THIS was a writ of error to the court of appeals of the state of Virginia, founded upon the refusal of that court to obey the mandate of this court, requiring the judgment rendered in this same cause, at February term, 1813, to be carried into due execution. The following is the judgment of the court of appeals, rendered on the mandate: 'The court is unanimously of opinion that the appellate power of the supreme court of the United States does not extend to this court under a sound construction of the constitution of the United States; that so much of the 25th section of the act of congress, to establish the judicial courts of the United States, as extends the appellate jurisdiction of the supreme court to this court, is not in pursuance of the constitution of the United States. That the writ of error in this cause was improvidently allowed under the authority of that act; that the proceedings thereon in the supreme court were coram non judice in relation to this court, and that obedience to its mandate be declined by the court.'
The original suit was an action of ejectment, brought by the defendant in error, in one of the district courts of Virginia, holden at Winchester, for the recovery of a parcel of land, situate within that tract, called the northern neck of Virginia, and part and parcel thereof. A declaration in ejectment was served (April, 1791) on the tenants in possession; whereupon Denny Fairfax, (late Denny Martin,) a British subject, holding the land in question, under the devise of the late Thomas Lord Fairfax, was admitted to defend the suit, and plead the general issue, upon the usual terms of confessing lease, entry, and ouster, &c., and agreeing to insist, at the trial, on the title only, &c. The facts being settled in the form of a case agreed to be taken and considered as a special verdict, the court, on consideration thereof, gave judgment (24th of April, 1794) in favour of the defendant in ejectment. From that judgment the plaintiff in ejectment (now defendant in error) appealed to the court of appeals, being the highest court of law of Virginia. At April term, 1810, the court of appeals reversed the judgment of the district court, and gave judgment for the then appellant, now defendant in error, and thereupon the case was removed into this court.
State of the facts as settled by the case agreed.
1st. The title of the late Lord Fairfax to all that entire territory and tract of land, called the Northern Neck of Virginia, the nature of his estate in the same, as he inherited it, and the purport of the several charters and grants from the kings Charles II. and James II., under which his ancestor held, are agreed to be truly recited in an act of the assembly of Virginia, passed in the year 1736, [Vide Rev. Code, v. 1. ch. 3. p. 5.] 'For the confirming and better securing the titles to lands in the Northern Neck, held under the Rt. Hon. Thomas Lord Fairfax,' &c.
From the recitals of the act, it appears that the first letters patent (1 Car. II.) granting the land in question to Ralph Lord Hopton and others, being surrendered, in order to have the grant renewed, with alterations, the Earl of St. Albans and others (partly survivors of, and partly purchasers under, the first patentees) obtained new letters patent (2 Car. II.) for the same land and appurtenances, and by the same description, but with additional privileges and reservatinos, &c.
The estate granted is described to be, 'All that entire tract, territory, or parcel of land, situate, &c., and bounded by, and within the heads of, the rivers Tappahannock, &c., together with the rivers themselves, and all the islands, &c., and all woods, underwoods, timber, &c., mines of gold and silver, lead, tin, &c., and quarries of stone and coal, &c., to have, hold, and enjoy the said tract of land, &c. to the said [patentees,] their heirs and assigns for ever, to their only use and behoof, and to no other use, intent, or purpose whatsoever.'
There is reserved to the crown the annual rent of 6l. 13s. 4d. 'in lieu of all services and demands whatsoever;' also one-fifth part of all gold, and one-tenth part of all silver mines.
To the absolute title and seisin in fee of the land and its appurtenance, and the beneficial use and enjoyment of the same, assured to the patentees, as tenants in capite, by the most direct and abundant terms of conveyancing, there are superadded certain collateral powers of baronial dominion; reserving, however, to the governor, council and assembly of Virginia, the exclusive authority in all the military concerns of the granted territory, and the power to impose taxes on the persons and property of its inhabitants for the public and common defence of the colony, as well as a general jurisdiction over the patentees, their heirs and assigns, and all other inhabitants of the said territory.
In the enumeration of privileges specifically granted to the patentees, their heirs and assigns, is that 'freely and without molestation of the king, to give, grant, or by any ways or means, sell or alien all and singular the granted premises, and every part and parcel thereof, to any person or persons being willing to contract for, or buy, the same.'
There is also a condition to avoid the grant, as to so much of the granted premises as should not be possessed, inhabited, or planted, by the means or procurement of the patentees, their heirs or assigns, in the space of 21 years.
