Court in Cases THE entire judicial power of the United States, created by the Constitu- Supreme tion, is not only extended to all cases in law and equity arising under the Functions Constitution, the laws of the United States, and treaties made or which shall Only be made under their authority; but its exercise depends on the nature of a case in law or equity of the kind specified, inasmuch as there is no way of obtaining the opinion of Federal courts and of their judges upon the Constitution, law or equity, unless a specific case comes before them in litigation. by parties claiming a right under the provisions of one or other of these sources. The individual is protected against unlawful action on the part of a fellow-citizen, a State of the Union, or the Government of that Union; the rights of the individual States are guarded against the encroachment of the Government of the United States, or in controversies between themselves, by a case in law or equity begun in the courts. The Government of the United States is protected against the unlawful conduct of the individual and assaults of the States by a case in law or equity, submitted to the courts for their consideration and decision. The threefold division of power among the departments of that Government is maintained by the simple expedient of a case in law or equity, differing, indeed, in purpose; modified, it may be, in form, but identical in substance with the case in law or equity of a private suitor. For if jurisdiction depends upon a case, a suit or controversy, it is necessary to determine at the very threshold the sense in which the word case, suit or controversy is used in connection with the judicial power. For if the matter is not a case, suit or controversy, falling within the proper exercise of this power, there is nothing whereof the court can take jurisdiction, and there is nothing to be decided. If we are, as so often stated, a government of laws, not of men, it is the court which interprets the laws, passes upon the conduct of men, and stays the hand of government itself if only a case arise under the Constitution, the laws and treaties of the United States, and come before courts of justice in the ordinary form of case, suit, or controversy, in law or equity. In the leading case of Marbury v. Madison (1 Cranch, 137), decided in 1803, in which John Marshall, as Chief Justice, first disclosed to the bench and bar his capacity as a judge, he defined a case to be a suit instituted according to the regular course of judicial procedure. In two later cases he "Case " Defined "Suit " Defined either had or took occasion to go into the details of a case, to analyze and to state its essentials in terms which his successors have been content to repeat and to follow. In Cohens v. Virginia (6 Wheaton, 264, 379), decided in 1821, the Chief Justice said: A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the constitution or a law of the United States, whenever its correct decision depends on the construction of either. In a later passage of his opinion (405), he adds: The article does not extend the judicial power to every violation of the constitution which may possibly take place, but to "a case in law or equity," in which a right, under such law, is asserted in a court of justice. If the question cannot be brought into a court, then there is no case in law or equity, and no jurisdiction is given by the words of the article. But if, in any controversy depending in a court, the cause should depend on the validity of such a law, that would be a case arising under the constitution, to which the judicial power of the United States would extend. And, immediately following this passage, the Chief Justice takes up and defines the term suit, used in the 11th Amendment apparently synonymous with case, stating not only the nature of a suit, but how and when it begins: What is a suit? We understand it to be the prosecution or pursuit of some claim, demand or request; in law language, it is the prosecution of some demand in a Court of justice. The remedy for every species of wrong is, says Judge Blackstone," the being put in possession of that right whereof the party injured is deprived." "The instruments whereby this remedy is obtained, are a diversity of suits and actions, which are defined by the Mirror, to be the lawful demand of one's right;' or, as Bracton and Fleta express it, in the words of Justinian, 'jus prosequendi in judicio quod alicui debetur.'" Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party suing claims to obtain something to which he has a right. To commence a suit is to demand something by the institution of process in a Court of justice; and to prosecute the suit, is, according to the common acceptation of language, to continue that demand. By a suit commenced by an individual against a State, we should understand process sued out by that individual against the State, for the purpose of establishing some claim against it by the judgment of a court; and the prosecution of that suit is its continuance. Whatever may be the stages of its progress, the actor is still the same.1 Finally, in Osborn v. Bank of the United States (9 Wheaton, 737, 819), decided in 1824, the same Chief Justice, recurring to this question, thus discussed it in its larger as well as in its technical bearings: 16 Wheaton, 407-8. It is said, that the legislative, executive and judicial powers of every well-constructed government, are co-extensive with each other; that is, they are potentially co-extensive. The executive department may constitutionally execute every law which the legislature may constitutionally make, and the judicial department may receive from the legislature the power of construing every such law. All governments which are not extremely defective in their organization, must possess, within themselves, the means of expounding, as well as enforcing, their own laws. If we examine the constitution of the United States, we find, that its framers kept this great political principle in view. The 2d article vests the whole executive power in the president; and the 3d article declares, "that the judicial power shall extend 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." This clause enables the judicial department to receive jurisdiction to the full extent of the constitution, laws and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on 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 the constitution declares, that the judicial power shall extend to all cases arising under the constitution, laws and treaties of the United States.1 - So far, case or suit has been considered; but the Constitution extends the judicial