with whom
Mr. Justice Douglas joins, dissenting.While I agree with the views expressed by Mr. Justice.. Frankfurter and Mr. Justice Rutledge which relate to the power of Congress under Art. I of the Constitution to vest federal district courts with jurisdiction over suits between citizens of States and the District qf Columbia, and with the views of Mr. Justice Frankfurter ánd Mr. Justice Jackson as to the,proper interpretation of the word “States” in the diversity clause of Art. Ill, I *627am constrained to state my views individually because of the importance of these questions to the administration of the federal court system. ~
I.
The question whether Congress has the power to extend the diversity jurisdiction of the federal district courts to citizens of the District of Columbia by virtue of its authority over the District under Art. I of the Constitution depends, in turn, upon whether the enumeration in Art. Ill of the cases to which the judicial power of the United States shall extend defines the outer limits of that power or is merely a listing of the types of jurisdiction with which Congress may invest federal courts without invoking any of the specific powers granted that body by other Articles of the Constitution. It has long been settled that inferior federal courts receive ho powers directly from the Constitution but only such authority as is vested in-them by the Congress. Turner v. Bank of North-America, 4 Dall. 8 (1799) ; McIntire v. Wood, 7 Cranch 504 (1813); Kendall v. United States, 12 Pet. 524 (1838); Cary v. Curtis, 3 How. 236 (1845).1 Since, therefore, there is no minimum of power préscribed for the inferior federal courts, and Congress need not have established any áuch courts, Lockerty v. Phillips, 319 U. S. 182, 187 (1943), the question is whether the enumeration of cases in Art. Ill, § 2 prescribes a -maximum of power or performs only the very limited office mentioned above.2
The theory that § 2 of Art. Ill is merely a supplement to the powers specifically granted Congress by the Con*628stitution is not, however, accepted at face value even by those who urge it. For they still would require that a case or controversy be presented. We are told that
.“Of course there are limits to the nature of duties which Congress may impose on the constitutional courts vested with the federal judicial power . . . [but] this statute . . . does not authorize or require either the district courts or this Court to participate in any legislative, administrative, political or other nonjudicial function or to render any advisory opinion.” Ante, pp. 590-591.
But as my Brothers Frankfurter and Rutledge have pointed out, if Art. Ill contains merely a grant of power to Congress, there is no more reason to find any limitation in the fact that the judicial power extends only to cases and controversies than in the specific enumeration of the kinds of cases or controversies to which it shall extend. The fundamental error in this position, as I see it, is the failure to distinguish between two entirely different principles embodied in Art. Ill, as elsewhere in the Constitution, both of which were repeatedly adverted to in the Constitutional Convention and have since been followed by this Court without substantial, deviation.
The first of these principles is that the three branches of government established by the Constitution are of coordinate rank, and that none may encroach upon the powers and functions entrusted to the others by that instrument. This principle found expression in the requirement of Art. Ill that the judicial power shall extend only to cases and controversies. Of equal .importance, however, was the second principle, that the Constitution con; tains a grant of power by the states to the federal government, and that all powers not specifically granted were reserved to the states or to the people.3 The powers *629granted the federal judiciary were spelled out with care and precision in Art. Ill by a delineation of the kinds of cases to which the judicial power could be extended.
