This hypothesis is not founded on any words stitution, laws, and treaties of the United States, is in the constitution, which might seem to counte- not confided, particularly, to their judicial departnance it, but on the unreasonableness of giving a ment, but is confided equally to that department contrary construction to words which seem to re- and to the state courts, however they may be conquire it; and on the incompatibility of the applica-stituted. "Thirteen independent courts," says a tion of the appellate jurisdiction to the judgments very celebrated statesman, and we have now more of state courts, with that constitutional relation, than twenty, "of final jurisdiction over the same which subsists between the government of the causes, arising upon the same laws, is a hydra in union, and the government of those states which government, from which nothing but contradiction compose it. and confusion can proceed." Let this unreasonableness, this total incompati. bility, be examined. That the United States form, for many and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one, and the government which is alone capable of controling and managing their interests in all these respects, is the government of the union. It is their government, and in that character they have no other. America has chosen to be, in many respects, and to many purposes, a nation; and for all these purposes, her government is complete; to all these objects, it is competent. They have declared, that, in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The constitution and laws of a state, so far as they are repugnant to the constitution and laws of the United States, are absolutely void. These states are constituent parts of the United States. They are members of one great empire-for some purposes sovereign: for some purposes subordinate. Dismissing the unpleasant suggestion that any motives which may not be fairly avowed, or which ought not to exist, can ever influence a state or its courts, the necessity. of uniformity as well as correctness in expounding the constitution and and laws of the United States, would itself suggest the propriety of vesting in some single tribunal the power of deciding, in the last resort, all cases in which they are involved. We are not restrained, then, by the political re|lations between the general and state governments, from construing the words of the constitution defining the judicial power in their true sense." We are not bound to construe them more restrictively than they naturally import. They give to the supreme court appellate jurisdiction in all cases arising under the constitution, laws, and treaties of the United States. The words are broad enough to comprehend all cases of this description, in whatever court they may be decided. In expounding them, we may be permitted to take into view those considerations to which courts have always allowed great weight in the exposition of laws. The framers of the constitution would naturally examine the state of things existing at the time; and their work sufficiently attests that they did so. In a government so constituted, is it unreasonable All acknowledge that they were convened for the that the judicial power should be competent to purpose of strengthening the confederation by give efficacy to the constitutional laws of the legis enlarging the powers of the government, and by lature? That department can decide on the va-giving efficacy to those which it before possessed, lidity of the constitution or law of a state, if it be but could not exercise. They inform us themrepugnant to the constitution or to a law of the U. selves, in the instrument they presented to the States. Is it unreasonable that it should also be American public, that one of its objects was to empowered to decide on the judgment of a state form a more perfect union. Under such circumtribunal enforcing such unconstitutional law? Is it stances, we certainly should not expect to find, in so very unreasonable as to furnish a justification for that instrument, a diminution of the powers of the controling the words of the constitution? actual government. We think it is not. We think that in a govern- Previous to the adoption of the confederation, ment acknowledgly supreme with respect to ob-congress established courts which received apjects of vital interest to the nation, there is nothing peals in prize causes, decided in the courts of the inconsistent with sound reason, nothing incompa- respective states. This power of the government, tible with the nature of government, in making all to establish tribunals for these appeals, was thought its departments supreme, so far as respects those consistent with, and was founded on, its political objects, and so far is necessary to their attainment. relations with the states. These courts did exerThe exercise of the appellate power over those cise appellate jurisdiction over those cases decided judgments of the state tribunals which may contra- in the state courts, to which the judicial power of vene the constitution or laws of the United States, the federal government extended. is, we believe, essential to the attainment of those objects. The propriety of entrusting the construction of the constitution, and laws made in pursuance thereof, to the judiciary of the union, has not, we believe, as yet been drawn into question. It seems to be a corollary from this political axiom, that the federal courts should either possess exclusive jurisdiction in such cases, or a power to revise the judgments rendered in them, by the