power to controversies between two or more States, not to all controversies inasmuch as some of them might be political in character, and therefore more fitted for treaty or compact than judicial decision — but to controversies of a justiciable nature, to which the judicial power can properly extend. This phase of the question arose in the case of Chisholm v. Georgia (2 Dallas, 419, 432), decided in 1793, in which Mr. Justice Iredell said, commenting upon the judiciary act of 1789, in an opinion which has commended itself to posterity: 66 The act of Congress more particularly mentions civil controversies, a qualification of the general word in the Constitution, which I do not doubt every reasonable man will think well warranted, for it cannot be presumed, that the general word controversies" was intended to include any proceedings that relate to criminal cases, which in all instances that respect the same Government only, are uniformly considered of a local nature, and to be decided by its particular laws. Controversies In In re Pacific Railway Commission (32 Fed. Rep., 241, 255), decided Cases and in 1887, Mr. Justice Field, sitting at circuit, had occasion to consider the terms cases and controversies, to be found in the second section of the third article of the Constitution, regarding which he said: The judicial article of the constitution mentions cases and controversies. The term "controversies," if distinguishable at all from "cases," is 19 Wheaton, 818-19. so in that it is less comprehensive than the latter, and includes only suits of a civil nature. Chisholm v. Georgia, 2 Dall. 431, 432; 1 Tuck. Bl. Comm. App. 420, 421. By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication. In Osborn v. U. S., 9 Wheat. 819, the supreme court, speaking by Chief Justice Marshall, after quoting the third article of the constitution declaring the extent of the judicial power of the United States, said: "This clause enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on 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 the constitution declares, that the judicial power shall extend to all cases arising under the constitution, laws, and treaties of the United States." In his Commentaries on the Constitution, Mr. Justice Story says: "It is clear that the judicial department is authorized to exercise jurisdiction to the full extent of the constitution, laws, and treaties of the United States, whenever any question respecting them shall assume such a form that the judicial power is capable of acting upon it. When it has assumed such a form, it then becomes a case; and then, and not till then, the judicial power attaches to it. A case, then, in the sense of this clause of the constitution, arises when some subject touching the constitution, laws, or treaties of the United States is submitted to the courts by a party who asserts his rights in the form prescribed by law." 1 And Mr. Justice Story refers in a note to the speech of Marshall on the case of Robbins, in the house of representatives, before he became chief justice, which contains a clear statement of the conditions upon which the judicial power of the United States can be exercised. His language was: "By extending the judicial power to all cases in law and equity, the constitution has never been understood to confer on that department any political power whatever. To come within this description, a question must assume a legal form for forensic litigation and judicial decision. There must be parties to come into court, who can be reached by its process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit.” 1 132 Federal Reporter, 256. The distinction between controversies of a civil and criminal nature, first mentioned by Mr. Justice Iredell in the Chisholm case, and quoted with approval by Mr. Justice Field, was affirmed by the Supreme Court in the case of Wisconsin v. Pelican Insurance Company (127 U. S., 265), decided in 1888 by Mr. Justice Gray, speaking for a unanimous court. But cases and controversies are apparently considered as synonymous, differing, if at all, in that the latter include only suits of a civil nature. But a case and a controversy are identical in nature and coextensive as far as they go, as was admirably pointed out by Putnam, Circuit Justice, who said, in the case of King v. McLean Asylum (64 Fed. Rep., 332, 335–6), decided in 1894: 66 66 The appellees rely on a supposed distinction between the use of the word "cases" and the word controversies" in the section of the constitution defining the federal judicial power. That section uses the word cases" in the first three clauses, namely, "cases, in law and equity," arising under the constitution and the laws and treaties of the United States, cases affecting ambassadors, other public ministers and consuls," and cases of admiralty and maritime jurisdiction." So far it has relation mainly, although not entirely, to the subject-matter of the litigation, and not to the parties involved. It then changes to the word "controversies," and uses this with reference to "controversies to which the United States shall be a party," "to controversies between two or more states," and then, without repeating the word, continues "between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects." The change under consideration, from the word "cases to the word " controversies," will be found to have been a mere matter of style, and to have no relation to any limitation or extension of the class of questions to be adjudicated. As we have already said, so long as this section of the constitution speaks especially with reference to the nature of the questions involved, it uses the word "cases," but, when it considers more particularly proceedings having relation to the existence of parties, it uses the word controversies," probably because, when parties are spoken of as arrayed against each other, literary style suggested the change. "Case " The nature of a case was considered, not merely in its constitutional but International in its international aspect, in La Abra Silver Mining Co. v. United States (175 U. S., 423, 457), decided in 1899, in which the Supreme Court was obliged to consider an award in behalf of a citizen of the United States, rendered in his favor by a mixed commission organized under the treaty of July 4, 1868, between the United States and Mexico, and which the latter country alleged to be vitiated by the fraud of the American claimant, which, to our shame be it said, proved to be only too true. The Congress, which might have determined the matter, referred it to the Court of Claims, in accordance with the observation of Mr. Justice Curtis, speaking for the |