The first principle is not now under attack, but proper perspective in viewing the second requires some examination of its origin and history. The framers of the Constitution were presented with, and rejected, proposals which would have vested nonjudicial powers in the national judiciary. Charles Pinckney of South - Carolina proposed, for example, that “Each branch of the Legislature, as well as the Supreme Executive shall have au-" thority to require, the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions.”4 Early in the Convention, however, the principle that the courts to be established should have jurisdiction only over cases became fixed. Thus it was that when the proposal was made on the floor of the Convention that the words, “arising under this Constitution” be inserted before “the Laws of the United States,” in what is now Art. Ill, § 2, Madison’s objection that it was “going too far to extend the jurisdiction of the Court generally to cases arising Under the Constitution, & whether it ought not to be limited to cases of a Judiciary Nature” was met by the answer that it was, in his own words, “generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature — .”5
Clear as this principle is, however, it was attacked in this Court on precisely the same grounds now asserted to sustain the diversity jurisdiction here in question. In Keller v. Potomac Electric Co., 261 U. S. 428 (1923), where this Court had before it an Act under which the courts of the District of Columbia were given revisory power over rates set by the Public Utilities Commission *630of the District, the appellee sought to sustain the appellate jurisdiction given this Court by the Act on the basis that “Although Art. Ill of the Constitution limits the jurisdiction of the federal courts, this limitation is subject to the power of Congress to enlarge the jurisdiction, where such enlargement may reasonably be required to enable Congress to exercise the express powers conferred upon it by the Constitution.” 261 U. S. at 435. There, as here, the power relied upon was that given Congress to exercise exclusive jurisdiction over the District of Columbia, and to make all laws necessary and proper to carry such powers into effect. But this Court clearly and unequivocally rejected the contention that Congress could thus extend the jurisdiction of constitutional courts, citing, the note to Hayburn’s Case, 2 Dall. 409, 410 (1792); United States v. Ferreira, 13 How. 40, note, p. 52 (1851), and Gordon v. United States, 117 U. S. 697 (1864). These and other. decisions of this Court clearly condition the power of a constitutional court to take cognizance of any cause upon the existence of a suit instituted according to the regular course of judicial procedure, Marbury v. Madison, 1 Cranch 137 (1803), the power to pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision, Muskrat v. United States, 219 U. S. 346 (1911); Gordon v. United States, supra, the absence of revisory or appellate power in any other branch-of Government, Hayburn’s Case, supra; United States v. Ferreira, supra; and the absence of administrative or legislative issues or controversies, Keller v. Potomac Electric Co., supra; Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693 (1927). While “judicial power,” “cases,” and “controversies” have sometimes been given separate definitions,6 these concepts are inextricably intertwined. The term “Judicial power” was itself sub*631stituted for the phrase, “The jurisdiction of the Supreme Court” to conform Art. Ill to the use of the terms “legislative Powers” and “executive Power” in Arts. I and. II.7 It thus draws life from that to which it extends: tó cases and controversies. That much, at any rate, is clear. Whether it draws life from any cases or controversies other than those specifically enumerated in Art. Ill must now be considered.
The second principle, that any powers not specifically granted to the national judiciary by Art. Ill were reserved to the states or the people, is here challenged. The reason such an attack is possible at this late date is, ironically enough, because of the implicit acceptance of that principle by the framers, by Congress, and by litigants ever since. Unlike the question of the relations between the branches of government, which first arose during Washington’s presidency and subsequently gave rise, in the cases previously adverted to, to frequent definition of the nature of cases and controversies, acceptance of the principle that Art. Ill contains a limitation on the power of the federal judiciary was so complete that the question did not often arise directly. Nevertheless, it is possible to demonstrate in a number of contexts the true intent of the framers.