state tribunals. If the federal and state courts have concurrent ju. risdiction in all cases arising under the constitution, laws, and treaties of the United States; and if a case of this description, brought in a state court, cannot be removed before judgment, nor revised after judgment, then the construction of the con The confederation gave to congress the power "of establishing courts for receiving and determining finally appeals in all cases of captures." This power was uniformly construed to autho rize those courts to receive appeals from the sentences of state courts, and to affirm or reverse them. State tribunals are not mentioned; but this clause in the confederation necessarily comprises them. Yet the relation between the general and state governments was much weaker, much more lax, under the confederation than under the present constitution; and the states being much more completely sovereign, their institutions were much more independent. The convention which framed the constitution, on turning their attention to the judicial power, found it limited to a few objects, but exercised, | risdiction to the supreme court, to appeals from with respect to some of those objects, in its appel- the subordinate federal courts, instead of allowing late form, over the judgments of the state courts. their extension to the state courts, would be to They extend it, among other objects, to all cases abridge the latitude of the terms, in subversion arising under the constitution, laws, and treaties of the interest, contrary to every sound rule of inof the United States; and, in a subsequent clause, terpretation." declare that, in such cases, the supreme court shall exercise appellate jurisdiction. Nothing seems to be given which would justify the withdrawal of a judgment rendered in a state court, on the constitution, laws, or treaties of the United States, from this appellate jurisdiction. Great weight has always been attached, and very rightly attached, to contemporaneous exposition. No question it is beileved, has arisen to which this principle applies more unequivocally than to that now under consideration. We A contemporaneous exposition of the constitution, certainly of not less authority than that which has been just cited, is the judicial act itself. know that in the congress, which passed that act, were many eminent members of the convention which formed the constitution. Not a single indi. vidual, so far as is known, supposed that part of the act which gives the supreme court appellate jurisdiction, over the judgments of the state courts, in the cases therein specified, to be unauthorized by the constitution. The opinion of the Federalist has always been While on this part of the argument, it may be considered as of great authority. It is a complete also material to observe that the uniform decisions commentary on our constitution; and is appealed of this court, on the point now under consideration, to by all parties in the questions to which that in- have been assented to, with a single exception, by strument has given birth. Its intrinsic merit en- the courts of every state in the union whose judg titles it to this high rank; and the part two of its ments have been revised. It has been the unwelauthors performed in framing the constitution, put come duty of this tribunal to reverse the judgments it very much in their power to explain the views of many state courts in cases in which the strangest with which it was framed. These essays having state feelings were engaged. Judges, whose tabeen published while the constitution was before lents and character would grace any bench, to the nation for adoption or rejection, and having whom a disposition to submit to jurisdiction that been written in answer to objections founded en-is usurped, or to surrender their legitimate pow...tirely on the extent of its powers, and on its dimi-ers, will certainly not be imputed, have, yielded nution of state sovereignty, are entitled to the without hesitation to the authority by which their more consideration where they frankly avow that judgments were reversed, while they, perhaps, the power objected to is given, and defend it. disapproved the judgment of reversal. This concurrence of statesmen, of legislators, and of judges, in the same construction of the constitution, may justly inspire some confidence in that construction. In opposition to it, the counsel who made this point has presented, in a great variety of forms, the idea already noticed, that the federal and state courts must, of necessity, and from the nature of the constitution, be in all things totally distinct and independent of each other. If this court can correct the errors of the courts of Virginia, he says it makes them courts of the United States, or becomes itself a part of the judiciary of Virginia. In discussing the extent of the judicial power, the Federalist says, "Here another question occurs: what relation would subsist between the national and state courts in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter, to the supreme court of the United States. The constitution in direct terms gives an appellate jurisdiction to the supreme court in all the enumerated cases of federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circum- But, it has been already shown that neither of stance, and from the reason of the thing, it ought these consequences necessarily follows: The Ameto be construed to extend to the state tribunals.rican people may certainly give to a national tribuEither this must be the case, or the local courts nal