the subject-matter in the tribunal appointed to perform the duty, and to be bound by its decision. In both cases the

case, at the next term of the Supreme Court, would seem to have been made merely for the purpose of having it judicially determined in this court whether the judges, under that law, were authorized to act in the character of commissioners. For every judge of the court, except Thomas Johnson, whose opinion is not given, had formally expressed his opinion in writing, that the duty imposed, when the decision was subject to the revision of a secretary and of Congress, could not be executed by the court as a judicial power; and the only question upon which there appears to have been any difference of opinion was, whether it might not be construed as conferring the power on the judges personally as commissioners. And if it would bear that construction, there seems to have been no doubt at that time but that they might constitutionally exercise it, and the secretary constitutionally revise their decisions. The law, however, was repealed at the next session of the legislature, and a different way provided for the relief of the pensioners: and the question, as to the construction of the law, was not decided in the Supreme Court. But the repeal of the act clearly shows that the President and Congress acquiesced in the correctness of the decision, that it was not a judicial power.

"This law is the same in principle with the one we are now considering, with this difference only, that the act of 1792 imposed the duty on the court eo nomine, and not personally on the judges. In the case before us, it is imposed on the judge, and it appears from the note to the case of Heyburn, that a majority of the judges of the Supreme Court were of opinion that if the law of 1792 had conferred the power on the judges, they would have held that it was given to them personally by that description, and would have performed the duty as commissioners, subject to the revision and control of the secretary and Congress, as provided in the law. Nor have Justices Wilson, Blair, and Peters, district judges, dissented from this opinion. Their communication to the President is silent upon this point. But the opinions of all the judges embrace distinctly and positively the provisions of the law now before us, and declare that, under such a law, the power was not judicial within the grant of the Constitution, and could not be exercised as such. Independently of these objections, we are at some loss to understand how this case could legally be transmitted to this court, and certified as the transcript of a record in the district court. According to the directions of the Act of Congress, the decision of the judge and the evidence on which it is founded, ought to have been transmitted to the Secretary of the Treasury. They are not to remain in the district court, nor to be recorded there. They legally belong to the office of the

United States had an interest, since, if the claims were allowed, they must be paid from the treasury; and if not allowed, the government would not be called upon to pay: but the Acts of Congress, providing for the adjustment of the claims, did not make the United States a party to the proceedings, and the absence of a contesting party is one circumstance which marks the distinction between adjudications which belong to the judicial power, and those which do not.1

§ 100. There is a recent statute which establishes a commission for the adjudication of private land claims, which makes provisions that obviously bring the proceedings within the judicial power. By the Treaty of Guadaloupe Hidalgo, between the United States and Mexico, which ceded to the United States territory now lying within the limits of California, the property of Mexicans, resident or non-resident in the territory ceded, was secured to them; and by an Act of Congress, passed March 3, 1851, a commission was constituted for the purpose of ascertaining and settling the private land claims, growing out of titles derived from the Spanish or Mexican governments. The act directed the appointment of an agent to superintend the interests of the United States before the commissioners; that the commissioners should receive evidence on behalf of the claimant, and also on behalf of the United States, and should decide on the validity of the claim, and within thirty days after their decision, should certify the same, with the reasons on which it was founded, to the District Attorney of the United States. It further provided, that either party, the claimant, or the United

Secretary of the Treasury, and not to the court; and a copy from the clerk of the latter would not be evidence in any court of justice. There is no record of the proceedings in the district court, of which a transcript can legally be made and certified; and, consequently, there is no transcript now before us that we can recognise as evidence of any proceeding or judgment in that court."

See the argument of Ch. Justice Marshall in Jona. Robbins' case, cited ante, 287.

States by their District Attorney, might present a petition to the District Court to review the decision of the commissioners; prescribed the pleadings and evidence on which the court should proceed to such review, and from the judgment of the District Court gave an appeal to the Supreme Court of the United States. All lands to which claims were not finally established, were declared, by the act, to be part of the public domain of the United States.

§ 101. It is quite obvious that proceedings thus instituted in the District Court, to which the United States are a party, as a contesting claimant of the land in controversy, by virtue of their sovereignty; conducted upon allegations and evidence; and finally carried by appeal to the highest judicial tribunal;-are judicial proceedings: and the jurisdiction of the courts of the United States attaches, both upon the ground that the cases arise under a treaty, and an Act of Congress, and because the United States are a party.1

§ 102. Similar proceedings were provided for by Acts of Congress, passed to carry into effect the treaties by which Florida and Louisiana were ceded to the United States. The whole series of adjudged cases under these acts, developing the principles of jurisprudence applied to the claims, will be examined in a subsequent chapter.

1 See further respecting the jurisdiction in the cases of California Land Titles, post.

2 See post.

CHAPTER VII.

DISTRIBUTION AND EXERCISE OF THE JUDICIAL POWER.

§ 103. HAVING now taken a survey of the cases within the judicial power of the United States, we are next to examine the mode in which it is to be exercised, the tribunals in which it is or may be vested, and its relations to the state tribunals.

§ 104. The great mass of jurisdiction, of which the outline has been stated in the previous chapters, except so far as it was vested in some tribunal by the Constitution itself, remained to be distributed, vested, and regulated by Congress. The Constitution declares 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 time ordain and establish." It then declares, after the enumeration of the cases to which the judicial power shall extend, that "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." So far, therefore, as the judicial power was not vested by the Constitution itself, it became the duty of Congress to vest it, and to vest it in tribunals created by Congress itself. Consequently, no part of it could be conferred

on state courts.3

1 Art. 3, Sec. 1.

3 Martin v. Hunter, 1 Wheaton, 304.

2 Art. 3, Sec. 2.

§ 105. The Constitution itself has established one tribunal, or rather made its establishment imperative upon Congress, and left to the discretion of Congress the form and jurisdiction of such inferior tribunals as it may from time to time deem necessary, as the depositories of that portion of the jurisdiction not already vested in the Supreme Court. The mandate is supposed, however, to be imperative, in both of its branches. Congress could not lawfully have refused to establish the Supreme Court, as the depository of the original and appellate jurisdiction which the Constitution had declared shall be vested in it; and it would seem that Congress are equally bound to create some inferior courts, in which to vest all the jurisdiction which is by the Constitution. exclusively vested in the United States, and of which the Supreme Court cannot take original cognizance: since the whole judicial power must at all times be vested, either in an original or appellate form, in some tribunals created by Congress.1

§ 106. The Constitution having extended the judicial power to all the cases which it enumerates, and having limited the mode of its exercise in no other way than to declare that the Supreme Court shall have original jurisdiction in certain cases, and an appellate jurisdiction in all other cases, with such exceptions and under such regulations as Congress shall make, the whole mass of the jurisdiction is manifestly to be exercised either in the form of original or appellate jurisdiction, or both; since there is nothing in the nature of the cases, which binds to the exercise of the one in preference to the other. The first inquiry, therefore, that presents itself, is, what is the constitutional mode in which the original jurisdiction may be exercised.

§ 107. Original jurisdiction is that in which something is demanded, in the first instance, by the institution of process; or, as it is commonly termed, by the commencement of a

Martin v. Hunter, ub. supr.

2 Ibid.