First, the examination and rejection of various alternative proposals concerning the jurisdiction of the national judiciary by the Convention throws considerable light upon the compromise reached.8 On the one hand *632were those who thought that no inferior federal tribunals should be authorized; that state courts should be entrusted with the decision of all federal questions, subject to appeal to one Supreme Court. Madison’s notes reveal ’that
“Mr. Rutlidge hiavg. obtained a rule for reconsideration of the clause for establishing inferior tribunals under the national authority, now moved that that part of the clause . . . should be expunged: arguing that the State Tribunals might and ought to be left in all cases to decide in the first instance the right of appeal to the supreme national tribunal being sufficient to secure the national rights & uniformity of Judgmts: that it was making an unnecessary encroachment on the jurisdiction of the States, and creating unnecessary obstacles to their adoption of the new system.”9
The motion was carried and the clause establishing inferior federal tribunals excised from the draft Constitution. Madison, however, immediately moved “that the National Legislature be empowered to institute inferior tribunals,” urging that some provision for such courts was a necessity in a federal system. Madison’s notes then record the reaction of Pierce Butler of South Carolina to this proposal:
*633“The people will not bear such innovations. The States will revolt at such encroachments. Supposing such an establishment to be useful, we must not venture on it. We must follow the example of Solon who gave the Athenians not the best Govt, he could devise; but the best they wd. receive.”10
On the other hand, some members of the Convention favored a wider federal jurisdiction than was ultimately authorized. The Connecticut delegation, led by Roger Sherman, proposed “That the legislature of the United States be authorised to institute one supreme tribunal, and such other tribunals as they may judge necessary for the purpose aforesaid, and ascertain their respective powers and jurisdictions.” 11 This proposal, which is not substantially different in its effect from the interpretation now urged upon us, was not adopted by the Convention. When it became established that inferior federal courts were to be authorized by the Constitution, the limits of their jurisdiction immediately became an issue of paramount importance. The outline of federal jurisdiction was established only after much give and take, proposal and counterproposal, and — in the end— compromise. It was early proposed, for example, that federal jurisdiction be made to extend to “all piracies & felonies on the high seas, captures from an enemy; cases in which foreigners or citizens of othér States applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachments of any National officers, and questions which may involve the national peace and harmony.”12 But this was only one of many proposals concerning the extent *634of federal jurisdiction,13 ano not before many concessions and compromises had been made was the enumeration of cases now found in Art. Ill, § 2 agreed upon.
The judicial power was thus jealously guarded, by the states and unwillingly-granted to the national judiciary. Only when it could be demonstrated that a particular head of jurisdiction was acutely needed for the purposes of uniformity, and national harmony was it granted. In every state convention for ratification of the Constitution,' advocates and opponents of ratification considered in detail the kinds of cases and controversies to which the national judicial power was to extend. Each had to be justified.14 Far from assuming that the judicial power could be, by any means short of constitutional amendment, extended beyond those cases expressly provided for in Art. Ill, that Article was subjected to severe attacks on the ground that those powers specifically given *635would destroy the state courts. A delegate to . the Virginia Convention, for example, stated that “My next objection to the federal judiciary is, that it is not ex-, pressed in a definite manner. The jurisdiction of all cases arising under, the Constitution and the laws of the Union is of stupendous magnitude.”15 If, in addition to justifying every particle of power given to-federal courts by the Constitution, its defenders had been obliged to justify the competence of Congress — itself suspect by those who opposed ratification — to-extend that jurisdiction whenever it was thought necessary to effectuate one of the powers expressly given that body, their task would have been insuperable. The debates make that fact plain. .
That the federal judicial power was restricted to those classes of cases set forth in Art. Ill was clearly the opinion of those who had most to do with its drafting and acceptance. In the 80th Number of The Federalist, Hamilton listed the types of cases to which it was thought necessary that the judiciary authority of the nation should extend. All are found represented in Art. III.16 In the 81st Number, he wrote: /
*636“The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature . . . P.511. (Emphasis added.)
while in No. 82, the following appears:
“The only outlines described [for inferior courts] are that they shall be ‘inferior to the Supreme Court,’ and that they shall not exceed the specified limits of. the federal judiciary.” P. 516. (Emphasis added.)