a supervising power over those judgments of must be excluded from a concurrent jurisdiction the state courts which may conflict with the constiin matters of national concern, else the judiciary tution, laws, or treaties of the U. States, without authority of the union may be eluded at the plea-converting them into federal courts, or converting sure of every plaintiff or prosecutor. Neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the national and state systems are to But, certainly, the mind of the gentleman who be regarded as ONE WHOLE. The courts of the urged this argument is too accurate not to perceive latter will, of course, be natural auxiliaries to the that he has carried it too far, that the premises by execution of the laws of the union, and an appeal no means justify the conclusion. "A complete from them will, as naturally, lie to that tribunal consolidation of the states, so far as respects the which is destined to unite and assimilate the prin- judicial power," would authorize the legislature ciples of natural justice and the rules of na- to confer on the federal courts appellate jurisdictional decision. The evident aim of the plan of tion from the state courts in all cases whatsoever. the national convention is, that all the causes of The distinction between such a power, and that of the specified classes shall, for weighty public rea- giving appellate jurisdiction in a few specified sons, receive their original or final determination cases, in the decision of which the nation takes in the courts of the union. To confine, therefore, an interest, is too obvious not to be perceived by the general expressions which give appellate ju- all. the national into a state tribunal. The one court still derives its authority from the state, the other still derives its authority from the nation. If it shall be established, he says, that this court has appellate jurisdiction over the state courts in all cases enumerated in the 3d article of the constitution, a complete consolidation of the states, so far as respects judicial power, is produced. This opinion has already been drawn out to too great a length to admit of entering into a particular consideration of the various forms in which the counsel who made this point has, with much ingenuity, presented his argument to the court. The argument, in all its forms, is essentially the same. It is founded, not on the words of the constitution, but on its spirit, a spirit extracted, not from the words of that instrument, but from his view of the nature of our union and of the great fundamental principles on which the fabric stands. which shall be made in pursuance thereof, shall be the supreme law of the land." The clause which gives exclusive jurisdiction is, unquestionably, a part of the constitution, and, as such, binds all the United States. Those who contend that acts of congress, made in pursuance of this power, do not, like acts made in pursuance of other powers, bind the nation, ought to show some safe and clear rule which shall support this construction, and prove that an act of congress, clothed in all the forms which attend other legislative acts, and passed in virtue of a power conferred on, and exercised by congress, as the legislature of the union, is not a law of the United States, and does not bind them. To this argument, in all its forms, the same answer may be given. Let the nature and objects of our union be considered; let the great fundamental principles on which the fabric stands be examined, and we think the result must be, that there is no- One of the gentlemen sought to illustrate his thing so extravagantly absurd in giving to the court proposition that congress, when legislating for the of the nation the power of revising the decisions district, assumed a distinct character, and was reof local tribunals on questions which affect the na-duced to a mere local legislature, whose laws could tion, as to require that words which import this possess no obligation out of the ten miles square, power should be restricted by a forced construc- by a reference to the complex character of this tion. The question then must depend on the words court. It is, they say, a court of common law and themselves; and on their construction we shall be a court of equity. Its character, when sitting as a the more readily excused for not adding to the ob- court of common law, is as distinct from its characservations already made, because the subject was ter, when sitting as a court of equity, as if the powfully discussed and exhausted in the case of Martin ers belonging to those departments were vested in vs. Hunter. different tribunals. Though united in the same tribunal, they are never confounded with each other. Sd. We come now to the third objection, which, though differently stated by the counsel, is substantially the same. One gentleman has said that the judicial act does not give jurisdiction ia the case. Without enquiring how far the union of different characters in one court, may be applicable, in principle, to the union in congress of the power of exThe cause was argued in the state court, on a clusive legislation in some places, and of limited case agreed by the parties, which states the prose- legislation in others, it may be observed, that the cation under a law for selling lottery tickets, which forms of proceedings in a court of law are so totally is set forth, and further states the act of congress unlike the forms of proceedings in a court of equiby which the city of Washington was authorized ty, that a mere inspection of the