to a common justice of the peace, if the Federal authorities were to be the exclusive guardians of the Constitution, and the State courts not to decide finally on all cases arising under it, between its own citizens. If they are dependent tribunals, there must soon be an end of State sovereignty. There is then nothing supreme in the government but the Federal judiciary. It possesses that very negative upon all State laws, and the acts of every State authority or department which was proposed and rejected in the Convention.

The Court admits, that the sixth article declaring "that the Constitution, &c. shall be the law of the land, and that the judges in every State shall be bound thereby," &c. is a proof, that the framers of the Constitution contemplated "that cases arising under the Constitution, laws and treaties of the United States, and within the judicial cognizance of the United States, not only might, but would incidentally arise in the State courts, in the exercise of their ordinary jurisdiction," and upon this admission, it considers that if a State court is already in possession of a case of this description, and the Supreme Court cannot remove the cause, or have appellate jurisdiction, it could have no jurisdiction at all, though "to all these cases the judicial power by the very terms of the Constitution is to extend." True; but this argument serves no other purpose than to assert, that the Federal courts ought to have jurisdiction, exclusive of State courts in all the cases of federal cognizance, for no other reason than because in terms the judicial power is expressed to extend to such cases. To contend for the power of removal or for appellate jurisdiction, in any form in any case, is unquestionably to contend in substance for exclusive jurisdiction in that case. The mind of man can conceive of no difference excepting in name between the one and the other. Strip the decisions of the Supreme Court of all their metaphysical reasoning, and every man of plain sense must perceive that the claim of that Court, whatever may be the form which it assumes, is truly for exclusive jurisdiction, a proposition which cannot be sustained. The Constitution contains not a word upon which an implication can be raised, that such was the intention of the Convention. It is, therefore, altogether inadmissible. It is only in criminal causes or cases, arising under its revenue laws, that there is no concurrence of jurisdiction, and this upon the universally acknowledged principle, that the Courts of one sovereignty never take cognizance of cases arising out of the criminal or revenue laws of another. Also, in any case "created by the Constitution and not comprised by the anterior State sovereignties," the Federal Court

may have some claim, by implication, to exclusive (not appellate) jurisdiction, but in no others. We have no objection to a power so harmless as this, but to yield to that Court exclusive jurisdiction, where the articles of Union are to be construed, is a virtual surrender of our independence.

And what, after all, is the principle upon which the necessity of this right of appeal is urged by the Court in the case before us. Certainly neither more nor less than this, that a Constitution being "framed for ages to come," ought to be so construed as to be rendered a perfect instrument, providing for all possible cases or emergiencies that might arise; a construction, this, which might be admissible enough in a consolidated government, where there are but few limits to the sovereign power bestowed on its legislature, but is totally irreconcilable with the anomaly of the Federal Government. Did our Constitution come from the hands of its authors without fault or blemish? Its fifth article promptly answers No. In prescribing the mode of amendments, it distinctly pronounces that time and experience were expected to point out its imperfections. These were to be remedied, not by the Supreme Court, but by the SOVEREIGN STATES. There can be no doubt, that under all the plans and modifications of plans of government submitted to the Convention, certain evils or inconveniences were foreseen by their authors or advocates, but to which (they insisted) it was better to submit, rather than by an opposite plan, to surrender the positive and numerous countervailing advantages. It cannot be imagined for a moment, that the present plan was adopted under any other conviction. The members of the Convention probably were as much aware, as is the Supreme Court, of the importance and necessity of an uniformity of judicial decision on all questions arising under the Constitution, laws, and treaties of the United States. The discussion of the subject was unavoidable, as an incident to the great question which so long agitated that body, whether all the departments of the General Government should be co-ordinate with, or supreme over the like State authorities. The necessity of uniformity must have been as powerfully enforced in the Convention, as it has been by the Supreme Court, and its members, no doubt, felt the full force of all the considerations now urged by that Court. They established this uniformity as far as it was practicable, consistently with the sovereign rights of the States, and with that co-ordination of State and federal authority, which they had previously decided to make the foundation of the fabric, and which the deputies of six States out of VOL. VI. NO. 12.

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eleven, were resolved never to surrender. The judicial article, as to uniformity of decision, approaches the great object for which uniformity was desirable, as nearly as human provisions can be expected to approach it. There is one Supreme Court to correct the inferior tribunals, and these last Congress may constitute without limitation as to numbers. These may be distributed all over the country, so that foreigners, particularly, may have the facility at all times, to institute their suits in these Courts. The provision is sufficiently extensive to ensure uniformity of decision in ninety and nine hundredths of cases that may occur in the United States. This is approaching near enough to perfection in such an anomalous structure of government as the Federal Constitution presents. Had the Chief Justice been in the Convention, and suggested that one case was not provided for, the very case instanced by the Court, of a citizen convicted of a crime, and likely to suffer death under an ex post fucto law of his own State, than which no case can be stronger;--had he urged, with all the power of his eloquence, that without some power in the United States' courts to rescue from oppression, a citizen so situated, the Federal Constitution might be outraged with impunity; we have only to observe, that, if the answer had not been in the same spirit, in which it was said of old, "that no law against parricide would be wanted in the republic," it would, at least, have been this-the Constitution cannot provide for every extreme case: the independence of the State judiciary we have already decided to be necessary to State independence: the State judges are entrusted with the construction of the Constitution: if a State legislature shall be ignorant enough to pass such a law, and judges shall be wicked enough to enforce it, and a State governor so infamous as not to extend his pardon, there is no remedy for the unfortunate victim. But we would ask whether it is not possible that the same case may happen in the Federal courts. Congress may pass an ex post facto law, and a citizen may be capitally convicted under it, by corrupt federal judges, and the president too may refuse his pardon. Can the Supreme Court point out the remedy for such a gross violation of constitutional rights? Would it admit a State court to take the prisoner from the custody of its marshal by an habeas corpus? ? Cases may possibly arise of violations of the Constitution, which the jurisdiction of the United States' courts cannot possibly reach. Amongst those put at the bar in Cohens v. Virginia, a very striking one is, that of a State levying a duty on exports collecting the money, and placing it in her treasury. The question asked was, could the citizen who paid the export