The third and last of the letters patent referred to, (4 Jac. II.,) after reciting a sale and conveyance of the granted premises by the former patentees, to Thomas Lord Culpepper, 'who was thereby become sole owner and proprietor thereof, in fee simple,' proceeds to confirm the same to Lord Culpepper, in fee simple, and to release him from the said condition, for having the lands inhabited or planted as aforesaid.
The said act of assembly then recites, that Thomas Lord Fairfax, heir at law of Lord Culpepper, had become 'sole proprietor of the said territory, with the appurtenances, and the above-recited letters patent.'
By another act of assembly, passed in the year 1748, (Rev. Code, v. 1. ch. 4. p. 10.,) certain grants from the crown, made while the exact boundaries of the Northern Neck were doubtful, for lands which proved to be within those boundaries, as then recently settled and determined, were, with the express consent of Lord Fairfax, confirmed to the grantees; to be held, nevertheless, of him, and all the rents, services, profits, and emoluments, (reserved by such grants,) to be paid and performed to him.
In another act of assembly, passed May, 1779, for establishing a land office, and ascertaining the terms and manner of granting waste and unappropriated lands, there is the following clause, viz. (vide Chy. Rev. of 1783, ch. 13. s. 6. p. 98.) 'And that the proprietors of land within this commonwealth may no longer be subject to any servile, feudal, or precarious tenure, and to prevent the danger to a free state from perpetual revenue, be it enacted, that the royal mines, quit-rents, and all other reservations and conditions in the patents or grants of land from the crown of England, under the former government, shall be, and are hereby declared null and void; and that all lands thereby respectively granted shall be held in absolute and unconditional property, to all intents and purposes whatsoever, in the same manner with the lands hereafter granted by the commonwealth, by virtue of this act.'
2d. As respects the actual exercise of his proprietary rights by Lord Fairfax.
It is agreed that he did, in the year 1748, open and conduct, at his own expense, an office within the Northern Neck, for granting and conveying what he described and called, the waste and ungranted lands therein, upon certain terms, and according to certain rules by him established and published; that he did, from time to time, grant parcels of such lands in fee; (the deeds being registered at his said office, in books kept for that purpose, by his own clerks and agents;) that, according to the uniform tenor of such grants, he did, styling himself proprietor of the Northern Neck, &c., in consideration of a certain composition to him paid, and of certain annual rents therein reserved, grant, &c.; with a clause of reentry for non-payment of the rent, & c.; that he also demised, for lives and terms of years, parcels of the same description of lands, also reserving annual rents; that he kept his said office open for the purposes aforesaid, from the year 1748 till his death, in December, 1781; during the whole of which period, and before, he exercised the right of granting in fee, and demising for lives and terms of years, as aforesaid, and received and enjoyed the rents annually, as they accrued, as well under the grants in fee, as under the leases for lives and years. It is also agreed that Lord Fairfax died seised of lands in the Northern Neck, equal to about 300,000 acres, which had been granted by him in fee, to one T. B. Martin, upon the same terms and conditions, and in the same form, as the other grants in fee before described; which lands were, soon after being so granted, reconveyed to Lord Fairfax in fee.
3d. Lord Fairfax, being a citizen and inhabitant of Virginia, died in the month of December, 1781, and, by his last will and testament, duly made and published, devised the whole of his lands, &c., called, or known by the name of the Northern Neck of Virginia, in fee, to Denny Fairfax, (the original defendant in ejectment,) by the name and description of the Reverend Denny Martin, &c., upon condition of his taking the name and arms of Fairfax, &c.; and it is admitted that he fully complied with the conditions of the devise.
4th. It is agreed that Denny Fairfax, the devisee, was a native-born British subject, and never became a citizen of the United States, nor any one of them, but always resided in England, as well during the revolutionary war as from his birth, about the year 1750, to his death, which happened some time between the years 1796 and 1803, as appears from the record of the proceedings in the court of appeals.
It is also admitted that Lord Fairfax left, at his death, a nephew named Thomas Bryan Martin, who was always a citizen of Virginia, being the younger brother of the said devisee, and the second son of a sister of the said Lord Fairfax; which sister was still living, and had always been a British subject.
