The marshal is obliged to give security to the United States in twenty thousand dollars, for the faithful performance of the duties of his office by himself and his deputies, and, together with his deputies, to take an oath of office. By the common law, the death of the principal is a virtual repeal of the authority of the substitute or deputy; but to guard against any inconvenience which might arise from the operation of this principle, and to prevent the mischiefs of a vacancy in office, the act establishing the judicial courts has provided, that in case of the death of the marshal, his deputies shall continue in office, unless otherwise especially removed, and shall execute the same in the name of the deceased marshal, until another marshal shall be appointed and sworn. So, a marshal, when removed from office, or his term of office expires, may still execute all process in his hands, and he remains responsible for his prisoners until they are duly delivered over to his successor.b And with respect to the custody of the prisoners, under the law of the United States, the marshal is directed to deliver his prisoners to the keeper of one of the jails of the state in which he is marshal, in cases where the legislature of the state, in conformity with the recommendation of congress, have made it the duty of the jailors to receive them; but

of this executive power, by placing the appointment of inferior officers (and which would include ninety-nine out of a hundred of the lucrative officers of the government) in other hands. 3 Story's Comm. 394–397.

a Act of Congress of September 24th, 1789, sec. 27. By the act of con. gress of April 10th, 1806, c. 21, the marshal's bonds are to be filed and recorded in the office of the clerk of the District Court or Circuit Court sitting within the district; and suits for the breach of the condition of any such bond may be instituted in the name, and for the sole use of the person injured by a breach of the condition of the bond, and judgments on the bond are to remain as a security for the benefit of any person injured by the breach thereof.

b Ibid. sec. 28.

where they have not, the marshal, under the direction of the district judge, is to provide his own place of security.a

Resolutions of Congress, September 23d, 1789, and March 3d, 1791. See, also, the Act of Congress of January 6th, 1800, and 1 Paine's Rep. 368. The marshal is bound to take from the prisoner, under United States' process, a bond for the limits, as in the case for prisoners under state process.

LECTURE XV.

OF THE ORIGINAL AND APPELLATE JURISDICTION OF

THE SUPREME COURT.

Test of constitutional power.

HAVING taken a general view of the great departments of the government of the United States, I proceed to a more precise examination of its powers and duties, and of the degree of subordination under which the state governments are constitutionally placed.

The constitution of the United States is an instrument containing the grant of specific powers, and the government of the Union cannot claim any powers but what are contained in the grant, and given either expressly, or by necessary implication. The powers vested in the state governments by their respective constitutions, or remaining with the people of the several states prior to the establishment of the constitution of the United States, continue unaltered and unimpaired, except so far as they are granted to the United States. We are to ascertain the true construction of the constitution, and the precise extent of the residuary authorities of the several states, by the declared sense and practice of the governments respectively when there is no collision; and in all other cases where the question is of a judicial nature, we are to ascertain it by the decisions of the Supreme Court of the United States; and those decisions ought to be studied and universally understood, in respect to all the leading questions of

constitutional law. The people of the United States have declared the constitution to be the supreme law of the land, and it is entitled to universal and implicit obedience. Every act of congress, and every act of the legislatures of the states, and every part of the constitution of any state, which are repugnant to the constitution of the United States, are necessarily *314 void. This is a clear and settled principle of constitutional jurisprudence. The judicial power of the Union is declared to extend to all cases in law and equity arising under the constitution; and to the judicial power it belongs, whenever a case is judicially before it, to determine what is the law of the land. The determination of the Supreme Court of the United States, in every such case, must be final and conclusive, because the constitution gives to that tribunal the power to decide, and gives no appeal from the decision.

With respect to the judicial power, it may be generally observed, as the Supreme Court declared, in the case of Turner v. The Bank of North America,b that the disposal of the judicial power, except in a few specified cases, belongs to congress; and the courts cannot exercise jurisdiction in every case to which the judicial power extends, without the intervention of congress, who are not bound to enlarge the jurisdiction of the federal courts to every subject which the constitution might warrant. So, again, it has been decided,c that congress has not delegated the exercise of judicial power to the circuit courts, but in certain specific Both the constitution and an act of congress

cases.

is

is

a See supra, p. 243.

b 4 Dallas, 8.

• M'Intyre v. Wood, 7 Cranch, 504. Livingston v. Vanduzer, 1 Paine, 45. United States v. Hudson & Goodwin, 7 Cranch, 32. United States v. Bevans, 3 Wheaton, 336.

must concur in conferring power upon the circuit courts. A considerable portion of the judicial power, placed at the disposal of congress by the constitution, has been intentionally permitted to lie dormant, by not being called into action by law. The 11th section of the judiciary act of 1789, giving jurisdiction to the circuit courts, has not covered the whole ground of the constitution, and those courts cannot, for instance, issue a mandamus, but in those cases in which it may be necessary to the exercise of their jurisdiction.b The original jurisdiction of the Supreme Court is very the Supreme limited, and it has been decided that congress has no power to extend it. It is confined by the constitution to those cases which affect ambassadors, other public ministers and consuls, and to those in which a *315 state is a party;d and, *it has been made a ques

Original ju

risdiction of.

Court.

tion, whether this original jurisdiction of the Supreme Court was intended by the constitution to be exclusive. The judiciary act of 1789 seems to have considered it to be competent for congress to vest concurrent jurisdiction, in those specified cases, in other courts; for it gave a concurrent jurisdiction, in some of those cases, to the circuit courts. In the case of The United States v. Ravara,f this point arose in the Circuit Court for Pennsylvania district, and it was held that congress could vest a concurrent jurisdiction in other courts, of those very cases over which the Supreme Court had original jurisdiction; and that the word original was not to be taken to imply exclusive cognizance of the cases enumerated. But the opinion of the Supreme Court of the United States, in Marbury v.

a Conkling's Treatise, 2d edit. 68.

b Smith v. Jackson, 1 Paine's Rep. 453.

c Marbury v. Madison, 1 Cranch, 137.

• Act of Congress, September 24th, 1789, sec. 13.

d Art. 3. sec. 2.

1 2 Dallas, 297.