duty, obtain relief in the Federal court? The Chief Justice

answers:

"Perhaps not. Without, however, deciding such supposed case, we may say, that it is entirely unlike that under consideration. The citizen who has paid his money to his State, under a law that is void, is in the same situation with every other person who has paid money by mistake. The law raises an assumpsit to return the money, and it is upon that assumpsit that the action is to be maintained. To refuse to comply with this assumpsit, may be no more a violation of the Constitution, than to refuse to comply with any other; and as the Federal Courts never had jurisdiction over contracts between a State and its citizens, they may have none over this."-6 Wheat. 402.

We cannot but express our measureless surprise at this reasoning. It requires no comment. If this case, where relief is demanded against a violation of one of the expressed prohibitions of the Constitution, is not, of all others, a case arising under the Constitution, and yet without the power and jurisdiction of the Court, there is nothing that we can say that can make it plainer.

It is in vain to dissemble. The principles upon which the Supreme Court assert its claim to construe, exclusively, the articles of our Union, are such as cannot with safety be admitted by the State courts, unless they consent that the Constitution is but the outline or skeleton of the powers granted, and that it was a part of the design that the Supreme Court should give it what body and form it should please. It must be remembered, that judicial usurpations are of that character that their approaches are like softly stealing steps. It is a power exercised upon separate cases, occurring at different periods, and hence there can be no common cause amongst such as are the subjects of its oppressions. It is its unobserved movements which give to this species of usurpation its most formidable power of attack. Mr. Jefferson never uttered a greater truth, than when he compared the Federal judges to "a subtle corps of sappers and miners, constantly working under ground, to undermine the foundation of our confederated fabric." We know of no mode of arresting the unceasing attempts of the Supreme Court to amplify its jurisdiction, than for the State tribunals, faithfully and fearlessly, to take their stand at once, and to resist such inordinate claims to judicial supremacy. Fiat justitia, ruat cælum. Let each State court, hereafter, refuse to certify the record, and let the records by law, in these cases, be placed at the disposal of the judge, and the public would soon discover that the empty title to supremacy is one which may be claimed,

but can never be enforced. Let South-Carolina give the example. The crisis demands it. Let some member of Congress, at the same time, move for a repeal of that part of the judicial act of 1789 which confers this appellate power. It is a reproach to the intelligence and patriotism of the States, that in the archives of Congress, a statute should be found giving supremacy, and that too in a very odious manner, to one department, in the complex machinery of government, over all others, when there are so many evidences, not in our history alone, but in the instument itself, that the Constitution and constitutional laws were only to be supreme, and that for the preservation of them the two governments were made co-ordinate, neither dependent on the other.

From these views-from the perpetual tendency of power, as of wealth and ambition to extend its limits-from the dependence of this branch of the government on the Federal legislature-from the control which, in fact, by appointment, it can exercise over it, and from the examples of usurpation over the State tribunals, we cannot consider it as a tribunal sufficiently impartial, to try questions of authority and jurisdiction, where a State and the Federal Government come into collision.

2. But has the Supreme Court jurisdiction, under the Constution, in such a case? We distinctly say, No. In the judicial article, we cannot discover a single expression which confers such a power. The judicial power is "to extend to all cases of law and equity arising under the Constitution." These words have technical significations, and refer, in no way, to the question of jurisdiction of the sovereign and reserved rights of the States. It is easy enough to discover how, under the laws of so extensive a government, cases of law and equity may arise, and we can, as easily, imagine how, under the operation of its revenue laws, its laws on the subject of bankruptcy, and of the regulation of commerce, and on many other subjects committed to its care, such cases may occur-cases too, "in which the United States shall be a party;" but these are not the cases in which the question of the rights of the States are necessarily involved. It is true, that in discussing a revenue law, or a law for the sale of lottery tickets, lawyers, whose dialectical resources may be said to be unbounded, may bring up any imaginary case or doctrine, and force a discussion in the same manner, as on a motion to suspend the surveys of land; all points connected with the administration of our government, in times past, present and to come, may be arrayed in the halls of Congress. In this manner, many principles have been agitated before the Supreme Court of the United States, and the