Thomas Jefferson Papers

To Thomas Jefferson from Alexander J. Dallas, 13 February 1805

Washington 13 Feb. 1805.

Can a Prohibition issue from a Federal to a State Court?
1. The judicial authority of the United States, can only be exercised in such Courts, upon such subjects, and in such manner, as the Acts of Congress prescribe, under the limitations contained in the Constitution.
2. The judicial authority of the United States is sometimes exclusive of the judicial authority of the individual States, sometimes concurrent, and sometimes appellate. And the judicial authority of the individual States, is, likewise, sometimes exclusive, and sometimes concurrent, in relation to the judicial authority of the United States.
1 Vol. 83. f. 25. Swift’s Edit. 3. If a State Court takes cognizance of a subject exclusively belonging to the judicial authority of the United States, a Writ of Error lies from the highest Court of law, or equity, of the State, in which a decision could be had, to the Supreme Court of the United States. If a State Court takes cognizance of a subject, on which it has a concurrent jurisdiction, with a Federal Court, the right of of ultimate decision rests with the State Court, provided its jurisdiction was first exercised in the case; and provided it is not removed, for the causes, at the time, and in the manner, prescribed by the 12th. Section of the Judicial Act.
1 Vol. 56. f. 12.
3 Dallas’s Rep. 467. 4. But there is no Constitutional, or Legislative, provision, that does effect the right of a State Court, in the first instance, to decide, for itself, the question of its own jurisdiction, whether exclusive, or concurrent, in relation to the judicial authority of the United States.
Respa: vs Cobbet.
5. The Writ of Prohibition is in England, a Prerogative writ, which issues from the Superior Courts of Common Law to restrain Inferior Courts (whether temporal, ecclesiastical, maritime, or military &c) from the exercise of a jurisdiction that does not belong to them. It does not, however, transfer to the Superior Court, the subject in litigation for its decision, but merely prevents the Inferior Court from deciding upon it.
1 Vol. 58. f. 14. 6. It is obvious, therefore, that a Writ of Prohibition is not a Writ necessary, for the exercise of the respective jurisdictions of the Courts, by whom it may be issued; but is an Instrument employed by a Higher Court, of superintending authority, to suppress a proceeding of an Inferior Court, in cases non coram judice.
7. Congress had power to invest the Federal Courts, with the authority to issue Writs of Prohibition, from one Federal Court to another; and even from a Federal to a State Court, on subjects which the Constitution & Laws gave, exclusively, to the jurisdiction of the Federal Courts.
1 Vol. 58. f. 13. 8. But they have only exercised this power in a single instance, in relation even to the Federal Forum; by authorising the Supreme Court to issue Writs of Prohibition to the District Courts, “when proceeding as Courts of Admiralty and maritime jurisdiction.” The same section of the law, gave the right to issue writs of Mandamus; but as that has been adjudged to be an unconstitutional grant of power; and as the reason of the adjudication may be applied to the Writ of Prohibition; it is questionable, whether there exists any legitimate authority to issue a Prohibition, even to an Inferior Federal Court.
See 3 Dall. Rep. 121.
9. But, it is clear, that the grant of the Power, in one case, operates as an exclusion of its exercise, in any other case; and the express grant to the Supreme Court, can afford no countenance to an exercise of the power by any other Court, on an implication arising from a conflict of jurisdictions, either between one Federal Court and another, or between a Federal Court and a State Court.
3 Vol. 58. f. 14. 10. It is true, that the 14. section of the Judicial Act gives to all the Courts of the United States the power to issue Writs of Scire Facias, Habeas Corpus, “and all other Writs, not especially provided for by Statute, which may be necessary for the exercise of their respective jurisdictions, and agreable to the principles and usages of law”: but the general power, as well as the Writs specifically mentioned, must be considered as the means of effectivating the jurisdictions of the Courts, in cases actually before them, upon the subjects, which are expressly referred to them respectively; and not as creating a new, and original, authority, to enquire and determine, whether a State Court is exceeding its jurisdiction.

A. J. Dallas

DLC: Papers of Thomas Jefferson.

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