where the meaning of a particular passage is disputed. We are not to be understood to say, that these Journals are implicitly to be relied on in every instance. But certainly, where by collating one act or resolution of that body with another, we can arrive at a probable reason for the adoption or rejection of a particular proposition, we ought not in a case of doubt to desire higher evidence. If we test the present question by these rules, we think it sufficiently clear, that the jurisdiction of the Supreme Court, "in all cases of law and equity arising under the Constitution," was not intended to embrace the case upon which we may soon be at issue with the General Government. We proceed to our proofs.

Mr. Randolph, on the. 29th of May, as soon as the Convention was organized for business, submitted his fifteen resolutions. That relating to the judiciary was on the 4th and 5th of June called up for consideration, and after some alterations, the further consideration of it was postponed. On the 13th, Mr. Randolph, seconded by Mr. Madison, moved, that his own resolution should be altered so as to read thus: "that the jurisdiction of the national judiciary shall extend to cases which respect the collection of the national revenue, impeachments of any national officer, and questions which involve the national peace and harmony." This resolution was carried. (Jour. 121.) On the 18th of July this resolution was again altered, so as to extend the jurisdiction to "cases arising under laws passed by the general legislature, and to all such other questions as involve the national peace and harmony”—passed unanimously. (Jour. 189.)

Our author," of Caroline," seems to regard these questions, "involving the national peace and harmony," as intended to embrace disputes concerning powers between the State and Federal Government. The jurisdiction of the judiciary being extended by the Constitution to cases of revenue, but not to questions involving the national peace and harmony is, with him, conclusive evidence, that such a power was rejected by the Convention. We do not altogther agree with our author. Whatever might have been the first intentions of Messrs. Randolph and Madison, there could be no doubt as to the meaning of the resolution when, in consequence of some opposition, Mr. Randolph moved himself to amend it on the 13th of June. The Convention, at that time, must have distinctly understood, that questions" which involved the national peace and harmony" did not include a power to decide disputes between a State and the General Government, but were confined to cases be

tween foreigners and our citizens, and to controversies between States. This is evident from several considerations.

First: Mr. Randolph on submitting his own amendment, explained its meaning, by observing "the difficulty in establishing the powers of the judiciary-the object, however, at present, is to establish this principle, to wit, the security of foreigners where treaties are in their favour, and to preserve the harmony of States and that of the citizens thereof. This being once established, it will be the business of a sub-committee to detail it: and, therefore, he moved to obliterate such parts of the resolve, so as only to establish the principle, to wit, that the jurisdiction of the national judiciary shall extend to all cases of national revenue, and questions which involve the national peace and harmony-agreed to unanimously." (Yates' Debates, 120.)

The second circumstance is, that the resolution thus explained was adopted unanimously on the 13th of June, in committee of the whole, and again, unanimously on the 18th of July, in the house, which could not have been the case had the federal party conceived, that under such expressions, the sovereign rights of States were to be submitted to the tribunals of justice; and more particularly after the federal had been substituted for the national form of government by restoring on the 7th of July equal suffrage in the Senate, which had been previously lost, and revoking on the 17th the negative given to Congress over State laws on the 31st of May.

The third circumstance to shew, that cases involving the national peace and harmony did not include the power in question, is, that in the draft of the Constitution reported on the 6th of August, in conformity with the resolutions of the Convention, every case connected with the peace and harmony of the nation is specially provided for, but not a syllable is said of controversies "between a State and the United States," or even of controversies "to which the United States shall be a party." The Convention deliberates from the 29th of May to the 26th of July. It settles the principles of the new government and defines its general powers. These powers are contained in twenty-three resolutions. It appoints a committee of detail, and confides to them these resolutions, in order that a form of a Constitution might be prepared and reported to the Convention. It adjourns for ten days, for the express purpose of giving the committee full time to prepare their report. Mr. Ran dolph is an efficient member of this committee. His own resolution is before his eyes, and the committee have heard all the debates and know the intentions of the Convention. They report a Constitution. In the judicial article they enumerate

