It has been already pointed out that the jurisdictions of the inferior federal courts and the appellate jurisdiction of the Supreme Court is wholly within the control of Congress, depending as they do upon statutory grant. It has, however, been argued that while the extent of this jurisdiction is thus within the control of the legislature, that body may not control the manner in which the jurisdiction which is granted shall be exercised, at least to the extent of denying to the courts the authority to issue writs and take other judicial action necessary for the proper and effective execution of their functions. In other words, the argument is, that while jurisdiction is obtained by congressional grant, judicial power, when once a court is established and given a jurisdiction, at once attaches by the direct force of the Constitution.

This position was especially argued by Senators Knox, Spooner, and Culberson and contested by Senator Bailey during the debate upon the Hepburn Railway Rate Bill of 1906. The point at issue was the constitutionality of the amendment offered by Senator Bailey providing that no rate or charge, regulation or practice, prescribed by the Interstate Commerce Commission, should be set aside or suspended by any preliminary or interlocutory decree or order of a circuit court.15

15 An interesting discussion of this point is that by Mr. J. W. Bryan in the American Law Review, XLI, 51, in an article entitled "The Constitutional Aspects of the Senatorial Debate upon the Rate Bill." Mr. Bryan's conclusion, which seems an eminently satisfactory one, is that while Congress may. within its discretion, refuse to the inferior federal courts jurisdiction, it cannot compel them to administer a judicial power from which any essential elements have been abstracted; and, therefore, in each case, it is open to the court to refuse to proceed in suits where, in its opinion, it has been denied by Congress sufficient authority and power to give the parties litigant due process of law; that is, adequately to protect their rights and enforce the judgments or decrees that may be rendered.

In State v. Morrill (16 Ark. 384) the Supreme Court of Arkansas declare: "The legislature may regulate the exercise of, but cannot abridge, the express or necessarily implied powers granted to this court by the Constitution. If it could, it might encroach upon both the judicial and executive departments, and draw to itself all the powers of government; and thereby destroy that admirable system of checks and balances to be found in the organic framework of both the federal and state institutions, and a favorite theory in the government of the American People. As far as the act in question goes, in sanctioning the power of the courts to punish as contempts the 'acts' therein enumerated, it is merely declaratory of what the law was before its passage. The prohibitory feature of the act can be regarded no more than the expression of a judicial opinion by the legislature that the courts may exercise and enforce all their constitutional powers, and answer all the useful purposes of their creation, without the necessity of punishing as a contempt any matter not enumerated in the act. As such, it is entitled to great respect, but to say that it is absolutely binding upon the courts, would be to concede that the courts have no constitutional and inherent power to punish any class of contempts, but that the whole subject is under the control of the legislative department; because, if the General Assembly may deprive the courts of power to punish one class of contempts, it may go the whole length, and divest them of power to punish any contempt." To same effect is Carter v. Com. of Va., 96 Va. 791.