This provision was at issue in Ravara's case. Ravara was a consul, indicted for a crime in the fed. court of appeals in the 1790s. Ravara moved to quash on the ground that as a consul, his case belonged in the Supreme Court. He lost, 2-1, with the 2 Justices on the panel splitting. Ravara's case was later cited as an authority by Marbury's counsel , Charles Lee, for the proposition that Congress may expand the original jurisdiction of a federal court beyond what Art. III spells out. I use this as an exercise in precedential reasoning in my con law class. Dan Hoffman
Edward A Hartnett wrote:
There is at least one instance in which the Judiciary Act of 1789 gave the inferior federal courts jurisdiction over cases that fall within the Supreme Court's original jurisdiction.
Article III allocates to the Supreme Court's original jurisdiction "all cases affecting ambassadors, other public ministers and consuls."
Section 13 of the Judiciary Act of 1789 gave the Supreme Court "original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party."
Section 9 gave the district courts "jurisdiction exclusively of the courts of the several States, of all suits against consuls or vice-consuls." (This grant was subject to an exception for certain offences.)
Under the JA of 1789, then, both the district courts and the Supreme Court had original jurisdiction over these cases against consuls or vice-consuls, but state courts did not.
Ed Hartnett Seton Hall
"Matthew J. Franck" <[EMAIL PROTECTED] To: [EMAIL PROTECTED] U> cc: Sent by: Discussion Subject: Re: Further Yet Re: Query on Eleventh Amendment list for con law professors <[EMAIL PROTECTED] v.ucla.edu>
08/19/03 10:12 AM Please respond to Discussion list for con law professors
Louise,
I do not question the correctness of Ames v. Kansas or of Illinois v. Milwaukee. At least I don't think I do! But those are post-1875 cases, hence governed by the statutes that newly endowed the lower federal courts with general federal question jurisdiction. The Judiciary Act of 1789 did not accord the federal district and circuit courts such jurisdiction, so I surmise that the "original but not exclusive" jurisdiction of the Supreme Court in sec. 13 of that act is a reference to the jurisdiction's being concurrent with the state courts, not lower federal ones. (Perhaps that could be qualified as to the district courts' admiralty jurisdiction in sec. 9, if a state is party to such a case.) In short, I did not mean to say that Congress could not make the Court's original jurisdiction concurrent with that of lower federal courts--only that in the 1789 act it did not do so.
Matt *************************** Matthew J. Franck Professor and Chairman Department of Political Science Radford University P.O. Box 6945 Radford, VA 24142-6945 phone 540-831-5854 fax 540-831-6075 e-mail [EMAIL PROTECTED] *************************** At 11:49 PM 8/18/2003 -0500, you wrote: Dear Matt, I should respond to your further observation that the concurrent jurisdiction in The Cohens was "in the state courts." I would be surprised if, on reflection, you would think that that somehow matters, but if you do, why do you think so? Is it your position that Section 13 contemplated concurrent jurisdiction in cases in which one state was a party, but only in state courts? Or that Ames v. Kansas and Illinois v. Milwaukee were wrongly decided in recognizing concurrent original jurisdiction also in federal trial courts? Or is it your position, on the other hand, that state criminal prosecutions can only be tried in federal courts, since jurisdiction in those cases is concurrent with the Supreme Court's? Or perhaps you mean something else entirely. (?) Curious, Louise
August 18, 2003 Dear Matt, Thanks. Of course you are right. But so am I. In your recollection of Marshall's attempt to distinguish Marbury, I am sure you nevertheless do see that what that part of The Cohens meant in the context of your question was that the Court's original jurisdiction was permitted to be concurrent in courts below, rather than exclusive to the Supreme Court. The state is generally a party in a criminal prosecution in a state court. Such concurrent state jurisdiction was within the contemplation of Section 13 of the First Judiciary Act. (The reason that an 11th Amendment question arose was that, in a criminal defendant's "appeal" from a judgment of conviction, the petititon will be "against" the state.) All best, Louise
At 07:40 PM 8/18/03, you wrote: Thank you, Louise. Both your messages are helpful. In Cohens what Marshall had in mind (if I recall it aright) was that a case that might fit the Court's original jurisdiction (according to the character of the parties) may also be heard under its appellate jurisdiction (thanks to the presence of a federal question), else sec. 25 of the judiciary act would be void in a case like Cohens itself--hence he refined a dictum in Marbury about the mutual exclusivity of original and appellate jurisdiction. When the original judiciary act in sec. 13 provided for original jurisdiction that was not exclusive, it did so on precisely this understanding--but it was state courts, not lower federal ones, that had concurrent jurisdiction under the act, was it not? Anyway, thanks again for confirming my hunch that the original jurisdiction could not be curtailed without a constitutional amendment. Any dissenters to that proposition among the list members?
Regards,
Matt *************************** Matthew J. Franck Professor and Chairman Department of Political Science Radford University P.O. Box 6945 Radford, VA 24142-6945 phone 540-831-5854 fax 540-831-6075 e-mail [EMAIL PROTECTED] *************************** At 06:49 PM 8/18/2003 -0500, you wrote: Dear Matt, I should have added two points to my below message. First, Marshall came to see that Congress had power to make some of the Court's original jurisdiction concurrent, and explained the position in The Cohens v. Virginia. Second, all of the understandings I have mentioned go to the power to make original jurisdiction concurrent, rather than any power of Congress to prohibit the Court from exercising an item of its original jurisdiction. As to that, given the explicit language of the Constitution, I should think your suggestion is correct, that you would need a constitutional amendment. Best, Louise
Aug. 18, 2003 Dear Matt, The Exceptions Clause, though not so read by Marshall during the ratification debates, was so read by others at the time, including Pendleton. The First Judiciary Act sec. 13, made parts of the original jurisdiction, in effect, discretionary by making it concurrent with the jurisdiction of courts below. Cf. Illinois v. Milwaukee, S.Ct. 1972 (excplaining that where only one state is a party the jurisdiction is discretionary). The classic reference, I believe, is Ames v Kansas, S.Ct. 1884. Best, Louise
At 03:18 PM 8/18/03, you wrote: I seek the advice of the list members on the following problem. Assume that Chisholm v. Georgia was correctly decided (even if only for the sake of argument). Could Congress have reversed its effect by a mere statutory expedient, rewriting the Judiciary Act to confine the Court's original jurisdiction where states were parties to those cases in which the state was plaintiff but not defendant? Or would that encounter a Marbury problem? In Marbury it was concluded that Congress may not enlarge the Court's original jurisdiction. May the Congress diminish that jurisdiction? Or was the Eleventh Amendment, strictly speaking, absolutely necessary to reverse Chisholm? I beg pardon if this is too obvious for me to figure out (my brain is tired), and I'd appreciate any references to works that address this. I find nothing right away in the books by Jacobs and Orth on this subject.
Matt
*************************** Matthew J. Franck Professor and Chairman Department of Political Science Radford University P.O. Box 6945 Radford, VA 24142-6945 phone 540-831-5854 fax 540-831-6075 e-mail [EMAIL PROTECTED] ***************************
