gold than before the arrival of the troops. This proceeds Government; and the convention, accordingly, by the from their residence within the country, intimate acquaint- following clauses of that instrument, created such a deance with it, and other means of avoiding the operation of partment, and invested it with powers therein specified. the troops. The fear of the whites had restrained them ARTICLE III. previously. SEC. 1. The judicial power of the United States shall The writer of the enclosed copy of a communication be vested in one Supreme Court, and such other inferior without signature is known, and is entitled to credit. courts as Congress may, from time to time, ordain and The President is assured that, whatever measures may establish. The judges both of the supreme and inferior be adopted by the State of Georgia in relation to the Che-courts shall hold their offices during good behavior, and rokees, the strongest desire will be felt to make them ac- shall, at stated times, receive for their services a compencord with the policy which has been adopted by the pre-sation; which shall not be diminished during their continusent administration of the General Government upon the ance in office. same subject.

Very respectfully yours, &c.

GEORGE R. GILMER.

To the PRESIDENT of the U. S.

WAR DEPARTMENT, Sept. 5, 1814.

"SEC. 2. The judicial power shall extend to all cases arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and SIR: Your letter of August 10th has been received. The maritime jurisdiction; to controversies to which the Unitavowed objects of the enemy, and the recent outrages of ed States shall be a party; to controversies between two all principles of civilized warfare, warrant a belief and ex-or more States; between a State and the citizens of anopectation that they will make their devastations as exten- ther State; between citizens of different States; between sive as their means will enable them. citizens of the same State, claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens, or subjects.

Your most prompt attention and vigorous operations will be required in the lower country. All the friendly Indians should be organized, and prepared to co-operate with "In all cases affecting ambassadors, other public minisyour other forces. There appears to be some dissatisfac-ters, and consuls, and those in which a State shall be a party, tion among the Choctaws; their friendship and services the Supreme Court shall have original jurisdiction. In should be secured without delay. The friendly Indians all other cases before mentioned, the Supreme Court shall must be fed and paid, and made to fight when and where have appellate jurisdiction, both as to law and fact, with their services may be required. such exceptions, and under such regulations, as the Congress shall make."

It is desirable that you should repair to New Orleans as soon as your arrangements can be accomplished in the other parts of the district, unless circumstances should render another point more eligible. I have, &c. JAMES MONROE.

To Gen. ANDREW JACKSON.

AMENDMENT--ARTICLE XI.

"The judicial power of the United States shall not be construed to extend to any suit, in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State."

The twenty-fifth section of the act to establish the judicial courts of the United States, is in these words:

"SECTION XXV.

REPORT UPON THE JUDICIARY. Mr. DAVIS, of South Carolina, from the Committee on the Judiciary, to which was referred a resolution instructing that committee to inquire into the expediency "A final judgment or decree of any suit, in the highof repealing or modifying the twenty-fifth section of an est court of law or equity of a State, in which a decision act, entitled "An act to establish the judicial courts of in a suit could be had, where is drawn in question the vathe United States," passed on the 4th of September, lidity of a treaty, or statute of, or an authority exercised 1789, report: under, the United States, and the decision is against their That the committee, profoundly impressed with the im- validity; or, where is drawn in question the validity of a portance of the matter referred to their consideration, statute of, or an authority exercised under, the United have bestowed upon it that deliberation it so eminently States, and the decision is against their validity; or, where required; and the investigation has resulted in a solemn is drawn in question the validity of a statute of, or an auconviction that the twenty-fifth section of an act of Con-thority exercised under, any State, on the ground of their gress, entitled "An act to establish the judicial courts of being repugnant to the constitution, treaties, or laws of the United States," passed on the 14th September, 1789, the United States, and the decision is in favor of such is unconstitutional, and ought to be repealed. their validity; or where is drawn in question the con