record gives deto establish the lottery. It then states that the lot. cisive information of the character in which the tery was regularly established by virtue of the act, court sits, and consequently of the extent of its and concludes with referring to the court the ques-powers. But if the forms of proceeding were pretions, whether the act of congress be valid? whe- cisely the same, and the court the same, the dis ther, on its just construction, it constitutes a bar to tinction would disappear. the prosecution? and whether the act of assembly, on which the prosecution is founded, be not in itself invalid? These questions were decided against the operation of the act of congress, and in favor of the operation of the act of the state. If the 25th section of the judicial act be inspected, it will at once be perceived that it comprehends expressly the case under consideration. But it is not upon the letter of the act that the gentleman who stated this point in this form, founds his argument. Both gentlemen concur substantially in their views of this part of the case. They deny that the act of congress, on which the plaintiff in error relies, is a law of the United States; or, if a law of the United States, is within the second clause of the sixth article. In the enumeration of the powers of congress, which is made in the 8th section of the first article, we find that of exercising exclusive legislation over such district as shall become the seat of government. This power, like all others which are specified, is conferred on congress as the legislature of the union; for, strip them of that character, and they would not possess it. In no other character can it be exercised. In legislating for the district, they necessarily preserve the character of the legislature of the union; for it is in that character alone that the constitution confers on them this power of exclusive legislation. This proposition need not be enforced. The 2d clause of the 6th article declares, that this constitution, and laws of the United States Since congress legislates in the same forms, and in the same character, in virtue of powers of equal obligation, conferred in the same instrument, when exercising its exclusive powers of legislation, as well as when exercising those which are limited, we must enquire whether there be any thing in the nature of this exclusive legislation which necessa rily confines the operation of the laws made in virtue of this power to the place with a view to which they are made. Connected with the power to legislate within this district, is a similar power in forts, arsenals, dock yards, &c. Congress has a right to punish murder within a fort, or other place within its exclusive jurisdiction; but no general right to punish murder committed within any of the states. In the act for the punishment of crimes against the United States, murder committed within a fort, or any other place or district of country, under the sole and exclusive jurisdiction of the United States, is punished with death. Thus congress legislates in the same act under its exclusive and its limited powers. The act proceeds to direct that the body of the criminal, after execution, may be delivered to a surgeon for dissection; and punishes any person who shall rescue such body during its conveyance from the place of execution to the surgeon to whom it is to be delivered. Let these actual provisions of the law, or any other provisions which can be made on the subject, be considered with a view to the character in which congress acts when exercising its powers of exclusive legislation. are necessary to its complete and effectual execu. tion. If congress is to be considered merely as a local Whether any particular law be designed to ope. legislature, invested as to this object, with powers rate without the district or not, depends on the limited to the fort, or other place, in which the words of that law. If it be designed so to operate, murder may be committed, if its general powers then the question whether the power so exercised cannot come in aid of these local powers, how can be incidental to the power of exclusive legislation, the offence be tried in any other court than that of and be warranted by the constitution, requires a the place in which it has been committed? How consideration of that instrument. In such cases can the offender be conveyed to, or tried in, any the constitution and the law must be compared and other place? How can he be executed elsewhere? construed. This is the exercise of jurisdiction. It How can his body be conveyed through a country is the only exercise of it which is allowed in such under the jurisdiction of another sovereign, and a case. For the act of congress directs that "no the individual punished who, within that jurisdic-other error shall be assigned or regarded as a tion, shall rescue the body. Were any one state of the union to pass a law for trying a criminal in a court not created by itself, in a place not within its jurisdiction, and direct the sentence to be executed without its territory, we should all perceive and acknowledge its incompe. tency to such a course of legislation. If congress be not equally incompeten, it is because that body unites the powers of local legislation with those which are to operate through the union, and may use the last in aid of the first, or because the power of exercising exclusive legislation draws after it, as an incident, the power of making that legislation effectual, and the incidental power may be exercised throughout the union, because the principal