are mentioned in the Constitution, and with reference to the provisions of that instrument; secondly, to treat of the distribution of the judicial power, as between the supreme and the inferior tribunals; and lastly, to exhibit the Jurisdiction and Practice of the Supreme Court of the United States.

§ 7. And first, with regard to the clause of the Constitution, which extends the Judicial Power to "all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;"-the first question that occurs, is, what is meant by "a case"? A case arises, within the meaning of the Constitution, whenever any question respecting the Constitution, laws, or treaties of the United States has assumed such a form, that the judicial power is capable of acting upon it. That power is capable of acting, only when the subject is submitted to it by a party, who asserts his rights in the form prescribed by law. It then becomes "a case." And by "cases in law" arising under the Constitution, &c., are to be understood suits in which legal rights are to be ascertained and determined in contradistinction to those where equitable rights alone are recognised and equitable remedies administered, or where the proceeding is in admiralty. By "cases in equity" are to be understood. suits in which relief is sought according to the principles and practice of the equity jurisdiction as established in English jurisprudence.3

§ 8. A case is to be said to "arise" under the Constitution,

'Per Marshall, C. J., in Osborn v. The Bank of the United States, 9 Wheaton, 819.

2 Robinson v. Campbell, 3 Wheat. 212, 221, 223; Parsons v. Bedford, 3 Peters, 433, 446, 447.

3 Robinson v. Campbell, 3 Wheat. 212; U. S. v. Howland, 4 Wheat. 108, 115; 1 Story's Eq. Jurisp. 57; 3 Story's Commentaries on the Constitution, 506, 507. See further, on the distinction between "law" and "equity," post.

laws, or treaties of the United States, whenever the construction of either of them is involved in a correct decision. It is not necessary that a right should be asserted, which has been given by some Act of Congress passed to execute the powers of the Constitution; or that a party should come into court to demand something conferred on him by the Constitution, or by a law. A case in law or equity consists of the right of the one party, as well as of the other, and may be truly said to arise under the Constitution, or a law of the United States, whenever its correct decision depends on the construction of either.1

§ 9. Cases may arise under the Constitution alone, in reference to the powers conferred, the privileges granted, or the rights secured, or the prohibitions contained in that instrument, whether Congress have legislated, or are required to legislate on the particular subject or not. Cases arise under the laws or treaties of the United States, when a question arises in a judicial proceeding, touching any right, privilege, claim, protection or defence, established by the legislation of the United States pursuant to the constitutional authority of Congress, or by a treaty entered into by the executive branch of the government; or when the construction of any treaty or law of the United States is drawn in question. Cases also arise under the Constitution, laws, or treaties of the United States, when the validity of any statute, or authority exercised under any state is drawn in question, on the ground of its being repugnant to the Constitution, or any law or treaty of the United States.3

§ 10. We have seen that it is not necessary, in order that a case should arise under the Constitution, or a law, or a treaty of the United States, so as to bring it within the judicial power, that a party should come into court to de

' Per Marshall, C. J., in Cohens v. Virginia, 6 Wheaton, 379. 23 Story's Com. on the Constitution, § 1641.

s Ibid.

mand something conferred upon him by the Constitution, or by such a law or treaty. It is sufficient if there is a judicial proceeding, in which a correct decision depends upon the construction of the Constitution, or a law or treaty of the United States. Nor is a case taken out of the operation of this clause of the Constitution by the fact that questions arise in the suit, which depend upon the general principles of law, if it also involves the construction of the Constitution, or a law or treaty of the United States, or a title, right, or authority, set up under the one, or the other, or all of them. The questions, which depend upon the general principles of law, are incidental to the question which brings the case within the judicial power of the Union; for when the latter question has arisen, the very case has arisen which the Constitution contemplated, and the other questions are drawn. after it, into the jurisdiction which the Constitution has established for cases that may thus arise.

§ 11. Thus, in the case of Osborn v. The Bank of the United States (9 Wheaton, 738, 819, 821), the question arose, whether Congress could constitutionally confer upon the Bank, created by Act of Congress, authority to sue and be sued in the courts of the United States. It was contended that several questions might arise, in such suits, depending upon the general principles of law, and not upon any Act of Congress. The Supreme Court said:

"The question is, whether it arises under a law of the United States?

"The appellants contend that it does not, because several questions may arise in it, which depend on the general principles of the law, not on any Act of Congress.

"If this were sufficient to withdraw a case from the jurisdiction of the Federal Courts, almost every case, involving the construction of a law, would be withdrawn; and a clause in the Constitution, relating to a subject of vital importance to the government, and expressed in the most comprehensive

terms, would be construed to mean almost nothing. There is scarcely any case, every part of which depends upon the Constitution, laws, or treaties of the United States. The questions, whether the fact alleged as the foundation of the action be real or fictitious; whether the conduct of the plaintiff has been such as to entitle him to maintain his action; whether his right is barred; whether he has received satisfaction, or has in any manner released his claims, are questions, some or all of which may occur in almost every case; and if their existence be sufficient to arrest the jurisdiction of the court, words which seem intended to be as extensive as the Constitution, laws, and treaties of the Union; which seem designed to give the courts of the government the construction of all its acts, so far as they affect the rights of individuals, would be reduced to almost nothing.

We, perceive, then, no ground on which the proposition can be maintained, that Congress is incapable of giving the Circuit Courts original jurisdiction in any case to which the appellate jurisdiction extends.

"We ask, then, if it can be sufficient to exclude this jurisdiction that the case involves questions depending on general principles? A cause may depend on several questions of fact and law. Some of these may depend on the construction of a law of the United States; others on principles unconnected with that law. If it be a sufficient foundation for jurisdiction, that the title or right set up by the party may be defeated by one construction of the Constitution or law of the United States, and sustained by the opposite construction, provided the facts necessary to support the action be made out, then all the other questions must be decided as incidental to this, which gives that jurisdiction. Those other questions cannot arrest the proceedings. Under this construction, the judicial power of the Union extends effectively and beneficially to that most important class of cases, which depend on the character of the cause. On the opposite construction, the judicial power can never be extended to a whole case, as expressed by the Constitution, but to those

parts of cases only which present the particular question involving the construction of the Constitution or the law. We say it can never be extended to the whole case, because, if the circumstance that other points are involved in it, shall disable Congress from authorizing the courts of the Union to take jurisdiction of the original cause, it equally disables Congress from authorizing those courts to take jurisdiction of the whole cause on an appeal, and thus will be restricted to a single question in that cause; and words obviously intended to secure to those who claim rights under the Constitution, laws, or treaties of the United States, a trial in the Federal Courts, will be restricted to the insecure remedy of an appeal upon an insulated point, after it has received that shape which may be given to it by another tribunal, into which he is forced against his will.

"We think, then, that when a question to which the judicial power of the Union is extended by the Constitution, forms an ingredient of the original cause, it is in the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it.

"The case of the Bank is, we think, a very strong case of this description. The charter of incorporation not only creates it, but gives it every faculty which it possesses. The power to acquire rights of any description, to transact business of any description, to sue on those contracts, is given and measured by its charter, and that charter is a law of the United States. This being can acquire no right, make no contract, bring no suit, which is not authorized by a law of the United States. It is not only itself the mere creature of a law, but all its actions and all its rights are dependent on the same law. Can a being thus constituted have a case which does not arise literally, as well as substantially, under the law?

"Take the case of a contract, which is put as the strongest against the Bank.

"When a bank sues, the first question which presents itself,