The reasons that have induced this opinion the commit-struction of any clause of the constitution, or of a treaty tee will now present for the consideration of the House. or statute of, or commission held under, the United States, The declaration of independence, the treaty of peace and the decision is against the title, right, privilege, or with Great Britain, and the articles of confederation, all exemption, especially set up or claimed by either party, announce to the world that the States of the confederacy under such clause of the said constitution, treaty, statute, were free, sovereign, and independent States, and that or commission, may be re-examined and reversed or they had a right to make treaties, form alliances, and to affirmed in the Supreme Court of the United States, upon do any other acts that any independent sovereignty could a writ of error, the citation being signed by the chief jusdo. In the character of sovereign States, the old confed- tice or judge or chancellor of the court rendering or passeration and the present Federal Government were alike ing the judgment or decree complained of, or by a justice formed and established. The defects of the old confed- of the Supreme Court of the United States, in the same eration, which rendered necessary the existing Federal manner and under the same regulations, and the writ shall Government, were its inability to coerce a State to con- have the same effect, as if the judgment or decree comtribute its quota of supplies to the general treasury, and plained of had been rendered or passed in a circuit court; its want of adequate power to manage, conduct, and con- and the proceedings upon the revisal shall, also, be the trol our commercial and foreign relations. same, except that the Supreme Court, instead of remand

It was perceived in the convention that framed the con- ing the cause for a final decision, as before provided, may, stitution, that a federal judiciary was indispensably neces- at their discretion, if the cause shall have been once resary, as a co-ordinate department of the contemplated|manded before, proceed to the final decision of the same,

21st CoNG. 2d SESS.]

Report upon the Judiciary.

and award execution. But no error shall be assigned as troversies that might arise between the several departments a ground of reversal in any such case as aforesaid, than of our federative system. The question is not a new one. such as appears on the face of the record, and immedi- In the great political contest in 1798 and 1800, this very ately respects the before mentioned questions of validity question made a distinction, and marked the line of divior construction of the said constitution, treaties, statutes, sion between the two parties that then divided the country. commissions, or authorities in dispute.' The federal party, who were then in power, asserted, In the above mentioned sections, Congress gives the that the federal court (which had just then declared and power of a direct appeal from a State court, to the Su-enforced as constitutional the alien and sedition laws,) preme Court of the United States; but in the opinions of was the tribunal of last resort established by the constituthe committee, the constitution of the United States gives tion, to judge of and determine questions of controversy the right of appeal only from such inferior courts, as Con- between the departments of the Federal Government, gress shall, from time to time, ordain and establish. If and between the Federal Government and the States. this opinion be wrong, then has the Supreme Court a su- The republican, or State rights party of that day, on the pervisory and controlling power over twenty-four sove- contrary, denied that the judicial department of the Fede reign States. Before entering into a particular comparison ral Government, or all the departments of that Governof the above section of the judicial act of 1789, with the ment conjointly, were empowered to decide finally and first and second section of the third article of the consti-authoritatively, in questions of sovereignty, controversies tution of the United States, the committee beg leave to between a State and the Federal Government, and asserted make a few preliminary remarks (which it is hoped will and insisted that there was no common tribunal established not be deemed impertinent to the matter referred) on the by the constitution for such a purpose, and that, consepeculiar character and structure of our complex system quently, each party had the right to judge of and deterof Government.

mine the extent of its own rights and powers. The The most universally received maxim in the theory of avowed political creed of that party was, that the Union political liberty, since the establishment of American in- was the result of a compact between the people of the dependence, is, that the people alone have the right, several States, in their sovereign and corporate capacities either directly or by representative conventions, to make and characters of separate and independent societies or or alter their constitutions or forms of government, and States, and not as one entire people forming one nation. that the Government can do neither. To preserve a Go- That these were the opinions and principles of the repubvernment thus formed, the division and distribution of its lican party of that day, is abundantly proven by Mr. Jef powers, into separate departments has also been as univer-ferson, Mr. Madison, and many other able constitutional sally admitted to be the best security. If the Government, lawyers. or any department of it, be allowed to change or alter the constitution, the essential and vital principle of theoretical liberty, as established here, with all its securities, must inevitably be destroyed.

This great maxim ought, therefore, to be vindicated, whenever violated. It has never, it is true, been contended that the Supreme Court of the United States, or Congress, or both powers together, can alter the form of the Federal Government; but if the power claimed for the Supreme Court be submitted to, and the twenty-fifth section of the judicial act be continued as a part of the judicial system of the United States, that court will have the power, without any possible check, to encroach upon the other political departments of the Government.