And Madison, in a letter to a correspondent who had contended that the common law had been incorporated by the Constitution as federal law, wrote:
“A characteristic peculiarity of the Govt, of the U. States is, that its powers consist of special grants taken from the general mass of power, whereas other Govts, possess the general mass with special exceptions only. . Such being the plan of the Constitution, it cannot well be supposed that the Body which framed it with so much deliberation, and with so manifest a purpose of specifying its objects, and defining its boundaries, would, if intending that the Common Law shd. be a part of the national code, have omitted to express or distinctly indicate the intention; when so many far inferior provisions are so carefully inserted, and such appears to have been the public view taken of the Instrument, whether we recur to the period of its ratification by the States, or to the federal practice under it.”17
*637Cases in this Court which support the view that Art. Ill, § 2 limits the power of constitutional courts are not lacking. In The Mayor v. Cooper, 6 Wall. 247, 252 (1867), the Court defined the jurisdiction of inferior federal courts as follows:
“As regards all courts of the United States inferior to this tribunal, two things are necessary to create jurisdiction, whether original or appellate. The Constitution must have given to the court the capacity to take it, and an act of Congress must have supplied it. Their concurrence is necessary to vest it. It is the duty of Congress to act for that purpose up to the limits of the granted power. They may jail short oj it, but cannot exceed it.” (Emphasis added.)
And in a series of three cases decided between 1800 and 1809, the Court refused to give literal effect to § 11 of the Judiciary Act of 1789, which had extended the jurisdiction of Circuit Courts to suits where' “an alien is a. party,” because of the limitations imposed by Art. III. In Mossman v. Higginson, 4 Dall. 12, 14 (1800), it was decided that “as the legislative power of conferring jurisdiction on the federal Courts, is, in this respect, confined to suits between citizens and foreigners, we must so expound the terms of the law, as to meet the case, ‘where, indeed, an alien is one party,’ but a citizen is the other.” This construction of the statute was adhered to in Montalet v. Murray, 4 Cranch 46 (1807); and in Hodgson v. Bowerbank, 5 Cranch 303 (1809), where Chief Justice Marshall dismissed the contention that “The judiciary act gives jurisdiction to the circuit courts in all suits in which an alien is a party” with this admonition-: “Turn to the article of the constitution of the United States, for the statute cannot extend the jurisdiction beyond the limits of the constitution.”
*638Other examples may be cited of the Court’s consistent adherence to the principle that the judicial power of the United States is a constituent part of the concessions made by the states to the federal government and may not be extended. See Turner v. Bank of North-America, supra; United States v. Hudson and Goodwin, 7 Cranch 32, 33 (1812); Murray’s Lessee v. Hoboken Land and Improvement Co., 18 How. 272, 280-281 (1855); Kline v. Burke Construction Co., 260 U. S. 226, 233-234 (1922); Ex parte Bakelite Corp., 279 U. S. 438, 449 (1929); Federal Radio Commission v. General Electric Co.; 281 U. S. 464, 469 (1930). Over a century and a half of consistent interpretation of Art. Ill is well summed up in one sentence from this Court’s opinion in Sheldon v. Sill, 8 How. 441, 449 (1850):
“The Constitution has defined the limits of the judicial power of the United States, but has not prescribed how much of it shall be exercised by the Circuit Court ; consequently, the statute which does prescribe the limits of their jurisdiction, cannot be in conflict with the Constitution, unless it confers powers not enumerated therein.” (Emphasis added,)
The cases chiefly relied upon by those who contend that Art. Ill does not define the limits of the judicial power are O’Donoghue v. United States, 289 U. S. 516 (1933), and Williams v. United States, 289 U. S. 553 (1933), which concerned reductions in salary of judges of the District Court for the District of Columbia and the Court of Claims respectively. In these cases, this Court held that Art. Ill, § 1 of the Constitution forbade reduction of the salary of the former, who was found to be a judge of a “constitutional” (i. e., an inferior, court as used in Arts. I and III) court, but not of the latter, á judge of a “legislative” court.
Two separate but related points concerning the O’Donoghue case should be emphasized. The first is that since *639District of Columbia courts may be given nonjudicial duties, Butterworth v. Hoe, 112 U. S. 50 (1884); Baldwin Co. v. Howard Co., 256 U. S. 35 (1921); Keller v. Potomac Electric Co., supra, reliance upon that case to support the Act now under consideration is incompatible with the position that constitutional courts may only decide “cases” and “controversies” of a judicial nature. The second is that the rationale of the O’Donoghue case is, by its terms, limited to courts of the District. For the Court said (at p. 546): “If, in creating and defining the jurisdiction of the courts of the District, Congress were limited-to A,rt. Ill, as it is in dealing with the other federal courts, the administrative and other jurisdiction spoken of could not be conferred upon the former.”
