clature and either one means a proceeding in court, a suit or action. 48

MARSHALL ON CASES AFFECTING AMBASSADORS

On this subject Chief Justice Marshall said:

"If a suit be brought against a foreign minister, the Supreme Court alone has original jurisdiction, and this is shown on the record. But, suppose a suit to be brought which affects the interest of a foreign minister, or by which the person of his secretary, or of his servant, is arrested. The minister does not, by the mere arrest of his secretary, or his servant, become a party to this suit, but the actual defendant pleads to the jurisdiction of the court, and asserts his privilege. If the suit affects a foreign minister, it must be dismissed, not because he is a party to it, but because it affects him. The language of the Constitution in the two cases is different. This court can take cognizance of all cases 'affecting' foreign ministers; and, therefore, jurisdiction does not depend on the party named in the record. But this language changes when the enumeration proceeds to the States. Why this change? The answer is obvious. In the case of foreign ministers, it was intended, for reasons which all comprehend, to give the national courts jurisdiction over all cases by which they were in any manner affected. In the case of States, whose immediate or remote interests were mixed up with a multitude of cases, and who might be affected in an almost infinite variety of ways, it was intended to give jurisdiction in those cases only to which they were actual parties." 49

ORIGINAL JURISDICTION OF THE SUPREME COURT Original jurisdiction means that parties who are authorized to do so may bring an action in the Supreme Court without first having brought it in one of the inferior courts. This clause of the Constitution names those who may do this. They are: 1, ambassadors, 2, other public ministers, 3, consuls, 4, a State. This limits the original jurisdiction of the Supreme Court to a very narrow field. On the subject of original jurisdiction, Chief Justice Marshall said:

48 Blyen v. U. S., 13 Wallace, 581-595.

499 Wheaton, 854.

"The original jurisdiction of the Supreme Court, in cases where a State is a party, refers to those cases in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised in consequence of the character of the party, and an original suit might be instituted in any of the Federal courts; not to those cases in which an original suit might not be instituted in a Federal court. Of the last description is every case between a State and its citizens, and perhaps every case in which a State is enforcing its penal laws. In such cases, therefore, the Supreme Court cannot take original jurisdiction. In every other case, that is, in every case to which the judicial power extends, and in which original jurisdiction is not expressly given, that judicial power shall be exercised in the appellate, and only in the appellate form." 50

TREASON-LEVYING WAR

In Bowlman's case,51 in 1807 Chief Justice Marshall in regard to treason said: "to constitute treason war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. . . . It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose, to constitute a levying of war."

The opinion of Chief Justice Marshall in the Burr Trial covers the whole doctrine of treason. The courts have never gone beyond it in discussing the general subject. Marshall at the trial of Aaron Burr said, in referring to this language, according to the opinion it is not enough to be leagued 506 Wheaton 398, 399.

51 4 Cranch, 75, 125.

in the conspiracy and that war be levied, but it is also necessary to perform a part; that part is the act of levying war. That part, it is true, may be minute, it may not be the actual appearance in arms, and it may be remote from the scene of action, that is, from the place where the arms are assembled, but it must be a part, and that part must be performed by a person who is leagued in the conspiracy. This part, however minute or remote, constitutes the overt act, of which alone the person who performs it can be convicted.52

POWER OF THE COURTS TO ANNUL LAWS

Upon this question John Marshall gave his views at the Virginia Convention, and made his position very clear. He said:

"If the United States were to make a law not warranted by any of the powers enumerated it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void. To what quarter will you look for protection from an infringement on the Constitution, if you will not give the power to the Judiciary? There is no other body that can afford such protection.

AS COUNSEL IN WARE v. HILTON MARSHALL DENIES THE POWER TO ANNUL LAWS

In the argument of Marshall in the case of Ware v. Hilton 53 we see that he challenged the power of the court to pass upon the validity of legislation. He said:

"The legislative authority of any country can only be restrained by its own municipal constitution; this is a principle that springs from the very nature of society; and the judicial authority can have no right to question the validity of a law, unless such a jurisdiction is expressly given by the Constitution. It is not necessary to enquire, how the judicial authority should act, if the legislature were evidently to violate any of the laws of God; but property is the creature of civil society, and subject, in all respects, to the disposition and control of civil institutions."

52" Burr's Trial," Vol. II, 438, 439. 53 3 Dallas, 211.

AS CHIEF JUSTICE, MARSHALL MAINTAINS THE POWER TO ANNUL LAWS

As a member of the Virginia Convention,54 Marshall held that the judiciary could declare certain laws void, as counsel in Ware v. Hilton 55 his argument was at variance with what he said at the Convention, but as Chief Justice he returned to his original position and expounded the same views he held at the Convention. In his opinion in Marbury v. Madison 56 Chief Justice Marshall said:

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So, if a law be in opposition to the Constitution; if both the law and the Constitution applied to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

Sev

In Martin v. Hunter 57 Justice Story in his opinion held the same, and that doctrine has been adhered to ever since. eral years later in Cohens v. Virginia,58 Marshall said:

"The constitution and laws of a State, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void. In a government so constituted, is it unreasonable that the judicial power should be competent to give efficacy to the constitutional laws of the legislature? That department can decide on the validity of the constitution or law of a State, if it be repugnant to the Constitution or to a law of the United States. Is it unreasonable that it should also be empowered to decide on the judgment of a State tribunal enforcing such unconstitutional law? Is it so very unreasonable as to furnish a justification for controlling the words of the Constitution? We think it is not. We think that in a 54 Eliot, 3, 553.

55

56

3 Dallas, 211.

Cranch, 147.

57 1 Wheaton, 264, 304, 344.

586 Wheaton, 414, 415.

government acknowledgedly supreme, with respects to objects of vital interest to the nation, there is nothing inconsistent with sound reason, nothing incompatible with the nature of government, in making all its departments supreme, so far as respects those objects, and so far as is necessary to their attainment. 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 into question."

THE GOVERNMENT OF TERRITORIES

The power to acquire territory is inherent in every sovereignty, and the acquisition may be made by treaty, purchase, discovery, or conquest. The most usual mode is by treaty. When territory is acquired by the United States, Congress can form it into a district or subdivision which is inferior to a territory, and in time it can be formed into a territory with a legislature elected by the citizens who are qualified to vote and who reside in such territory. The leading officials are appointed by the President. Much light is given to this subject by Chief Justice Marshall in the case of the American Insurance Company v. Canter,59 he said:

"Perhaps the power of governing a territory belonging to the United States, which has not, by becoming a State, acquired the means of self-government, may result necessarily from the facts that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable cor sequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned."

AMENDMENTS TO THE CONSTITUTION

In Fletcher v. Peck,80 Chief Justice Marshall said:

"The principle is asserted, that one legislature is competent to repeal any act which a former legislature was competent to pass; and that one legislature cannot abridge the powers of a succeeding legislature. The correctness of this principle, so

591 Peters, 541. 60 6 Cranch, 87.