The committee do not mention the names of these distinguished men for the purpose merely of using their opinions as authority for the principles they advocate, but to establish the fact that the great body of the American people did pass upon, sanction, and adopt these princi ples, as forming the true theory of our Government, which was manifested by the promotion of these gentlemen to the very stations where these principles were to be tested by action and practice. As it is now a matter of unques tioned history, that Mr. Jefferson penned the memorable resolutions commonly called the Kentucky resolutions, and that Mr. Madison wrote the Virginia report, the committee feel entitled to quote them as authority upon questions of constitutional law.

Much difficulty and embarrassment, in discussing questions of political powers and rights, arise from blending Kentucky Resolutions, passed November 10th, 1798. and confounding terms usually employed in expressing "Resolved, That the several States composing the and describing political laws and judgments. A proper United States of America, are not united on the principle understanding of the distinction between them will al- of unlimited submission to the General Government; but ways enable us to detect any attempt of the Government, that, by compact, under the style and title of a constituor any department in it, to alter or change the constitution for the United States, and of amendments thereto, tion. Political law is made by the people to restrain Go-they constituted a General Government for special purvernment; civil law is made by the Government to restrain poses, delegated to that Government certain definite individuals. The former is a rule of action for the go-powers, reserving, each State to itself, the residuary mass verning; the latter a rule of action for the governed. of right to their own self-government; and that whensoThe Supreme Court virtually claims the right, under ever the General Government assumes undelegated powthe constitution, to pronounce political judgments, anders, its acts are unauthoritative, void, and of no force; that asserts the power, under the judicial act, of carrying to this compact each State acceded as a State, and is an them into.execution, by coercing sovereign States. The integral party; that this Government, created by this committee readily admit that there is great difficulty in compact, was not made the exclusive or final judge of the distinguishing between political laws and judgments, and extent of the powers delegated to itself, since that would civil laws and judgments, in most of the Governments of have made its discretion, and not the constitution, the the world; but confidently believe that it was foreseen measure of its powers; but that, as in all other cases of and provided for by the framers of the federal constitu- compact among parties having no common judge, cach tion, by the division and limitations of power we find party has an equal right to judge for itself, as well of there, between the federal and State Governments. None infractions as of the mode and measure of redress."* deny that such a division of powers was made by the conThe committee beg leave to add the following extract stitution, between the federal Government and the States, from the same illustrious source: by the grant of specific powers to the former, and the reservation of all ungranted powers to the latter; but a great diversity of opinion has existed as to the power to which resort must be had to determine questions and con-|

"That the States of North America, which confederated to establish their independence on the Government of Great Britain, became, on that acquisition, free and

Mr. Jefferson,

independent States, and, as such, authorized to constitute Federal and State Governments, that the federal courts Governments, each for itself, in such form as it thought best. should have power to control the decisions of State courts "They declared, in the second article of their first by appeal, than that the Federal Legislature should have confederated Government, that each State retains its power to control the legislation of the States, or the FeSovereignty, freedom, and independence, and every power, deral Executive a State Executive, by a negative. It jurisdiction, and right, which is not, by this confederacy, cannot be, that when a direct negative on the laws of a expressly delegated to the United States in Congress State was proposed in convention, as part of the federal assembled.' They afterwards entered into a compact, constitution, and rejected, that it was intended to confer which is called the Constitution of the United States of on the federal courts, by implication, a power subjecting America, by which they agreed to unite in a single Go- their whole legislation, and their judgments and decrees vernment, as to their relations with each other, and with on it, to this negative of the federal courts. It cannot foreign nations, and as to certain other articles particularly be, that this prostration of the independency of the State specified. They retained, at the same time, each to itself, judicatories, this overthrow of the State Governments the other rights of independent government, compre-as co-ordinate powers, could be left to any implication of hending, mainly, their domestic interests. authority.