In view of this express limitation, the O’Donoghue case lends no support to the Act now in question. To extend its applicability beyond the courts of the District is warranted neither by the language nor the reasoning of that case. The Court in no way diminished the authority of American Insurance Co. v. Canter, 1 Pet. 511 (1828), which had held that the courts of Florida Territory were legislative courts not created pursuant to Art. Ill and incapable of receiving the judicial power set out therein. Since territorial courts cannot be invested with Art. Ill power, the strict dichotomy between legislative and constitutional courts still exists — except in the District of Columbia.' It is not enough to refer to. the breadth of congressional power over the District; that such power is national in character rather than merely local. The power of Congress over the territories is- equally broad, yet territorial courts cannot be invested with Art. Ill power under the O’Donoghue case. And some -of the very statements now relied upon as indicating the scope of Congress’ power over the District18 were quoted in the *640O’Donoghue case, but the rationale of that case was expressly limited to courts of the District, as noted abové. The District of Columbia courts were there regardéd as unique — different in powers and makeup from either territorial courts or other constitutional courts. Extension of the O’Donoghue case to all constitutional courts is clearly unwarranted under these circumstances, especially in the face of the uncontradicted constitutional history previously outlined.
. Except in the District of Columbia, therefore, American Insurance Co. v. Canter, supra, and a long line of cases in the same vein19 prohibit the intermixture or combination of the personnel, powers, or duties of constitutional and legislative courts. Whether a court is of one category or the other depends upon what power of Congress was utilized in its creation. If it was the power to create inferior constitutional courts, the court may exercise only the judicial power outlined in Art. III. If Congress creates a judicial body to implement another of its constitutional' powers, that body is a legislative court and may exercise none of the judicial power of Art. III.20 We have *641held that the answer to the question whether a court is of one kind or another “lies in the power under which the court was created and in the jurisdiction conferred.” Ex parte Bakelite Corp., supra at 459. I would adhere to that test.
What has been said does not mean, of course, that legislative courts cannot exercise jurisdiction over questions of the same nature as those enumerated in Art. Ill, § 2. It was clearly contemplated by the framers that state courts should have federal question jurisdiction concurrent with that exercised by inferior federal courts, yet they are not constitutional courts nor do they exercise the judicial power of Art. III. The legislative courts created by Congress also can and do decide questions arising under the Constitution and laws of the United States (and, in the case of territorial courts, other types of jurisdiction enumerated in Art. Ill, § 2 as well), but that jurisdiction is not, and cannot be, “a part of that judicial power which is defined in the 3d article of the Constitution.” These courts are “incapable of receiving it.” American Insurance Co. v. Canter, supra at 546; Reynolds v. United States, supra at 154.21
*642The appellate jurisdiction of this Court is, in fact,.dependent upon the fact that the case reviewed is of a kind within the Art: III enumeration. That article, after setting out the cases of which inferior, courts may take *643cognizance and the original jurisdiction of this Court, extends the appellate jurisdiction of the Supreme Court only as far as “all the other Cases before mentioned.” (Emphasis added.) We can no more review a legislative court’s decision of a case which is not among those enumerated in Art. Ill than we can hear a case from a state court involving purely state law questions. But a question under the Constitution and laws of the United States-, whether arising in a constitutional court, a state court, or a legislative court may, under the Constitution, be a subject of this Court’s appellate jurisdiction. It was long ago held that
“The appellate power is not limited by the terms of the third article to any particular courts. The words are, ‘the judicial power (which includes appellate power) shall extend to all .cases/ &c., and ‘in all other cases before mentioned the supreme court shall-have appellate jurisdiction.’ It is the case, then, and not the court, that gives the - jurisdiction. If the judicial power extends to -the case, it will be in vain to search in the letter of the constitution for any qualification a's to the tribunal where it depends.” Martin v. Hunter’s Lessee, 1 Wheat. 304, 338 (1816).
