The implication from the foregoing, especially from the last clause, is that the Supreme Court may not take appellate jurisdiction in cases in which it might exercise original jurisdiction, and, therefore, that it would not be within the power of Congress to give to the inferior federal courts original jurisdiction over causes cognizable in the first instance by the Supreme Court. The point has never been squarely passed upon by the Supreme Court, but Congress has in fact, in a number of instances, granted such original jurisdiction to inferior federal courts, and there are a number of judicial dicta in support of the constitutionality of the practice.8 Indeed, by the original Judiciary Act of 1789, the Circuit and District Courts were given judisdiction in certain causes falling within the original jurisdiction of the Supreme Court as defined in the Constitution, and this congressional interpretation, practically contemporaneous with the adoption of the Constitution, has never been repudiated, and the provisions in question were incorporated into the Revised Statutes.9 This interpretation, furthermore, has been judicially defended by Justice Nelson in Graham v. Stucken,10 by Chief Justice Waite in Ames v. Kansas11 and Justice Field in United States v. Louisiana.12 In the Ames case the Chief Justice, after reviewing the long-continued construction of Congress and prior judicial dicta, says: "In view of the practical construction put on this provision of the Constitution by Congress at the very moment of the organization of the government, and of the very significant fact that from 1789 until now no court of the United States has ever in its actual adjudications determined to the contrary, we are unable to say that it is not within the power of Congress to grant to the inferior courts of the United States jurisdiction in cases where the Supreme Court has been vested by the Constitution with original jurisdiction." And in the latter cases, Justice Field says: "In Ames v. Kansas the question was very fully examined and the conclusion reached that the original jurisdiction of the Supreme Court in cases where a State is a party is not made exclusive by the constitution, and that it is competent for Congress to authorize suits by a State to be brought in the inferior courts of the United States."

7 Art. III, Sec. II, CI. 3.

In Marbury v. Madison (1 Cr. 137; 2 L. ed. 60), in answer to the contention that the grant of jurisdiction to federal courts being a general one and containing no restrictive or negative words, Congress might, within its discretion, extend or restrict the grant of original jurisdiction to the Supreme Court, Chief Justice Marshall said: "If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. . . . When an instrument organizing fundamentally a judicial system divides it into one supreme, and so many inferior courts as the legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original and not appellate, in the other it is appellate and not original."

8 Cf. Garland & Ralston, Constitution and Jurisdiction of the United States Courts, § 7.

The case of Ames v. Kansas is practically conclusive of the question, though technically it cannot be said to be an exact precedent, for the case was not one brought originally in a lower federal court, but first instituted in a state court, and thence removed to the federal Circuit Court.