"For the administration of their federal branch, they The committee are therefore of opinion, that the power agreed to appoint, in conjunction, a distinct set of func- to enact the 25th section above recited, is not expressed tionaries, legislative, executive, and judiciary, in the man- in the constitution of the United States, nor properly an ner settled in that compact, while to each, severally, and incident to any express power, and necessary to its execuof course, remained its original right of appointing, each tion. That, if continued and acquiesced in as construed for itself, a separate set of functionaries, legislative, by the Supreme Court, it raises the decision of the judiexecutive, and judiciary; also, for administering the do- ciary above the authority of the sovereign parties to the mestic branch of their respective Governments. constitution, may be a warrant for the assumption of pow"These two sets of officers, each independent of the ers not delegated in the other departments, nor carried by other, constitute thus a whole of Government, for each the forms of the constitution before the judicial departState separately--the powers ascribed to the one, as spe- ment, and whose decisions would be equally authoritative cifically made federal, exercised over the whole--the and final with the decisions of that department. residuary powers, retained for the other, exerciseable However, therefore, it may be admitted or denied, that exclusively over its particular State--foreign, herein, each the judicial department of the Federal Government is, in to the others, as they were before the original compact." all questions submitted to it by the forms of the constituThat this is the true exposition of the powers and au- tion, to decide in the last resort in relation to the authorithorities of the Federal and State Governments, is mani- ties of the other departments of that Government, it can fested from the guarded limitation and definition of the never be authorized so to decide in relation to the right of grants of power in the compact itself, and by the con- the parties to the constitutional compact, from which the temporary discussions and comments which the constitu-judicial, as well as the other departments, hold their deletion underwent, which justified and recommended it, on gated trusts; on any other hypothesis, the delegation of the ground that the powers not given to Government were judicial power would annul the power delegating it, and withheld from it. But to leave no doubt on the subject, the concurrence of this department in usurped powers the amendments to the constitution expressly declare, that might subvert forever, and beyond the possible reach of the powers not delegated to the United States by the con- any rightful remedy, the very constitution which all were stitution, nor prohibited by it to the States, are reserved instituted to preserve. to the States respectively, or to the people.

"The authority of constitutions over Governments, and The committee are of opinion that the delegated powers the sovereignty of the people over constitutions, are truths resulting from the compact of Governments to which the at all times necessary to be kept in mind," and it is matStates are parties, are limited by the plain sense and inten-ter of regret to the committee, that it should ever have tion of the instrument constituting that compact, and are been asserted, that the constitution, on whose face is seen no farther valid than they are authorized by the grants so much labor to enumerate and define the several objects enumerated in that compact, and that it is incumbent in of federal power, could intend to introduce in the lump, this, as in every other exercise of power by the federal in an indirect manner, and by a forced construction, the Government, to prove from the constitution that it grants vast and multiform jurisdiction involved in the section of the particular power exercised; that if the powers granted the law under consideration-a jurisdiction overshadowing be valid, it is solely because they are granted; and all the entire field of their legislation and adjudication--a other powers not granted, are not valid. jurisdiction that saps the foundation of the constitution, Testing the 25th section of the act aforesaid, by the as a system of limited and specified powers--obliterates foregoing principles and expositions, the committee cannot perceive any grant of power in the constitution to

warrant the enactment.

the sovereignty of so many republics, renowned for their defiance of tyranny, and whose jealous limitations of power had preserved their liberty, and secured for them prosperity the wonder and admiration of the world.

a

That the constitution does not confer power on the federal judiciary over the judicial departments of the Nor are the committee unmindful that, in practice, this States, by any express grant, is certain from the fact that disputed power has given rise to painful collisions in the the State judiciaries are not once named in that instrument. State and Federal authorities, calculated to disturb the On the contrary, it declares that the judicial power of the harmony of our system, and to weaken that confidence United States shall be vested in one Supreme Court, and and affection which are due to the respective Governments in such inferior courts as Congress may, from time to time, in the constitutional exercise of all their functions. ordain and establish; thus giving power to organize a judicial system capable of exercising every function to which the judicial power of the United States extended, and intending to create a new judiciary, to exercise the judicial powers of a new Government," unconnected with, and independent of, the State judiciaries.*

The committee will only add one more extract from Mr. Jefferson, which is to be found in a second series of resolutions adopted by the Legislature of Kentucky, the 14th November, 1799:

"That if those who administer the General Government be permitted to transgress the limits fixed by the It is no more necessary to the harmonious action of the compact, by a total disregard to the special delegations of

power therein contained, an annihilation of the State Go- Supreme Court. Not one of all these requisites characvernments, and the erection upon their ruins of a general terise State courts or judges. The State courts are not consolidated Government will be the inevitable conse-established by Congress; the State judges do not receive quence: that the principle and construction contended for their appointments from the President, by and with the by sundry of the State Legislatures, that the General Go-advice and consent of the Senate; they hold their offices vernment is the exclusive judge of the extent of the pow-not necessarily during good behavior, but by such tenure ers delegated to it, stop nothing short of despotism, since as the States shall choose; their compensation may be dithe discretion of those who administer the Government and minished at the pleasure of the States; and they are not not the constitution, would be the measure of their pow-responsible to, or liable to be impeached before, the Seers: that the several States who formed that instrument,nate of the United States.

being sovereign and independent, have the unquestionable The committee are aware, that, since the able and unright to judge of its infraction: and that a nullification by answerable arguments on the twenty-fifth section in the those sovereignties, of all unauthorized acts done under Supreme Court of Virginia, the advocates of federal power color of that instrument, is the rightful remedy." have assumed the position, that the right of appeal is claimThe committee will now proceed to examine the provi-ed for the federal court, on the ground, that the case sions of the twenty-fifth section, and compare them with arises under the laws, treaties, and constitution of the the powers of the federal court, as conferred by the con- United States, and not on the ground that the State tristitution of the United States; and then submit for the bunal is an inferior one, from which a writ of error would consideration of the House two judicial decisions of the lie. The natural result of this will be, that, if the position highest respectability, declaring the said twenty-fifth sec- be true, it will prove too much. If the nature of the case tion unconstitutional. be the only ground of jurisdiction, will it not authorize The whole judicial power of the United States is de- the Supreme Court to issue a citation or writ of error to a clared by the constitution to be vested in one Supreme court of England or France, on the pretext that some one Court, and in such inferior courts as Congress shall, from of the questions arose under a treaty of the United States? time to time, ordain and establish. Can Congress, by le- A judicial tribunal of one of those places is not more indegislation, invest State courts with any portion of that pendent of the federal court than is a State court, if the power? Did the convention contemplate, in using the character of the case be the only criterion or authority for term appellate jurisdiction, the right and power of taking federal jurisdiction. Will it be said that the right of jurisan appeal from a State court to the Supreme Court? The diction is limited by the power to enforce the mandates of answer to these questions must be found in the constitu- of the court? This being admitted, will not vary the tion. The Supreme Court is given original jurisdiction result of the present question. The federal courts have only in two classes of cases, to wit: in all cases affecting the same right to issue a mandamus, prohibition, or proambassadors, other public ministers, and consuls, and cess of contempt, to a foreign judge. If the nature of the those in which a State shall be a party. The only cases in case can give jurisdiction, as it has, to a State judge, it has which a State can be party, are, 1st. where the controver- also precisely the same power to execute it. If the right sy is between two or more States; and 2d, where the contro- existed in the first case, to issue and to execute process, versy is between a State, or the citizens thereof, and foreign the Supreme Court would virtually be invested with the States. In all other cases, before mentioned, says the power of declaring war; if in the latter case, that court constitution, the Supreme Court shall have appellate ju- will have the power to blot out from the map any State of risdiction. What courts have the original jurisdiction in the Union. If the right to issue a mandatory process to all those cases before mentioned, in the second section of the legislative, executive, and judicial authorities of a the third article, of which the Supreme Court has only the State, be admitted to belong to the federal court under appellate jurisdiction? Let the constitution answer: in "such the constitution, the correlative obligation on these autho inferior courts as Congress shall, from time to time, ordain rities to obey, and the rightful power to enforce it, are oband establish." Is a State court an inferior court? The vious and necessary sequents. The federal court, under constitution does not say so. If the framers of the constitu- these admitted principles, will have the power to prohibit tion had so considered them, and had intended the right State legislation by writs of injunction; to sequestrate and power of taking an appeal from their judgments to State treasuries, and to imprison State functionaries, whethe Supreme Court, it was an easy matter, and they, doubt-ther governors, judges, or State Legislatures, in a body. less, would have said so: their omitting to do so, is proof Indeed, the power will not stop here; the same reasoning irresistible that the power was not intended to be given. will sustain a power in the federal court to attach and imIt is unreasonable to believe that they who were so very prison the President and both Houses of Congress. The precise and specific in the enumeration of cases and pow-power by citation or writ of error, to take a case after ers of infinitely less moment, would have left to implica-judgment, from a State court, and to remove it, for final tion and inference, a power that breaks down all the bar-determination, to the supreme federal court, is a much

riers between the State and Federal Governments.