There is. no^anomaly, therefore, in the fact that legislative courts, as well as constitutional courts, exercise federal question jurisdiction, and that they sometimes exercise concurrent jurisdiction over the same matters. That does not make the former constitutional courts, American Insurance Co. v. Canter, supra; Ex parte Bakelite Corp., supra. Still less does it make the latter legislative courts, which is the effect of the statute now being considered. It is one thing to say that legislative courts may exercise jurisdiction over some of the same matters that are within Art. Ill judicial.power. It is quite another thing to hold that constitutional courts may take cognizance of causes which are not within the scope of that power.
*644It may be argued that the distinction between constitutional and legislative courts is meaningless if the latter may be invested with jurisdiction over the subjects of Art. Ill judicial power. But there are limitations which insure the preservation of the system of federal constitutional courts distinct from legislative courts. In the first place, a legislative court must be established under some one of the specific powers given to Congress, and it is unlikely that all of the subjects of the judicial power could be justified as an exercise of those powers.22 Furthermore, we cannot impute to Congress an intent now or in the future to transfer jurisdiction from constitutional to legislative courts for the purpose of emasculating the former; Chief Justice Marshall suggested another limitation in the Canter case, when he said that within the States, admiralty jurisdiction, can be exercised solely by constitutional courts, although that limitation does not apply to the Territories. It is at least open to question, therefore, whether all of the subjects of Art. Ill judicial power, or only federal question jurisdiction, may be transferred to legislative courts within the States. Finally, Ex parte Bakelite Corp., supra, has been read as suggesting that- the jurisdiction of legislative courts is limited to matters which, while proper subjects of judicial determination, need not be so determined under the Constitution.23 The- least that may be said is .that no decisions of this Court have suggested that legislative courts may take over the.entire field of federal judicial authority.
There is a certain surface appeal to the argument that, if Congress may create statutory courts to hear these cases, it should be able? to -adopt the less expensive and more practical expedient of vesting that jurisdiction *645in the existing and functioning federal courts throughout the country. No doubt a similar argument was pressed upon the judges in Hayburn’s Case. Unless expediency is to be the test of jurisdiction of the federal courts, however, the argument falls of its own weight. The framers unquestionably intended that the jurisdiction of inferior federal courts be limited to those cases and controversies enumerated in Art. III. I would not sacrifice that principle on the altar of expediency.
II.
There are numerous sections of the Constitution which are concerned solely with the mechanics of government and, of necessity, set rather arbitrary limits upon the exercise of power by the three branches of government. No doubt requirements of this kind have proven in the past, and may, in the future, prove unduly restrictive and undesirable. • Yet if a question concerning any one of them were before us, I do not suppose that any member of the Court would read into the Constitution the changes thought desirable in our day.
The only difference in respect of the most explicit of these limitations of power and' the limitation imposed by the word “State” in Art. Ill is that the meaning urged upon the Court is not expressly controverted by the language of the Constitution. That it was not the specific intent of the framers to extend diversity jurisdiction to suits between citizens of the District of Columbia and the States seems to be conceded. One well versed in that subject, writing for the Court within a few years of adoption of the Constitution, so held.
The question is, then, whether this is one of those sections of the Constitution to which time and experience were intended to give content, or a provision concerned solely with the mechanics of government. I think there can be little doubt but that it was the latter. That we *646would now write the section differently seems hardly a sufficient justification for an interpretation admittedly inconsonant with the intent of the framers. Ours is not an amendatory function.
I hardly need add that I consider a finding of unconstitutionality of a statute a matter- of- grave concern. Nevertheless, Congress cannot do that which the Constitution specifically forbids. I think that it has attempted to do so here.
