of others, its lustre would be tarnished and its utility destroyed. The Constitution of the United States, therefore, required a judicial power, not as an adjunct, but as a necessary component part. The extraordinary complications of the authority of the United States with that of the several states, which seem at first view to throw so many difficulties in the way, fully prove its necessity. The state tribunals are no part of the government of the United States. To render the government of the United States dependent on them, would be a solecism almost as great as to leave out an executive power entirely, and to call on the states alone to enforce the laws of the Union. But it is not inconsistent with this principle that the United States may, whenever it is found expedient, elect to make use of a state tribunal to the same extent as any foreign power may, if it thinks proper to institute suits in the courts of other countries, which is in civil cases only. The judicial power is general or limited, according to the scope and objects of the government. In a word, it must be fully and exactly commensurate with that of the legislature. It cannot by any terms of language, be made to exceed the legislative power, for such excess would be inconsistent with its nature. If by express words it should, on the other hand, be restrained so as to embrace only a part of the subjects of legsilation, it would impair the integrity of the whole system. The protection which it was intended to afford, in regard to the other branches of government, being confined to parts of their conduct, instead of embracing the whole, would pro duce the incongruous mixture of a theoretic, general power with partial debility and impotence. If general terms are used in describing it, there is no difficulty in defining its proper extent. In the Constitution of the United States we perceive, not the express creation of a judicial power, but the recognition of it as a necessary part of the government, in which light it was justly considered and has been universally accepted. Its power extends to the great selected objects already noticed, and it is the duty of those who have to administer it, to carry it to that full extent, but never to exceed it. Experience has already shown that from a wise and temperate administration, the apprehension of inconvenience from serious collisions between the state judicatures and those of the United States was unfounded. It must be confessed that the merits of our Constitution have received ample support from the prudence and judgment with which it has been administered, and in no respect has a sounder discretion been exhibited than in the judicatory. If any objection could be sustained to the procedures of the judges of the supreme and circuit courts, it would be that of excessive caution, arising from a systematic anxiety not to exceed their jurisdiction. And it is a strong argument in favour of an elective government, that those men in whom the power of appointment is vested by the choice of the people, have, in regard to these judicial officers, exercised it with so much caution, judgment, and success. But it is said that there is generally a propensity in public functionaries to extend their power beyond its proper limits, and that this may at some future time be the case with the courts of the United States. The instances may be those in which the case is plain, and the encroachment upon state authority too obvious to be denied; as if a court of the United States should entertain a civil plea between two citizens of the same state in a case not authorized by the Constitution, or criminal proceedings on account of an offence merely against a state. In such an extreme, and therefore improbable case, as there would be no colour of jurisdiction, the whole proceedings would be void. If, however, under the existing circumstances, it were doubtful and ambiguous, or if it were blended with matters in which they had jurisdiction, the rule commonly adopted among different courts, sitting precisely under the same authority, would probably be resorted to,—and that which first obtained possession of the cause would be exclusively entitled to proceed. Where the jurisdiction of the United States court and of a state court is concurrent, the sentence of either, whether of conviction or acquittal, may be pleaded in bar to a prosecution in the other, with the same effect as a judgment of a state court in a civil case may be pleaded in bar to an action for the same cause in a circuit court.* A jurisdiction exclusive of the state.courts, is not expressly given by the Constitution to any of the courts of the United States, but it is in several instances clearly implied. Cases of admiralty and maritime jurisdiction, and controversies between two or more states, must, by necessary construction, exclusively appertain to the courts of the United States: the first, because the whole system of maritime affairs with its connexions and dependencies is withdrawn from the several states by their own consent, and vested in the general government; the second, because there can exist no other than the common tribunal, the supreme court of the United States, to entertain such suits. Indeed the jurisdiction itself is created by the Constitution, and vested in the supreme court of the United States alone, thus rendering the dignity of the tribunal correspondent to the dignity of the parties. * Houston v. Moore, 5 Wheaton, 31. See also Osborne v. Bank of the United States, 9 Wheaton, 733 Cases affecting ambassadors, other public ministers and consuls, are also enumerated as falling within the jurisdiction of the courts of the United States; reasons have been given for not considering this jurisdiction as entirely exclusive. It is true that an act of congress has declared that the jurisdiction is exclusive, and the practice is understood to have been in conformity to it, but the main question has never been brought to a judicial test. The same sentence extends the judicial power to all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to controversies to which the United States shall be a party; to controversies 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. In some of these cases, it may be doubted whether it was intended, and whether it would be beneficial to the United States, that the jurisdiction should be exclusive; it may conduce to its best interests at times to have recourse, not to the legislative or executive powers of a state, of which it should ever be independent, but to a state judicature, which if rightly constituted, can be influenced by no local partialities or political jealousies, and which can no more withhold justice from the United States than from the meanest individual. Circumstances may render it expedient for the United States to institute civil suits for the recovery of debts, or damages for the breach of contracts due to themselves in the state courts. There is nothing in the Constitution to restrain them from so doing, nor to justify a refusal on the part of the state court to take cognizance of them. Such suits, indeed, are occasionally brought, and the United States, received as a plaintiff in the ordinary form, pursues them in the ordinary course to judgment and execution. But although the word "party" indicates a |