power is given to that body as the legislature of the union. So, in the same act, a person who, having knowledge of the commission of murder or other felony on the high seas, or without any fort, arsenal, dockyard, magazine, or other place or district of country within the sole and exclusive jurisdiction of the United States, shall conceal the same, &c. he shall be adjudged guilty of misprison of felony, and shall be adjudged to be imprisoned, &c. It is clear that congress cannot punish felonies generally; and, of consequence, cannot punish misprison of felony. It is equally clear that a state legislature, the state of Maryland for example, cannot punish those who, in another state, conceal a felony committed in Maryland. How, then, is it that congress, legislating exclusively for a fort, punishes those who, out of that fort, conceal a felony committed within it? ground of reversal, in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, &c." The whole merits of this case, then, consist in the construction of the constitution and the act of congress. The jurisdiction of the court, if acknowledged, goes no farther. This we are required to do without the exercise of jurisdiction. The counsel for the state of Virginia have, in support of this motion, urged many arguments of great weight against the application of the act of congress to such a case as this; but those arguments go to the construction of the constitution or of the law, or of both; and seem, therefore, rather calcu lated to sustain their cause upon its merits, than to prove a failure of jurisdiction in the court. After having bestowed upon this question the most deliberate consideration of which we are capable, the court is unanimously of opinion that the objections to its jurisdiction are not sustained, and that the motion ought to be overruled. FOREIGN AFFAIRS. Though we do not wish that the REGISTER should much partake of the character of an ordinary newspaper, it is indispensable that foreign events should be carefully noticed, for the two following very important reasons:-1, a thousand persons, or more perhaps, receive this paper as a medium of news; 2, all others, (as well as these) desire to have a record of facts for future reference. To effect the general accommodation thus desired, we spend a great deal of time in making up our The solution, and the only solution of the diffi- foreign articles, and there is more substance in this culty is, that the power vested in congress, as the department of the REGISTER than in many of the legislature of the United States, to legislate exclu- daily newspapers published in the U. States-but sively within any place ceded by a state, carries publishing only once a week, it is impossible that with it, as an incident, the right to make that pow- we should convey such matters so promptly to our er effectual. If a felon escape out of the state in readers, as other papers of more frequent publica. which the act has been committed, the government tion can do: Yet even those accustomed to read such cannot pursue him into another state, and appre-papers will, no doubt, find many articles new to hend him there, but must demand him from the them, if they will look over our summaries, for they executive power of that other state. If congress are made up from a careful examination of many of were to be considered merely as the local legisla. these papers. We do not offer these remarks by ture for the fort or other place in which the offence way of apology-but to invite attention to a laborimight be committed, then this principle would ous part of the composition of this work, and, at apply to them as to other local legislatures, and this time, an important one. It is important that the felon who should escape out of the fort or all should know what is going on in the worldother place, in which the felony may have been though foreign proceedings may have much less committed, could not be apprehended by the mar-weight or effect upon our country than many supshal, but must be demanded from the executive of pose do belong, or are willing to attribute to them. the state. But we know that the principle does There has not been any arrival since our last not apply; and the reason is, that congress is not a local legislature, but exercises this particular power, like all its other powers, in its high character, as the legislature of the union. The American people thought it a necessary power, and they conferred it for their own benefit. Being so conferred, it carries with it all those incidental powers which with later news from Europe-but in the New-York and Baltimore papers we have had an opportunity to make a rich gleaning of facts, derived from the British journals received in these cities. We have the pleasure again to present several valueable state papers, and a large collection of items to shew the manner and the spirit of the times. It appears now to be pretty generally agreed to the actual cost of the goods is added 20 per cent. upon, that, at the date of the last advices, no battle had taken place between the Neapolitans and Austrians; but that a few days later intelligence would furnish the details of an expected engagement between the patriots and the slaves. if imported from beyond the Cape of Good Hope, Do. Duty. It is not worth while to say any thing of our wishes on the subject, or to offer further speculations on the prospect of events-except to say, the common belief is, that a very general war now rages, or is just about to take place, in Europe. France will not take a part in it