See also Sheldon v. Sill, 8 How. 441 (1850); Kline v. Burke Construction Co., 260 U. S. 226 (1922); Lauf v. E. G. Shinner & Co., 303 U. S. 323. (1938); Lockerty v. Phillips, 319 U. S. 182 (1943).
1. e., is an enumeration of cases to which Congress may extend the jurisdiction of the federal courts without invoking other of its powers under the-Ccjnstitution. '
This principle, implicit in the arguments at the Constitutional Convention, was made explicit in the 10th Amendment.
2 FarrancI, Records of the Federal Convention 341, hereinafter cited as Fárrand.
Id. at 430.
See Muskrat v. United States, 219 U. S. 346, 356 (1911).
2 Farrand 425.
The propriety- of considering the proposals and debates of' the Constitutional Convention was long ago considered by those most intimately concerned with its formulation. Washington, in his message to the House of Representatives refusing the demands' of that body for the papers relating to Jay’s treaty, stated: “If other proofs than these, and the plain letter of the Constitution itself, be necessary to ascertain the point under consideration, they may be found-*632in the Journals of the General Convention, which I have deposited in the office of the Department of State. In those Journals it will appear, that a proposition was made, ‘that no Treaty should be binding on the United States which was not ratified by a law,’ and that the proposition was explicitly rejected.” 5 Annals of Congress, Fourth Congress, 1st Sess., p. 761. See also the comment of Madison at a later date. 9 Writings of James Madison 240.
1 Farrand 124. See the argument of Luther Martin before the Maryland House of Representatives opposing ratification of the Constitution in 3 Farrand 156. See also 2 Elliot, Debates 408; 3 id. at 562 et seq.
This account, taken from Madison’s notes, is found in 1 Farrand 124-125.
3 Farrand 616.
1 Farrand at 22.
Id. at 231. The sense of the Convention at this point, was expressed in Yates’ Notes as follows: “Gov. Randolph observed the .difficulty in estáblishing the powers of the judiciary — the object however at present is to establish this principle, to wit, the security of foreigners where treaties are in their favor, and to preserve the harmony of states and that of the citizens thereof. This being once established, it will be the business of a sub-committee to detail it; and therefore moved to obliterate such parts of the resolve so as only to establish the principle, to wit, that the jurisdiction of the national judiciary shall extend to all cases of national revenue, impeachment of national officers, and questions which involve the national peace or harmony. Agreed to unanimously.”. 1 Farrand 238. . ' "
See, e. g., Madison’s defense of the Judiciary Article before the Virginia .Convention, 5 Writings of James Madison 216-225; 2 Elliot, Debates 109; id. at 409, where among the resolutions affecting Art. III was one which “Resolved, as the opinion of this committee, that the jurisdiction of the Supreme Court of the United States, or of any other court to be instituted by the Congress, ought not, in any case, to be increased, enlarged, or extended, by any fiction, collusion, or mere suggestion”; id. at 489-4Í94; 3 Elliot, Debates 517-584.
3 Elliot, Debates 565. And see Patrick Henry’s remarks, id. at 539-546.
The • cases' enumerated were the following: “1st, to lall those which arise out of the laws of the United States, passed in pursuance of their just and constitutional powers of legislation; 2d, to all those which concern the execution of the provisions expressly contained in the articles of Union; 3d, to all those in which the United States are a party; 4th, to all those which involve the peace of the Confederacy, whether they relate to the intercourse between the United States and foreign nations, or to that between the States themselves; 5th, to all those which originate on the high seas, and are of admiralty or maritime jurisdiction; and, lastly, to all those in which the State tribunals cannot be supposed to be impartial and unbiased.” P. 494.
9 Writings of James Madison 199-200. And see United States v. Hudson and Goodwin, 7 Cranch 32 (1812); Erie R. Co. v. Tompkins, 304 U. S. 64 (1938).
From Grether v. Wright, 75 F. 742 (1896).
