If

the house to provide specifically for the settlement of a controversy between the United States and an individual State, and yet we see no such controversy hinted at in the Constitution. The conclusion from all these facts is undeniable. There must have been an objection to give jurisdiction in such a case. there existed no objection, it was in the power of the majority to have expressed the grant in any terms they pleased. There is no unqualified grant of such a jurisdiction, nor can it be implied from the phraseology.

In the reported draft of the Constitution there is a special mode provided for adjusting disputes with States. In the Constitution these disputes are referred to the judiciary. As long, however, as the idea was retained of having these national disputes at home submitted to an arbiter under the direction of the Senate, there was a mode of proceeding prescribed at great length. And this causes us to repeat, that if in discussing Mr. Randolph's resolution, as to the powers of the Supreme Court, there had been any intention to make that Court the arbiter, in disputes respecting the boundaries of the two jurisdictions, it is most unaccountable, that not only no special mode of proceeding in such a case should be submitted, but that not even a hint should be found in that draft of the Constitution to warrant even an inference to that effect. Surely, if after the great struggle which had been made to give the General Government the power of construing the articles of union by a negative upon the acts of State legislatures, and the defeat of the consolidation party, any idea had been entertained, that the Federal judiciary should exclusively construe those articles, and settle disputes between States and the United States, the power would have been expressly provided in the Constitution as then reported. Had Mr. Randolph's resolution, unanimously adopted on the 18th July, extending the judicial power to questions involving the national peace and harmony related to a controversy between a State and the United States, how is it to be explained, that in giving jurisdiction to the Supreme Court, in all the cases supposed to involve the national peace and harmony, the committee (Mr. Randolph being present,) should, after an uninterrupted sitting of eight days, provide for all controversies between foreigners and our citizens, and for controversies between two States; and, that whilst this committee was specially engaged in providing, at great length, and by many details, the manner in which controversies between States should be adjusted, it should not once have occurred to them, and to Mr. Randolph in particular, that there was yet an higher controversy to be provided for, and one more likely to

occur than that between States, to wit, a controversy between a State and Congress? How is it to be explained, again, that in all the subsequent deliberations of the Convention, no proposition embracing, specifically, the case before us, should be received, when reported on, but always rejected when proposed. With the constant, though unfounded, fears in the minds of so many delegates, that without some supremacy in the federal head, there would be an unceasing and most unhappy clashing of interests-with this spectre of conflicting and discordant jurisdictions constantly flitting before their imaginations, that they should provide no method of settling the boundaries of the respective jurisdictions, if such had been the result of the previous deliberations, can be explained in no other way, than that it was a case which neither the wisdom of that or any other age could provide for. It was impossible, as was observed by Mr. Madison, in advocating a negative upon State laws, "that a tribunal could be found who could impartially determine the line of State powers, when drawn in doubtful cases?"-(Yates' Deb.)

The words of the Constitution do not warrant the construction contended for. The controversies contemplated were not national disputes, but cases in law and equity, such as might arise between the government and its citizens, on merchants' bonds, &c. These words, "law and equity," were introduced as an amendment, at the same time that the jurisdiction was given in cases to which the "United States shall be a party." The word controversy, it may be observed, is never used in the Constitution to mean other than a case in law or equity. This is evident from the use of the term on occasions where it could not possibly have any other meaning. For instance: "Controversies, 1. Between a State and citizens of another State; 2. Between citizens of different States; 3. Between citizens of the same State, claiming lands under grants of different States; and 4. Between a State or the citizens thereof, and foreign States' citizens or subjects." What controversies can possibly exist in these four cases, other than cases in law and equity? Again, in the fifth instance: "Controversies between two or more States." These chiefly relate to disputes as to territorial limits. By consent they might become as much cases of law as those "between citizens of the same State claiming lands under grants of different States," They all equally involve rights, as primarily derived from the British Crown, and this no doubt was the reason why these two classes of cases were transferred from the special tribunal, which was first proposed to meet under the auspices of the Senate, to the cognizance of the Supreme Court, which, in such a case, being as indifferent to one State as to

another, would, therefore, be an impartial tribunal. It was a case for judicial cognizance. There are but six instances in which the word "controversy" is used, and if, in five of these, it can possibly mean nothing else than suits in law or equity, what is the clear inference? Indubitably, that in the sixth case, to wit, "controversies to which the United States shall be a party," it must have the same meaning, according to every fair rule of construction. As to what is meant by a case in law or equity, we desire no better definition than that given by Chief Justice Marshall himself, in his celebrated argument in Congress, on Mr. Livingston's resolutions, relative to Jonathan Robbins. "By the Constitution, the judicial power is extended to all cases in law and equity, arising under the Constitution, laws and treaties of the United States, but not to all questions under the Constitution, &c. A case in law or equity was well understood and of limited signification. It was a controversy between parties which had taken a shape for judicial decision. If the judicial power extended to every question under the Constitution, it would involve almost every subject for legislative discussion and decision. To come within the description of a case in law or equity, a question must assume a legal form for forensic litigation and judicial decision. There must be parties to come into Court who can be reached by its process and bound by its power, whose rights admit of ultimate decision by a tribunal to which they are bound to submit."-(Bee's Adm. Rep. 278.)

