since 1869) the court consists of the chief justice and eight associate justices, any six of whom constitute a quorum. It will be remembered that the members of the Supreme Court also serve as circuit justices. It is to be noted that the Supreme Court is the only court established by the Constitution itself, the other federal courts being established by Congress.

There is one regular term of the court annually, which commences on the first Monday in October, and such adjourned or special terms as it may find necessary for the dispatch of business.2

The provisions relating to the Supreme Court constitute Chapter X of the Judicial Code.

§ 61. Jurisdiction-In general. The first section of Article III of the Constitution provides 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." The first clause of the second section enumerates the cases to which the judicial power shall extend, and the second clause provides 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."

This second clause does not profess to confer any jurisdiction upon the Supreme Court, but simply to distribute the jurisdiction conferred and defined by the

2-The first term of the court was held in New York, then the seat of the Federal Government, in Febru ary, 1790. There were no litigants until the August term, 1791, the first reported case being West v.

Barnes, 2 Dall. 401. The first case in which a formal opinion was rendered was State of Georgia v. Brailsford, 2 Dall. 402 (August, 1792), in which all six judges wrote individual opinions.

preceding clauses. The original and appellate jurisdiction thus distributed extends only to cases within the federal power as already defined.3

The Supreme Court has always scrupulously declined to exercise jurisdiction not conferred upon it. It has always acted upon the principle impressively stated by Chief Justice Marshall in 18095 that, "The duties of this court to exercise jurisdiction where it is conferred, and not to usurp it where it is not conferred, are of equal obligation."

§ 62. Original jurisdiction. In the section of the Constitution just quoted it is provided 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." There are, therefore, two classes of cases to which the original jurisdiction of the Supreme Court extends. No cases affecting ambassadors, etc., have yet been brought in the Supreme Court,' and hence only cases in which a state is a party have been of practical importance. Many such cases have been brought originally in the Supreme Court, most of these being suits between two states. The jurisdiction includes also suits between the United States and

3-Pennsylvania V. Quicksilver Co., 10 Wall. 553. In this case it was held that the Supreme Court has no original jurisdiction of a suit by a state against one of its own citizens.

4-For instances in which the Supreme Court declined to exercise jurisdiction see Marbury v. Madison, 1 Cranch 137; Gordon v. United States, 2 Wall. 561, 117 U. S. 697; In re Sanborn, 148 U. S. 222; Muskrat v. United States, 219 U. S. 346.

5 Bank of the United States v. Deveaux, 5 Cranch 61, 87.

8

6-Art. III, § 2. See annotations in 9 Fed. St. Ann. 117-123.

With reference to the original jurisdiction of the Supreme Court, Fuller, C. J., said: "The jurisdiction is limited, and is manifestly intended to be sparingly exercised, and should not be expanded by construction.'' California v. Southern Pacific Co., 157 U. S. 229.

7-See, in this connection, United States v. Ortega, 11 Wheat. 467; In re Baiz, 135 U. S. 403.

8-See ante, § 29.

a state, and suits by a state against a citizen of another state,10 but not against one of its own citizens, since such suits are not within the federal judicial power,11 nor, since the Eleventh Amendment, suits against a state by a citizen of another state. The original jurisdiction of the court is not dependent upon the amount in controversy, nor upon the subject matter of the suit.

Congress can neither enlarge nor restrict the original jurisdiction conferred by this section; but it can make that jurisdiction exclusive, or vest it concurrently in the inferior federal courts.12 The inability of Congress to enlarge or restrict the original jurisdiction results from the fact that the jurisdiction is fixed by the Constitution itself, while its power to grant to or withhold from the inferior courts the same jurisdiction, is a necessary consequence of the complete control of Congress over the inferior courts. The first proposition was established in the famous case of Marbury v. Madison, in which it was held that the provision of the 13th section of the Judiciary Act that "The Supreme Court shall have to issue 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," 13 was void in so far as it purported to authorize an original suit in the Supreme Court for mandamus against a public officer of the United States. 14 The court held that the language of the Constitution in distributing the original and appellate jurisdiction

power

9-United States v. Texas, 143 U. S. 621.

