Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/657

 CH. XXXVIII.] strong grounds to maintain, that the language of the constitution meant to confer the appellate jurisdiction absolutely on the Supreme Court, independent of any action by congress; and to require this action to divest or regulate it. The language, as to the original jurisdiction of the Supreme Court, admits of no doubt. It confers it without any action of congress. Why should not the same language, as to the appellate jurisdiction, have the same interpretation? It leaves the power of congress complete to make exceptions and regulations; but it leaves nothing to their inaction. This construction was asserted in argument at an earlier period of the constitution. It was at that time denied; and it was held by the Supreme Court, that, if congress should provide no rule to regulate the proceedings of the Supreme Court, it could not exercise any appellate jurisdiction. That doctrine, however, has, upon more mature deliberation, been since overturned; and it has been asserted by the Supreme Court, that, if the judicial act (of 1789) had created the Supreme Court, without defining, or limiting its jurisdiction, it must have been considered, as possessing all the jurisdiction, which the constitution assigns to it. The legislature could have exercised the power possessed by it of creating a Supreme Court, as ordained by the constitution; and, in omitting to exercise the right of excepting from its constitutional powers, would have necessarily left those constitutional powers undiminished. The appellate powers of the Supreme Court are not given by the judicial act (of 1789). They are given by 82