Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/588

 580 conclusion seems irresistible, that its framers designed to include in the first class those cases, in which jurisdiction is given, because a state is a party; and to include in the second those, in which jurisdiction is given, because the case arises under the constitution, or a law. This reasonable construction is rendered necessary by other considerations. That the constitution, or a law of the United States, is involved in a case, and makes a part of it, may appear in the progress of a cause, in which the courts of the Union, but for that circumstance, would have no jurisdiction, and which of consequence could not originate in the Supreme Court. In such a case, the jurisdiction can be exercised only in its appellate form. To deny its exercise in this form is to deny its existence, and would be to construe a clause, dividing the power of the Supreme Court, in such manner, as in a considerable degree to defeat the power itself. All must perceive, that this construction can be justified, only where it is absolutely necessary. We do not think the article under consideration presents that necessity.

§ 1705. It is observable, that in this distributive clause no negative words are introduced. This observation is not made for the purpose of contending, that the legislature may "apportion the judicial power between the supreme and inferior courts, according to its will." That would be, as was said by this court in the case of Marbury v. Madison, to render the distributive clause "mere surplusage," to make it "form without substance." This cannot, therefore, be the true construction of the article. But although the absence of negative words will not authorize the legislature to disregard the distribution of the power previously granted, their absence will justify a sound