Those who insist that this Court was contemplated as the arbiter, because its jurisdiction "extends to cases of law and equity arising under the Constitution," are under an obligation to shew that its jurisdiction, in these cases, is exclusive of the State courts, otherwise a State court will be as much the arbiter under the Constitution as the Supreme Court. The Constitution cannot contemplate more than one arbiter. The concurrent jurisdiction of the State courts, in all civil cases of federal cognizance, is admitted in the "Federalist," (No. 32.) and by the Chief Justice and Mr. Madison in the Virginia Convention. The Supreme Court, (Houston v. Moore, I Wheat. 48, and in Cohens v. Virginia,) also declares the jurisdiction to be concurrent. There is no power delegated to Congress, legislative or judicial, which can be deemed exclusive in any other cases, than where the exclusive power is granted in express terms, or a similar power to that granted is prohibited to the States. There is a third case, it is true, stated in the "Federalist," and that is, where power is given to Congress, and the exercise of VOL. VI.-No. 12.

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a similar authority in the States, "would be absolutely and totally repugnant." Not, however, such an exercise, says Mr. Hamilton, as "might be productive of occasional interferences in the policy of any branch of administration, but that which would imply a direct contradiction, or repugnancy in point of constitutional authority."—(Fed. No. 82.) He instances the power to establish an uniform rule of naturalization throughout the United States." But in the judicial article there is not a word which looks to uniformity of legal decision in the cases of federal cognizance, except in the Federal courts, or which gives exclusive jurisdiction to those Courts, but there are words which directly imply the contrary. There is original jurisdiction given to the Supreme Court, and there is appellate jurisdiction in reference only to its own inferior tribunals; but there is no jurisdiction given "exclusive of the State courts." These terms, original, appellate and exclusive, are all technical expressions, having different meanings; hence, if exclusive jurisdiction was intended to be given, in any case whatever, why was the term purposely omitted? Expressio unius est exclusio alterius. The Convention did not choose to confer such a jurisdiction. In the Confederation, all the powers given to Congress were "sole and exclusive." The present Constitution giving Congress power to legislate for the district of Columbia, uses the term “exclusive legislation." If, in conferring powers to raise armies, coin money, &c., it did not in terms make that power "sole and exclusive," it did what was equivalent to it. A prohibition was laid upon the States not to exercise similar powers. If, in the regulation of commerce, and in the enacting of naturalization and bankrupt laws, there was no exclusive power given in terms, or no prohibition laid upon the States, there will yet be found in the Constitution, words in abundance which manifestly shew, that commercial regulations and naturalization and bankrupt laws were to be uniform throughout the United States. But where is the word in the third article implying exclusive cognizance or uniformity of decision? Mr. Hamilton, fully aware that the concurrent jurisdiction of the State courts was inherent, and that the opposite construction would amount to "an alienation of State authority by implication," then claims the appellate power, as a substitute for exclusive jurisdiction, founding his claim upon no words amounting to an express grant, but takes up the idea that it is "the objects of appeal, and not the tribunals," which were contemplated in giving the appellate jurisdiction, a view, this, which we hope we have sufficiently confuted in our remarks on the same argument urged by the Court. If

the Constitution did not intend, in the cases of federal cognizance, to confer jurisdiction exclusive of the State courts, it must have been from the reliance which it placed on these Courts to conform to the Constitution in the few cases which probably would be brought before them, and to which they were to be bound by their oaths. It was a respect paid to the independence of these tribunals. But if exclusive jurisdiction was denied to the Federal courts, in order to give to them the appellate power in the same cases, this not only amounted, in substance, to the exclusive jurisdiction intended to be refused, but as to its consequences to State sovereignty, it was infinitely worse. The State courts, in a system where mutual independence was to be the distinguishing feature, could not be degraded by a want of cognizance of the cases of Federal cognizance, for as to all the other jurisdiction retained, they would still be independent. But in the power of control over them, which a right of appeal gives, these Courts wear the badge of inferiority and dependence, contrary to the whole scheme and theory of the Constitution, which admits of no subordination of a State authority to a federal in any case where it has power to act on the subject, unless in the two instances specified. The difference in the argument is this: A concurrency of jurisdiction is admitted by the "Federalist," also by the dicta of the Supreme Court on several occasions. It is recognized again in the practice of the Court, when it is considering appeals from the State courts, for if the judgments of these Courts be right, they are affirmed, thus admitting the jurisdiction: If wrong, they are reversed, not because the proceedings have been coram non judice, but because they were wrong; and in issuing the mandate to alter the judgment, the jurisdiction is again admitted. The concurrent jurisdiction of the State courts is thus clearly established. Now, upon what footing is the opposite power placed? It is claimed by implication. The State courts are to be regarded as inferior, and thus forming part and parcel of the judicial power of the United States, contrary to the express words of the Constitution, that the judicial power shall consist only of the Supreme Court and of such "inferior tribunals as shall be constituted by Congress," and held by federal judges.

Mr. Webster in the debate on Foot's resolution, ventures not to notice, much less to trust an argument on the words " controversies to which the United States shall be a party." His whole dependence is on the cognizance given in "cases arising under the Constitution." This, in conjunction with the declaration, that the Constitution is to be the supreme law of the land, he regards as "covering the whole ground." The importance