5th. The land demanded by this ejectment being agreed to be part and parcel of the said territory and tract of land, called the Northern Neck, and to be a part of that description of lands, within the Northern Neck, called and described by Lord Fairfax as 'waste and ungranted,' and being also agreed never to have been escheated and seised into the hands of the commonwealth of Virginia, pursuant to certain acts of assembly concerning escheators, and never to have been the subject of any inquest of office, was contained and included in a certain patent, bearing date the 30th of April, 1789, under the hand of the then governor, and the seal of the commonwealth of Virginia, purporting that the land in question is granted by the said commonwealth unto David Hunter (the lessor of the plaintiff in ejectment) and his heirs forever, by virtue and in consideration of a land office treasury warrant, issued the 23d of January, 1788. The said lessor of the plaintiff in ejectment is, and always has been, a citizen of Virginia; and in pursuance of his said patent, entered into the land in question, and was thereof possessed, prior to the institution of the said action of ejectment.
6th. The definitive treaty of peace concluded in the year 1783, and the treaty of amity, commerce, and navigation, of 1794, between the United States of America and Great Britain, and also the several acts of the assembly of Virginia, concerning the premises, are referred to, as making a part of the case agreed.
Upon this state of facts, the judgment of the court of appeals of Virginia was reversed by this court, at February term, 1813, and thereupon the mandate above mentioned was issued to the court of appeals, which being disobeyed, the cause was again brought before this court.
Jones, for the plaintiffs in error. There are two questions in the cause, 1st. Whether this court has jurisdiction? 2d. Whether it has been rightly exercised in the present case?-1. Cotemporaneous construction, and the uniform practice since the constitution was adopted, confirms the jurisdiction of the court. The authority of all the popular writers who were friendly to it, is to the same effect; and the letters of Publius show that it was agreed, both by its friends and foes, that the judiciary power extends to this class of cases. In the conventions, by which the constitution was adopted, it was never denied by its friends that its powers extended as far as its enemies alleged. It was admitted, and justified as expedient and necessary. Ascending from these popular and parliamentary authorities, to the more judicial evidence of what is the supreme law of the land, we find a concurrence of opinion. This government is not a mere confederacy, like the Grecian leagues, or the Germanic constitution, or the old continental confederation. In its legislative, executive, and judicial authorities, it is a national government, to every purpose, within the scope of the objects enumerated in the constitution. Its judicial authority is analagous to its legislative: it alone has the power of making treaties; those treaties are declared to be the law of the land; and the judiciary of the United States is exclusively vested with the power of construing them. The second section, article third, of the constitution provides, that the judicial power 'shall extend to all cases in law or equity, arising under this constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority,' &c. The word shall, is a sign of the future tense, and implies an imperative mandate, obligatory upon those to whom it is addressed. The verb extend, is said to mean nothing more than may extend; but the neuter verb, and not the verb active, is used, and imports that the power shall extend-it shall reach to, or over. 'All cases,' is an emphatic expression, and shows that it cannot extend to a limited number of cases. The state legislatures cannot make treaties. Why should the state judicatures be offended at being excluded from the authority of expounding them? 2. Has congress exercised the power vested in it according to the constitution? If the jurisdiction be exclusive and paramount, it must be exercised according to the discretion of congress, the constitution having prescribed no specific mode; it must operate upon the people of the United States in their personal and aggregate capacities, upon them and all their magistrates and tribunals. Congress must establish a supreme court. They may establish inferior courts. The supreme court must have the appellate jurisdiction vested in them by the constitution, and congress cannot denude them of it, by failing to establish inferior tribunals. Those tribunals may not exist; and, therefore, the appellate jurisdiction must extend beyond appeals from the courts of the United States only. The state courts are to adjudicate under the supreme law of the land, as a rule binding upon them. They do not act upon it as judges determining by a foreign law, in a case of lex loci, for example; they act upon it as a municipal law of the state where they sit, but derived from the government of the United States. 3. As to the remedy of the plaintiffs in error. This court is not limited to a mandate as the only remedy. The judiciary act provides, (section 24.,) that when a cause has been once remanded, this court may award a writ of execution upon its own judgment. The cause is now before the court, so as to enable it to do this; the record is well certified, according to the law and practice of Virginia, and of every other state, under the seal of the court and signature of the clerk. Even supposing it necessary to take a retrospective view, and look at the former record, it originated, and still remains, in this forum, and it is unnecessary to send to the court of appeals for it.
