Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1821-06-01
RICHMOND, JUNE /, 1871.
FOR THE ENQUIRER.
ON THE LOTTERY RECESSION.
No. 5.
re lhe People of re URitek .Sfates.

III IT'S OTtsS'it0t character, as TO this case be-
tween state and one of its own citizens, bv
the specification contained in the third arti-
Gle OF the constitution, ofthe cases in which
a jurisdiction was granted to the federal
courts, over the several states, seeks TO RENE
dy the deficiency. 1t seeks To supply the
want of such specification, as to this case.
and 10 give tue court jurisdiction of it on its
appellate side, under the general phrase con-
tanned in that clause, which extends The in
dicial power, to ali cases arising under the
constitution and laws, oft the United States."--
The first remark have TO make upon this
position, is, that if a jurisdiction in this very
delicate case, between state and its own CT
tlzens, had been intended to be given, when,
certainly, there existed no necessity for it,
the specification in that article, would have
been expressly enlarged, so rs to embrace it.
Another remark is, that il is not natural
construction, to reach case, by the appel
late jurisdiction the court, which was With
held from If, in its original character
difficulty is encreased, by having to step over
the barrier erected between the two govern
ments, and to.correct the Judgments render
cd III another government. The general
words IN question presupposc cases, in which
there are proper parties, and, also, il brought
up by way ofappeal, that they should come
from proper court. These general words
may be, otherwise, abuudantly satisfied, and
lrepeat the remark, that they are not there
fore to be extended TO eases surrounded, on
all sites. with insurmountablc difficulties
The court says, that these general words give
an appellate jurisdiction, "whoever NAV be
the parties" hut in order to reach this case.
they must add the words, cor from what
ever court, whether of the Union, or of a par
llcuIar state, the cause NAV have been
brought up" The proposition is laid down
infinitely too large, by the court, and it is
certainly not true, if at all, to the extent to
which they have carried it. That high court,
useN, would not, presume, entertain an APP
peai IN casein which they themselves were
parties, nor a case in which, the Emperor of
Russia, sued in the person of his ambassador
was party. Nor would il, | apprchend.
entertain an appeal brought into IL from one
OF the courts, of the Russian Empire, even
although the constitution of the United States
had, therein, come in question. 1t is entirely
a new idea, that persons may be legal par
ties, or otherwise, and a jurisdiction of the
case entertained, or not, according to tlac
dignity of the laws or documents, under
which they claim. That is entirely poste
rior enquiry. These documents or laws are
never looked at. or considered, until the ques-
ton of parties is disposed of The question
oil parties IS a matter III abatement, and ques-
uonable III the first instances those which a.
rise under the constitution, SC, are matters
III bar, and are reserved for Il poste.ior cnat1-
ry. The only way of getting over these diff
iiculties, is, TO understand this general provi-
sion, 1T applies at all, as at least recurring
proper and legal pan ties, and that the appeal
should come from the proper court.
This indifference as TO the proper and le-
gal parties, in Il court of justice, seems an
entire anomaly in the history ofjudciaI pro-
ceedings. II is novelty even in the supreme
court ITSELF Many cases may be found, in
which causes have been stricken from the
docket of that court, for want of proper and
legal parties. In the case of Emory V. Gree
nou5h (G) cause was struck oil the docket,
because the parties were not sheSn 10 he CT
izens of-diilerent states. So in the case of
Wise against the Columbia Turnpike nj it
was held that the supreme court had no iu-
rsdIcton Ill the case, because the sum award
ed was under five hundred dollars. Again
1T has been held in the supreme court, that
no writ OF error lies TO it, from the general
court OF the North Western territory. (cJ-
These cases abundantly shew, that, in for
mer times, that court not only required the
''Se'f'S"iS Heli lto w XIV IL nliI
also that the sum should be sufficient, and that
the appeal should come from a proper
court-As in The case before us two of these
essential ingredients have been dispensed
with, DO not see how we can sickle for
the third. see nothing TO impede this high
court, under the latitude they have taken
from entertaining an appeal, where the a
mount of the judgment is only fifty dollars
Having passed the Rubicon, as to the parties
and the court, they may well go thus far. II
IS only extending their power another grade,
by this most remote and distant implication.
The court proceeds to say, that the clause
aforesaid extends its appellate jurisdiction, to
all the cases described, without making in its
terms, any exception" whatsoever, in rela-
ton to the condition of the party, and that
such exception" is not to be implied, a
gainst the "express words" Of the article.
what these express words meat, and how
they ought TO be deemed to be restricted, |
have already endeavored to shew. They
preslppose all necessary parties to- the suit,
and hence an exception becomes unneces-
5ary. 1t was not necessary to make an ex-
ceptlOn from grant, which, as to the point
before us, in fact carried nothing.
The supreme court admits that the specif-
cation, IN the second section of the third ar
ticlc of the constitution, does not extend to
t'lis case of a contest between a state and
ITS own citizens nor can an appellate juris-
diction be fairly inferred. Ifthe jurisdiction,
either original or appellate, had been intend
ed to have been given, in this delicate case,
would it not have been provided for, and hat
IN the first instance The omission of this
stronger or superior case, shews that it was
not intended to be given, under the undoubt-
cd rule OF construction have adyerted TO.
" a cause of this kind is excluded from the
original Jurisdiction of the court, it can de-
rive no AID from matter which only arises
IN ITS progress, and on the merits. II is alto
gcther casual and contingent even upon the
showing of the court itself, whetherthe cause