See e. g., Benner v. Porter, 9 How. 235 (1850); Clinton v. Englebrecht. 13 Wall. 434 (1871); Reynolds v. United States, 98 U. S. 145 (1878); McAllister v. United States, 141 U. S. 174 (1891); United States v. Burroughs, 289 U. S. 159 (1933); Ex parte Bakelite Corp., 279 U.S. 438 (1929).
In Williams v. United States, 289 U. S. 553 (1933), the Court found that the Court of Claims had been created pursuant to the power of Congress under Art. I to pay the debts of the United States and had been ^iven powers and duties inconsistent with those of an Art. Ill court. The Court’s consideration of the question whether “Controversies to which the United States shall be a Party” in Art. Ill includes suits against the United States was therefore unnecessary to the decision, since an affirmative answer would not have converted the Court of Claims into a constitutional court. It is “incapable of receiving” the Art. Ill power. American Insurance Co. v. Canter, supra. Furthermore, the Court recognized inferentially that the Court of Claims does exercise jurisdiction over some *641questions of the kind enumerated in Art. Ill when, with reference to claims founded upon the Constitution, it held that “the requirement is one imposed by the Constitution and equally applicable whether jurisdiction be exercised by a legislative court or a constitutional court.” 289 U. S. at 581. Since Court of Claims jurisdiction also includes claims founded upon any Act of Congress, it is clear that that court exercises parallel jurisdiction with that of constitutional courts over cases arising under the Constitution and laws of the United States, although limited to suits involving claims against the United States. This points up the fact that the Court’s discussion of the phrase, “Controversies to which the United States shall be a Party,” was unnecessary to the decision.
It is argued that because federal district courts exercise jurisdiction over claims against the United States concurrent with that of the Court of Claims, the former are exercising jurisdiction of non-Art. Ill nature. Whether or not the dictum in Williams v. United *642States, 289 U. S. 553 (1933) that suits against the United States are-not within the Art. Ill phrase, “Controversies to which the United States shall be a Party,” proves correct, see note 20, supra, such actions seem to be clearly within the Art. Ill federal question jurisdiction. See 2 Moore, Federal Practice (1948 ed.) 1633. Of course the fact that' Congress, extends,the jurisdiction of federal courts to suits involving certain subject matter- does not itself make them the ■ subject of federal question jurisdiction. But the sovereign’s immunity from süit has never been regarded simply as a question of unavailability of a forum. As Hamilton said in The Federalist, No. 81, p. 508: ‘-‘The contracts between a nation and individuals are only binding on the. conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will.” When the sovereign consents to be sued, therefore, considerably more is involved than opening the courts to plaintiffs already possessed of causes of action. For as Mr. Justice Brandéis said in Lynch v. United States, 292 U. S. 571, 582 (1934): ‘ “The sovereign’s .immunity from suit exists whatever the character of the proceeding or the source of the right sought to be enforced. It applies alike to causes of action arising under acts of Congress, . . . and to those arising from some, violation .of rights conferred upon the citizen by the Constitution, . . . The character, of the cause of action — -the fact that it is in contract as distinguished from tort — m^ty be important in determining (as under the-Tucker Act) whether consent to sue was given. • Otherwise, it is of no significance. For immunity from suit is an attribute .of' sovereignty which may not be bartered 'away.”
Since any right of action against the United States is completely and wholly dependent upon whether an Act of Congress has authorized tlie suit, see United States v. Minnesota Mutual Investment Co., 271 U. S. 212, 217 (1926), a question arising under the laws of- the United States, as that phrase is used in Art. Ill, is clearly presented by any claim against the 'federal government. Since Congress has decreed that all such actions shall be brought in federal courts, the •question presented in Gully v. First National Bank, 299 U. S. 109 (1936), Puerto Rico v. Russell & Co., 288 U. S. 476. (1933): and related cases is not involved:-
Except', perhaps,, when Congress legislates for the Territories or the District tyf Columbia.
Katz, Federal Legislative Courts, 43 Harv. L. Rev. 894, 916-917.