Tucker, contra. 1. At common law the writ of error must be returned by the court itself. It is imperfect in this case, and, therefore we have a right to a certiorari, or writ of diminution. But there is no error; the court of appeals have done nothing; and, therefore, there is no error in their proceedings. It is a mere omission to do what they ought to have done, and no judgment can be rendered here to reverse what they have not done. This court cannot award execution upon the judgment in the original cause. That judgment is final; it is functus officio, and nothing more can be done with it. The original cause is not brought here again completely, and, therefore, the provision in the 24th section of the judiciary act does not apply. 2. Is the judiciary act constitutional? This court, undoubtedly, has all the incidental powers necessary to carry into effect the powers expressly given by the constitution. But this cannot extend to the exercise of any power inconsistent with the whole genius, spirit, and tenor of the constitution. Neither the practice and acquiescence under it, nor cotemporaneous expositions can apply, because they are contradictory. State courts have refused to execute the penal laws of the United States, and the court of appeals ground themselves on the resolutions of the Virginia legislature in 1798; but this court will disregard these controversial political party works. The chief defect of the former confederation was, that it acted on political, and not on natural, persons. The whole scheme of the constitution aims at acting on the citizens of the United States at large, and not on the state authorities. The philological criticism upon the third article is unsound. Shall is merely a sign of the future tense, and not imperative; the laws of the United States having, in some instances, given conjoint jurisdiction to the state courts, and upon that argument must be unconstitutional. 'Extend,' or 'shall extend,' merely imports that it may extend. Congress are bound to establish tribunals inferior to the supreme court. How else are crimes against the United States to be punished, since the supreme court have not original jurisdiction of these cases? The state courts are bound by treaties as a part of the supreme law of the land, and they must construe them in order to obey them. The only constitutional method of giving and greater effect to the supremacy of treaties, would have been by enabling the parties claiming under them to sue in the national courts. 3. There are three classes of cases enumerated at of appellate jurisdiction: that of treaties only applies to this case; but in this case the British treaty was not principally, only incidentally, in question. It does not appear upon the face of the record that the judgment was upon the treaty: It was not upon the treaty; the court of appeals, in their judgment, have expressly declared that it was not upon the treaty, by affirming that part of the judgment of the district court at Winchester which determined in favour of the treaty.
Dexter, on the same side. Every advocate is a citizen, and, on great constitutional questions, his duty to his client does not require him to conceal any opinion he may have formed. This cause may be safely carried through, without falsifying the true exposition of the constitution. Believing that it is essential to the national welfare that congress should have the right of arming the courts of the United States with every authority necessary to give complete effect to the judicial powers granted by the constitution, I dissent from the court of appeals of Virginia, when they deny that the appellate jurisdiction of the national tribunals extends to cases involving the construction and validity of treaties. But the question is, has congress provided an adequate method of exercising it? 1. Before a writ of error goes from this court to a state court, it must appear on the face of the record, 1st. That the construction or validity of a treaty is drawn in question. 2d. That the title or claim supposed to be infringed was specially set up or demanded by the party. 3d. That the state court did decide respecting the title or claim under the treaty. In the present instance, suppose that there had been no case made, and that all the facts stated had been given in evidence, and a general verdict rendered thereon: the case is precisely in that predicament. The determination of the court was not limited, in any degree, to the construction of a treaty, which was only one of the numerous facts stated on which the title of the parties depended. How can this court ascertain on which of these facts the state court determined, or that it determined upon the treaty? The alienage of Lord Fairfax's devisee, and the question whether the lands did not escheat without office found, might have been the point of decision, avoiding to consider the construction or validity of the treaty, which applies only to things confiscable. Congress have not said that this court shall determine conjecturally, but that the party shall specially set up his claim on the record, in order to see whether a treaty has been infringed. He may plead the matter specially, or except to the opinion of the court; but if he chose to make an agreed case in the most general way, is this court to amend the defects of his proceeding? 