if her government can avoid it -it appearing as if the existence of that government depended on the continuation of peace.England may or may not take a side in the affray, but it is probable that she will-yet which party she may support it is impossible to conjecture. We are anxious to learn the state of things with the emperor of Russia-it is on his conduct and condition, with that which shall be taken up by the British government, on which our hope of profiting by the contest in Europe must mainly depend. If Britain can remain neutral, her flag will enjoy the carrying trade, and if ingress and egress to the Russian ports can be had, Poland and the countries bordering on the Black sea, will furnish any quan-lions of revenue, there have been imported and tity of bread stuffs required by the belligerents compared with whose capacity to export them, that of the United States is of small amount. Polish wheat could now be delivered in England at 28. sterling per bushel, (not a great deal more than half the price which British wheat sells at, on account of the foreign import being prohibited), and that shipped from Odessa might be furnished at about the same price. To what an extent the spirit of revolution and spread of war will prevail in Europe, no man can tell-but in the present condition of that quarter of the world, it would be very unsafe to calculate that we shall have the "commercial prosperity," of which we once boasted so much or that the time will be brought about by foreign events, in which (as formerly) every citizen of the United States, willing to labor, can find a sufficiency of profitable employment. We must yet look at home: and, though we may not be immediately benefitted by a general war in Europe as much as many have hoped for, still, we we may have better reasons to rejoice in the march of mind and progress of liberal ideas, which will finally be of greater advantage to us than any temporary excitement which that event can bring about in regard to our commerce or in a demand for our commodities. Do. 8,593,000 1818, 58,661,000 11,947,000 1819, 39,885,000 8,076,000 Total of three years 140,362,000 28,616,000 Then it appears that, to raise twenty-eight mil consumed in the country one hundred and forty millions of foreign ad valorum goods-for every dollar of revenue five dollars is sent out of the country: and if the five dollars is not sent out of the country to bring in the foreign goods, the one dollar will never come to the public treasury. Here is the oppression-when it is persisted in by the government, in despite of light and knowledge, it is wilful and wanton, and, if not corrected, becomes criminal. There is no apology for it, even if this system would produce a revenue adequate to the public expenses--for it compels the people to im port what the country could make within itself: it creates a miserable dependence of the people on foreign markets and foreign supplies: a degrading dependence of the government on foreign nations for its revenue-the very nations too, who are our most zealous rivals and have been our inveterate enemies. But when even this will not save us from the humiliating necessity of borrowing to meet the deficit of revenue, when impost is as inefficient as oppressive, as degrading to the national character as ruinous to the people's interest, it becomes a high crime and misdemeanor in those who have the regulation of our fiscal concerns to persist in such a system, and withhold the recom mendation of one which will alike relieve public: and private embarrassment. Though it is a painTHE MEANING OF WORDS.-This mystical word re-ful it is an imperious duty, to oppose what is lead. venue is not yet sufficiently understood. One de- ing this fine country to a scene of distress hitherto finition, or one explanation, will not suffice; it must without an example. Error must be exposed, falbe illustrated in all its bearings, explained, and lacies must be detected, systems must be examinre-explained: like physicians, we must repeat the ed, the rotten parts dissected. However low it dose till it has the desired effect-and it must be may fall, or however high it may reach, public administered in all the changes and compounds of opinion must and will strike at mal-administration medicine. My text is, impost is oppressive on the the meaning of words shall be practically underCountry: my proof is in the public documents, in stood-the application of principles shall be known. the nature of the system, and will soon be in the I cannot pledge that government will make it uniknowledge of every man in the country. In dis- form, but can and do pledge myself that if those cussing subjects of this kind there are some words whose duty it is to devise and recommend proper which must be used-as they are technical ones they measures, do not faithfully do that duty, that officers must be explained;-for I do not write for any but shall neither sit on cushions of down or repose on the plain men of the nation. Impost is a duty or beds of roses If they choose to amuse the people tax on foreign articles imported into the United with gay and enchanting visions for the future, and, States-they are of two kinds, ad valorum and spe- overlooking actual and visible distress which per cific. An ad valorum duty is a duty of so much pervades the whole country, delude the sufferers with cent. on the value: for instance, the duty on linen is delightful anticipations for what is to come, they 75 per cent, ad valorum, which is thus ascertained: have an awful, nay, a dread responsibility to meet. |