10-Florida v. Anderson, 91 U. S. 667. For limitations on this jurisdiction, see Wisconsin v. Pelican Ins. Co., 127 U. S. 265.

11-Pennsylvania v. Quicksilver Co., 10 Wall. 553; California v. Southern Pacific Co., 157 U. S. 229. 12-Marbury v. Madison, 1 Cranch 137; Cohens v. Virginia, 6 Wheat.

264; Ames v. Kansas, 111 U. S. 449.

13-1 Stat. L. 81.

14-Marbury v. Madison, 1 Cranch 137. In this case the facts were as follows: One Marbury had been appointed by President Adams, just before the expiration of his term of office, a justice of the peace for the county of Washington in the District of Columbia. Marbury's

of the Supreme Court limited its original jurisdiction to the two classes of cases enumerated, and that Congress had no power to make a different distribution by adding other cases to the original jurisdiction.

This is the first case in which the Supreme Court held an act of Congress unconstitutional, and the only case during the term of Chief Justice Marshall,15 and it should be noted that in this case, so far from grasping at power, the Supreme Court declined to exercise jurisdiction which Congress sought to confer upon it. And if the Supreme Court had failed to do its duty to obey the Constitution rather than an act of Congress, the Constitution could not long have survived, for, as pointed out by Marshall with "remorseless logic," 16 unless the Constitution is superior to the legislative power, "then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable."

But while the Supreme Court has no original jurisdiction in a technical sense to issue writs of mandamus,

commission had been fully executed but had not been issued to him when Jefferson succeeded to the presidency. James Madison, Jefferson's Secretary of State, refused to deliver the commission, and Marbury sued in the Supreme Court for a mandamus to compel Madison to deliver it. The court held that it was without jurisdiction to issue the writ. Properly, the court should have passed upon the question of jurisdiction first, and having decided that it had no jurisdiction, should not have considered the merits of the case, but Marshall did not take up the question of jurisdiction until he had, in an elaborate opinion, determined the case on its merits in favor of Marbury and against Jefferson's administration, to which he was politically hostile. This was

a violation of the judicial proprieties, and that part of the opinion which relates to the merits of the case, though since recognized as a correct statement of the law, was mere dictum. That portion of the opinion which passes upon the constitutionality of the statute was necessary to the decision of the case, but some critics of the case have confused the two portions of the opinion and declared that the decision that the statute was unconstitutional was a dictum, which, of course, is not true. The political features of this case form an interesting study in American history.

15-The next case was Gordon v. United States, 2 Wall. 561, 117 U. S. 697, decided in 1865.

16-Carson, History of Supreme Court, 205.

habeas corpus, and the like, such writs are not infrequently issued by this court to inferior federal courts in proceedings designated "original," but which are really an exercise of appellate jurisdiction over the inferior courts.17

Congress may prescribe the mode of procedure in cases brought originally in the Supreme Court, but in the absence of any legislation by Congress on the subject, the court may make its own rules.18 And in the case of suits between states, in view of the dignity of the parties and the importance of the questions usually involved, the court will not necessarily apply the ordinary rules of legal procedure applicable to suits between private individuals.19

§ 63. Exclusive original jurisdiction. Congress has provided 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 or between a state and citizens of other states, or aliens, in which latter cases it shall have original, but not exclusive, jurisdiction. And it 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 consistently with the law of nations; and original, but not exclusive, jurisdiction of all suits brought by ambassadors, or

17-U. S. Rev. St., § 688, 4 Fed. St. Ann. 439; Ex parte Bollman, 4 Cranch 75 (habeas corpus); Virginia v. Rives, 100 U. S. 313 (mandamus); Ex parte Virginia, 100 U. S. 339 (habeas corpus).

Except in cases affecting ambassadors, other public ministers, or consuls, or those in which a state is a party, the Supreme Court cannot

issue a writ of habeas corpus except under its appellate jurisdiction. Ex parte Hung Hang, 103 U. S. 552.

18-Florida v. Georgia, 17 How. 478. See also, Kentucky v. Dennison, 24 How. 66; California v. Southern Pacific Co., 157 U. S. 229. 19-Virginia v. West Virginia, 234 U. S. 117.