2. As to the constitutionality of the judiciary act. It is agreed that the judicial powers granted by the constitution are exclusive, or exclusive in the election of congress; but that any appellate jurisdiction is given by the constitution is what I deny. It is neither expressed nor implied; nor is there any necessity for it: for these suits might be removed from the state courts, as are suits commenced by foreigners and citizens of different states, in the first instance, or in the moment any question touching a treaty arose, instead of being brought up by the offensive mode of a writ of error, directed to a court which is as supreme in its appropriate sphere as this court. Whether the court where the suit is commenced will, or will not, consent; the national court may take jurisdiction. If the state court pertinaciously proceeds, notwithstanding; its proceedings would be coram non judice. The original and the appellate jurisdiction are opposed to each other by the constitution. The first cannot regard the state courts; nor the latter: for it is only the residuum of the mass of power before given, which does not expressly include appeals from the state courts. Why is it to be supposed that the state courts will exercise any part of that mass of power? There is no necessity for it, since the laws might provide a constitutional mode of excluding them. If they have not provided such a mode, it is not for this court to supply the defect. By attempting it, they will begin a conflict between the national and state authorities that may ultimately involve both in one common ruin. The taper of judicial discord may become the torch of civil war, and though the breath of a judge can extinguish the first, the wisdom of the statesman may not quench the latter. I lament that the courts of so patriotic a state as Virginia have denied the complete and exclusive dominion of the national government over the whole surface of the judicial power granted by the people to that government. 'JOIN OR DIE,' was the word when we were represented as a disjointed serpent, of which Virginia was the head. From that head sprung our 'immortal chief,' armed with the aegis of wisdom. But that great man, and those who advised him, improvidently assented to a law, (the judiciary act,) which is neither constitutionally nor politically adapted to enforce the powers of the national courts in an amicable and pacific manner. I have never feared that this government was too strong: I have always feared it was not strong enough. I have long inclined to the belief, that the centrifugal force was greater than the centripetal. The danger is, not that we shall fall into the sun, but that we may fly off in eccentric orbits, and never return to our perihelion. But though I will struggle to preserve all the constitutional powers of the national government, I will not strain and break the constitution itself, in order to assert them; there is danger too on that side. The poet describes the temple of Fame as situated on a mountain covered with ice. The palaces of power are on the same frail foundation; the foot of adventurous ambition often slips in the ascent, and sometimes the volcano bursts, and inundates with its lava the surrounding country. But I fear not that this court will be wanting in the firmness which becomes its station; and if it believes that it may, constitutionally, and legally, exert its powers upon the state courts, in this form, (which is what I deny,) it will not regard consequences in the exercise of its duty: it will say, with another august tribunal, Fiat justitia, ruat caelum!
Jones, in reply. The states are deprived, by the constitution, of the character of perfect states, as defined by jurists; they are still sovereign, sub modo; but the national government pervades all their territory, and acts upon all their citizens. The state judicatures are essentially incompetent to pronounce what is the law; not in the limited sphere of their territorial jurisdiction, but throughout the union and the world. The constitution, art. 3., sec. 2., has distinguished between the causes properly national, and 'controversies' which it was thought expedient vest in the courts of the United States. The judiciary act covers the first completely, the last only partially. It is said the doctrine contended for involves the old anomaly of the national government, acting, not on individuals, but on state authorities; but this government must act in this manner by appeal from the state courts, or it cannot act at all. If you have an appellate jurisdiction, their judgment is your judgment. You may execute this your judgment; you need not remand the cause to the state court. These are mere arbitrary forms, which the court may discard, or adopt, at pleasure. Neither is it necessary to send a writ of error to the state court; you may cite the parties themselves to appear in your forum, as soon as a question touching a treaty arises. There is no necessary connection between an appellate tribunal and the court appealed from; it is sufficient that the parties have originally litigated before the court of first instance. The house of lords, an English common law court, holds appeals from the court of sessions, in Scotland, a civil law tribunal. The union between that country and England is similar to our federative constitution. In whatever mode the appellate jurisdiction may be exercised, it is still liable to the difficulties suggested. The process by which a cause is to be removed from the state court, before judgment, must be addressed to that court; and if it still proceeds, the remedy must be as offensive as at present. But it would, also, be ineffectual and dilatory. Suppose, in a case of original jurisdiction, an ambassador prosecuted for a supposed crime in a state court, he might be imprisoned, or put to death, before the national authority could be interposed, unless it act directly on the state judicature. In this case, the court may act directly on the cause and the parties, in order to carry into complete effect the appellate powars with which it is invested by the constitution and laws. There is nothing in the record importing that the court of appeals determined on the ground of the party's title merely. Nor is it necessary that the treaty, under which that title is set up, should be specified in a bill of exceptions, or propounded in argument. It is sufficient that the claim is stated upon the record, and that the title depends upon the treaty. This court is not to pronounce a mere abstract opinion upon the validity, or construction, of the treaty; it may, therefore, decide on other incidental matters; and, if the party has a good title under the treaty, it is to enforce and protect that title. As to the sufficiency of the return, the law merely requires a transcript of the record to be removed, and, by the rules of this court, a return by the clerk is sufficient.
STORY, J., delivered the opinion of the court.