nine classes of cases for the cognizance of the Courts. They provide, under the auspices of the Senate, a special court for disputes between two States respecting jurisdiction or territory, but there is not the most distant allusion to a controversy between a State and the United States. There is yet another circumstance: Even the words, "cases arising under the Constitution," the words which Mr. Webster magnifies into a power to decide great conflicting claims of sovereignty, are not to be found in this reported draft, drawn up with so much care. Could the omission to provide for this special controversy have been an oversight? No! Mr. Randolph and the committee knew that this was not a case for a court of justice. It was not within the definition which he (Mr. Randolph) had given of cases "involving the national peace and harmony." They had, moreover, observed, that on the 15th of June a proposition was before the house in Mr. Paterson's resolutions, proposing "that provision ought to be made for hearing and deciding apon all disputes arising between the United States and an individual State respecting territory." They had witnessed the fate of this proposition in the rejection of all Mr. Paterson's resolutions on the 19th of June. But they still had an opportunity of making provision for such a dispute about territory, if they believed that it would be agreeable to the Convention, for Mr. Paterson's resolutions, though rejected, were, by request, at last permitted, together with all other plans of government and papers to go to the committee. And yet the committee introduce no such clause in the Constitution. It cannot be believed that these omissions in the reported draft were acci dental. Had the design of the Convention been to have referred such an important question, as a dispute between a member of the league and the federal head to the the Supreme Court, it is not probable that it could have passed without debate, or that the subject of debate should have made so slight an impression on the memories of the members of the committee as to cause such an oversight. The committee taking no notice of the subject establishes, at least, this important fact, that when the Convention had finished its principal labours, by fixing upon the great principles of the government, and had resolved to confer on the judiciary the cognizance of all questions involving the peace and harmony of the confederacy, they purposely excluded the cognizance of controversies between a State and the United States. Let us now proceed with the Journals, and discover, if we can, whether this decision was afterwards altered.

The draft of the Constitution was now (6th August) before the Convention, and was to be the text of debate. The judici

ary article was not called up for consideration until the 27th. But in the meantime, (the 20th) just after the legislative powers had been considered, many additional powers were proposed to be conferred, and amongst them we find the following: "The jurisdiction of the Supreme Court shall be extended to all controversies between the United States and an individual State, or the United States and the citizens of an individual State." This proposition, as well as all the others, was referred, nem. con. to the committee of five. On the 22d, the committee report sundry alterations to be made in the Constitution, and amongst them, that there should be inserted after the word "controversies," in the judicial article, these words, "between the United States and an individual State, or the United States and an individual person." This report, on being called up, was postponed, in order that the members might furnish themselves with copies, but we cannot discover that the consideration of it was ever again called up. On the 27th, however, the judiciary article came up for the first time, and in its proper turn, when the words "controversies to which the United States shall be a a party," were, on motion, inserted without opposition; and on the same day, "cases arising under the Constitution," were also added without opposition.

The insertion of the clause, "controversies to which the United States shall be a party," may, by some, be regarded as a substitute for the report of the committee, which gave jurisdiction in disputes, either with States or individuals. This inference is not admissible. The saving of a few words would be but a poor apology for that want of precision which now appears in the clause, compared with what it would have possessed, as originally written. The great object of the proposition was clearly a controversy between the United States and a State. There was no necessity to provide for the other case. To give jurisdiction in a case between the government and an individual as plaintiff, (for a government cannot be defendant without its consent) was a matter of course, and might be posed whenever the clause should, in its turn, be called up for consideration. But the first part of the proposition was on a different footing. It was a subject for grave deliberation. It was made a full week before the proper time; no doubt, with the intent that the report of a committee, to whom it was to be referred, might be received in time for discussion when the judiciary article should be before the House. The report, however, is not called up, but a clause is proposed omitting disputes with States. The difference between the two clauses is prodigiously wide-so very wide, that, in the one case, he who runs

pro

may read, whilst in the other, there is so much of the opposite conviction, that even Mr. Webster, with all the legal acumen for which he is distinguished, would not hazard his reputation by noticing the clause as embracing the power contended for. In the one case, a State might be bound to submit controversies in law and equity to the Supreme Court. In the other there is not a single word to bind a State. It may be observed, that where the intention was, that a State should have the benefit of the Federal judiciary, this intention is clearly written down. Had there been any regard to economy in language, the simple expression of "all controversies to which a State shall be a party, excepting with its own citizens," would have saved two or three whole lines. But precision and clearness was to be preferred to ambiguous expressions, and therefore it is, that the omission in terms of a power to decide controversies between the United States and a State was wilful. It was intended to dispense with the first part of the report, but to agree to the last-to include suits with citizens, but to exclude disputes with States. But still, with this intention, the report as it stood was most awkwardly expressed-" controversies between the United States and an individual person." This was not sufficiently explicit. The government might have to institute a suit against an incorporated company of whom it may have purchased land for its fortifications or public buildings, the title to which may have been defective. This might be said not to be a controversy with an "individual person.' The government might be involved in a suit with a land company holding under a State. And it is possible, that provision was intended to be made for some particular.case, where a State might be willing to submit a dispute, respecting territory to the Supreme Court, as plaintiff or defendant. But, be this as it may, there was a necessity to alter the phraseology for the other reason stated.

But the first part of the proposition, though not taken up in the consideration of the judiciary article was nevertheless not forgotten. On the 30th of August, in considering that clause of the Constitution, which provides that Congress might dispose of and make regulations for the territory, or other property of the United States, "and that nothing in the Constitution should be so construed as to prejudice any claims of the United States, or of any particular State," an amendment was proposed in these words-" but all such claims of the United States, or of any particular State, may be examined into and decided upon by the Supreme Court of the United States." Negatived, eight States to two. This was the third time that a proposition was before