2. Sessions or Terms of the Supreme Court. The court is required to hold one session annually at the city of Washington, commencing on the first Monday of December.1 If a quorum does not attend on the day appointed for the commencement of the session, the justice or justices attending are authorized and required to adjourn the court from day to day, for twenty days, unless a quorum shall sooner attend. And if after a quorum shall have been formed, it shall happen that on any day a less number shall attend, the justice or justices attending are empowered to adjourn the court from day to day, until a quorum shall attend, and when expedient and proper to adjourn without day. The duration of the session is not prescribed by law, and is therefore discretionary with the court. In case of any adjournment for want of a quorum, the business of the court is to be continued to the next session; and the justice or justices attending are to make all necessary orders touching any suit, action, &c., preparatory to the hearing thereof.3 The sessions of the court are held in a room appropriated for that purpose in the national capitol.

1 Act of June 17, 1844, ch. 96, § 1 : 5 Stat. at Large, p. 676. Whenever by reason of contagious sickness it shall, in the opinion of the chief justice, or in case of his death or disability, of the senior associate justice, be hazardous for the court to sit in Washington, he is authorized to direct its adjournment to some other place. The same authority is also given to the district judges to adjourn the district or circuit courts. Act of Feb. 25, 1799, ch. 12, § 7: 1 Stat. at Large, p. 619.

* Act of Jan. 21, 1829, ch. 12: 4 Stat. at Large, p. 332.

'Act of April 29, 1802, ch. 31, § 1: 2 Stat. at Large, p. 156.

CHAP. 2.

PART 1.

CHAPTER III.

OF THE ORIGINAL JURISDICTION OF THE SUPREME

COURT.

In defining the original jurisdiction of the supreme court, the constitution designates two, and only two, descriptions of cases to which it shall extend: 1, cases affecting ambassadors, other public ministers and consuls; and 2, cases in which a state shall be a party. And with respect to all the other enumerated cases embraced by the judicial power, it is declared that, of these, the supreme court "shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as congress shall make." Article 3, section 2. But in the organic act, congress saw fit not only to exercise the discretionary authority thus expressly given with respect to the appellate jurisdiction of the supreme court, but to deal freely, also, with its original jurisdiction, conferred without any qualification. This was done chiefly by the thirteenth section of the act, which is as follows:

"And be it further enacted, That the supreme court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except, also, between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction; and shall have exclusively all such jurisdiction of suits or proceedings against ambassadors or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice-consul is a party; and the

trial of issues of fact in the supreme court, in all CHAP. 3. actions at law against citizens of the United States, shall be by jury. The supreme court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in cases hereinafter specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceedings as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."

1. Upon the organization of the supreme court under the constitution and judiciary act, the important and delicate duty devolved upon it of determining the limits, not only of the jurisdiction of the circuit and district courts, but also of its own. Questions of this nature, as they arose, from time to time, were almost invariably very elaborately argued by lawyers of great ability, and, especially after the accession to the bench of Chief Justice MARSHALL, were most thoroughly canvassed by the court. Among the early cases here alluded to, is that of Marbury v. Madison. The case was one of grave importance, for it imposed Congre upon the court the duty of deciding upon its compe- extend the tency to pass upon the constitutionality of an act of original congress; and, having arrived at the conclusion that it possessed the power, the duty also of exercising it by pronouncing the enactment brought into question invalid. Mr. Marbury had been appointed a justice be declared of the peace in the District of Columbia, and his commission, signed by the president, but not yet sealed, was withheld from him by Mr. Madison, secretary of state. One of the powers of the supreme court, specified, as we have seen, in the thirteenth section of the judicial act, is that of issuing writs of mandamus

power to

jurisdiction

of the su

preme

court, and

an act for that purpose may

void.

Writ of manda

mus.

PART 1. to persons holding office under the authority of the United States; and Mr. Marbury, deeming himself aggrieved, applied to the court to issue a writ of mandamus to Mr. Madison, requiring him to deliver the commission. The case was one arising under the constitution and laws of the United States, and one, therefore, to which the judicial power of the United States extended; but did the particular power invoked belong to the supreme court? Congress had assumed to confer it; but was the enactment warranted by the constitution? To issue the writ in such a case would be essentially the same as to entertain an original suit for the paper, and would, therefore, be the exercise, not of an appellate, but of original jurisdiction; the true criterion of appellate jurisdiction being, that it revises and corrects the proceedings in a cause already instituted, and does not create that 'cause. But the framers of the constitution thought proper to designate the cases over which the court should be invested with original jurisdiction, and to declare that in all others to which the judicial power extended, its jurisdiction should be appellate; and this affirmative grant of original jurisdiction implied a negative upon its exercise in any other case. For these reasons the court held that congress, in assuming to confer the jurisdiction in question, had transcended the limits of its own authority; and the motion was, accordingly, denied for want of jurisdiction.

An act void

as to origi

2. When a statute purports to confer on the supreme nal jurisdic court a power not within the scope of its original juristion may be valid as to diction, as defined in the constitution, but which adappellate.

mits of application as an appellate power, the principle established by this case renders the act invalid as a source of original jurisdiction, but does not affect its validity as a grant of appellate jurisdiction. The

supreme

issue the

habeas cor

fourteenth section of the judiciary act, for example, in CHAP. 3. general terms confers upon the supreme court, in common with the circuit and district courts and the several judges, the power to issue the writ of habeas corpus. Power of So far as this power is susceptible of being exercised court to as a part of the appellate jurisdiction of the supreme writ of court, in revising the decisions of the circuit and dis- pus, how affected by trict courts, it is valid, and, as will be shown in the this principle. next chapter, has been repeatedly exercised; but beyond this, as to the supreme court, the grant is ineffectual; and, therefore, an original application by an alien for a writ of habeas corpus, for the purpose of obtaining possession of his infant daughter, was denied, for want of jurisdiction. As an alien he had a right to sue in a court of the United States; but not being an ambassador, or other public minister, or consul, the original jurisdiction of the supreme court did not extend to his case. Had he previously applied to a circuit court, the decision of that court would have been subject to revision by the supreme court.1

tion of suits

state con

main

3. Notwithstanding the express delegation to the Jurisdic supreme court, by the constitution, of original juris- against a diction in all cases in which a state shall be a party, tested and the power of that court to entertain original jurisdic- tained. tion of suits of any description against a state, has been repeatedly and very earnestly contested, on the ground that congress had prescribed no sufficient rules of procedure adapted to the nature of the case, and that the court possessed no adequate means of enforcing its judgments. The question was very elaborately examined by the court in the early case of Chisholm v. The State of Georgia (2 Dallas, 419), and the above mentioned objections (Mr. Justice IREDELL dissent1 Ex parte Barry, 2 Howard, 65.