§ 540. In cl. 2, sect. 2, art. 3, the Constitution assigns such portion of the judicial power, so vested in the department, as it deems expedient, to the Supreme Court, leaving all the rest to be exercised by "such inferior courts as Congress may, from time to time, ordain and establish." The portion assigned to the Supreme Court is under two heads, original and appellate.

§ 541. 1st, Original. —"In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction." "Shall have . . . jurisdiction" is peremptory; and the use of this language shows, that the judicial power, of which this is a part, had already been vested in the department. If the actual investment of it required any other agency, or any other act than had been performed, then this peremptory assignment of a portion of it to a particular court could not have been made till such act had been performed; for, otherwise, it could not be known that it ever would be performed, and so this peremptory assignment fail. "Shall be vested" can mean nothing else than is vested. It has been decided by the Court, that this "original jurisdiction" can neither be enlarged nor diminished: because, if enlarged, it would detract from the constitutional appellate jurisdiction; and, if diminished, it would so far deny all jurisdiction to the Supreme Court, which can take appellate jurisdiction only

in "other cases." It must also be exclusive; because, if a case of this kind can originate in any other court, this court, not being able to take appellate jurisdiction, could have no jurisdiction at all.

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§ 542. 2d, Appellate. The next sentence is, "In all 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." The cases of original jurisdiction," and the "all other cases before mentioned," are all the cases to which the judicial power of the United States extends; and when it is said that the Supreme Court shall have" original or appellate jurisdiction over the whole of them, it only reiterates what it had distinctly said in the first section of the Article, that all the judicial power of the United States "shall be [is] vested" in its courts. The "appellate" portion, as well as the "original," is vested peremptorily, entirely, and irrevocably, but subject to "such exceptions, and under such regulations, as the Congress shall make."

§ 543. Congress, then, may except" some cases out of the appellate jurisdiction of the Supreme Court. But this exception shows that without it the whole jurisdiction is vested, and the exception must be in favor of some other court of the United States; otherwise the cases excepted would be left unprovided for. They

cannot make an exception out of the judicial power of the United States; or, in other words, they cannot diminish, abandon, or relinquish any portion of the judicial power of the government as vested by the Constitution, any more than they can do the same to the executive power, or to their own.

§ 544. They once undertook to resolve, that they had no right "to interfere in the emancipation of slaves, or with their treatment in any of the States;" and, at another time, that they had no right to abolish slavery in the District of Columbia. But neither of these altered the Constitution. As soon as they had a disposition to do the last, they did it; and, if the disposition had been equally strong to do the first, they would, as they ought, have done that also. As it was not, the people did it for them.

§ 545. Their authority was the same in both cases. Congress can legislate only by the powers conferred by the Constitution; and these are the same over the whole land. If they had

power to "secure the blessings of liberty" to the people of the United States in the District of Columbia, they had the same in all the States and Territories of the Union. They have no more right to withhold from the executive or from the judiciary the appropriate means of protecting every man against slavery, or of securing to every citizen all the privileges and iminunities of citizenship in every State, than

they have to say that they will not, and their successors shall not, "make all laws necessary and proper for carrying into execution all the powers vested in the government, or any department or officer thereof." And they have no more right to say, that the judicial department shall not have jurisdiction over every case,-" all cases arising under this Constitution,”-together with the proper means of executing it, than they have to accomplish either of the other inadmissible purposes.

§ 546. It is the duty of Congress to give effect to the whole constitutional jurisdiction of the department, and so to organize the courts as to render them adequate to its execution. They have no power to curtail or restrict, or otherwise qualify, it in any respect. They may remove or

except" some cases out of the appellate jurisdiction of the Supreme Court, by giving it to some other court of the United States in which the judicial power is vested, but not by abolishing it, or leaving it to be exercised or not by any body else. They may also make "regulations;" that is, prescribe rules by which the jurisdiction shall be exercised, so as to render it efficient and effectual for its purposes, but in no case to limit or obstruct it. To regulate a jurisdiction is to make rules for its exercise.

§ 547. The judicial power is exactly defined, and vested in the courts, by the Constitution; and the only power conferred on Congress by

this clause is to make exceptions to, and regulations for, the appellate jurisdiction of the Supreme Court. If they do neither, the Supreme Court has the whole appellate power by the Constitution. If they make "exceptions," they must give the cases excepted to some inferior court; for the whole "judicial power of the United States shall be vested in the Supreme Court, and in such inferior courts as Congress may... ordain "and establish." If they make "regulations," the jurisdiction must be exercised according to the rules so prescribed; otherwise, the jurisdiction must be exercised in conformity to such rules as the court itself may prescribe, according to law.

§ 548. It is proper, though perhaps unnecessary, to remark, that this commentary on the first and second sections of the third Article has been made on the plain and obvious meaning of the words of those sections, as they stand in the Constitution, irrespective of any practice of the government on the subject in its past history. It was the policy of the earliest administrations not to subject the machinery of the new government at once rashly to a full head of steam. This was for the double purpose of not exposing the public tranquillity to any unnecessary strain, by suddenly adopting too many new measures and novel appliances to the daily avocations and internal relations of the people, and of gaining time for themselves from the immediate pressure