greater outrage on the fundamental principles of theoreti The constitution not only invests the whole judicial cal and practical liberty, as established here, than the odious power of the United States in two specified tribunals, but writ of quo warranto, as it was used in England by a tyalso prescribes and declares the duties, and rights, and rannical king, to destroy the rights of corporations. The tenure of office of the judges who shall constitute them; end and aim, in both cases, were similar: in England, it not one of which is applicable to the courts or judges of was to make corporations subservient to the kingly pleaState courts. The courts, in the first place, must be such sure; here, to make States subservient to federal extravaas are established by Congress; the judges must receive gance and aggrandizement. their appointments from the President, with the consent The last arguments used by the advocates of federal of the Senate; they are told to hold their offices during power is, that the action of the Federal Government will be good behavior; their compensation cannot be diminished so crippled by the repeal of the twenty-fifth section of the during their continuance in office; and are made liable to act of 1789, that its wholesome operations will be arrested. be impeached and removed from office by the Senate of Although the committee will not acknowledge that such the United States. Such are the counts and judges that would be the necessary consequence, yet it may be admit the constitution invested with the jurisdiction of all other ted for the sake of argument, without changing the result. cases before mentioned," in the second section of the third The committee believe that it is the imperative duty of article of that instrument, with the exception of two classes Congress to repeal, without delay, any of its acts in contraof cases over which original jurisdiction is given to the vention of the constitution, be the consequences what they

may. If Congress had no power to pass such laws, they and that the writ of error in this case was improvidently are null and void, and ought not to remain on the statute allowed under the authority of that act; that the proceedbook; if such be really necessary, the power that created ings thereon in the Supreme Court, were coram non judithe constitution can, and will amend it. Necessity and cem in relation to this court, and that obedience to its manexpedience are the pleas of the tyrant; amendment, the date be declined by this court." dictate of the constitution. By pursuing the former course, we trample upon the constitution; by following the latter, we go back to the people, the original source of all power.

It has also been urged as a branch of this argument, that the twenty-fifth section is indispensable to that supremacy of the federal court which is required to preserve the peace of the country with foreign Powers, and to render uniform all judgments in treaty cases. The answer to these objections to the repeal of the twenty-fifth section, the committee believe to be full and perfect in the case of Hunter vs. Martin, and prefer presenting it in the language of the able judge who delivered it;

The committee will present one more judicial opinion of a State Court against the powers contended for by the Supreme Court of the United States.

The Supreme Court of the Commonwealth of Pennsylvania, in the case of the Commonwealth vs. Cobbett,* solemnly and unanimously refused to permit the defendant, who was an alien, to remove a cause in which he was sued by the State in its Supreme Court, into a Circuit Court of the United States, notwithstanding the comprehensiveness of the words of the twelfth section of the judicial act. The court, after deciding, in the most explicit terms, that all power not granted to the Government of the United States, remained with the several States; that the Federal ** I have said that this controlling power was not essen- Government was a league or treaty, made by the indivitial to preserve the peace of the nation. Without going dual States as one party, and all the States as another; to other considerations or authorities on the subject, it is that when two nations differ as to the construction of a sufficient to remark that the American people have decid- league or treaty existing between them, neither has the ed that it is no cause of offence to foreign nations, to have exclusive right to decide it; and that if one of the States their causes decided, and exclusively and finally decided by the State tribunals. In that amendment to the constitution, by which the jurisdiction of the federal courts is prohibited to suits brought against the States by foreign citizens or subjects, this construction is most undoubted, and has never been complained of.

should differ with the United States as to the extent of the grant made to them, there is no common umpire between them but the people, by an amendment of the constitution; went on to declare its own opinion on the subject, and overruled the motion on the ground that the sovereign State of Pennsylvania could not, on account of its dignity, "Since the adoption of that amendment, the election of be carried before that court. This was the solemn and jurisdiction has been entirely taken away from foreigners unanimous decision of the Supreme Court of one of the in all suits against the States; and those suits can now be most respectable and republican States of the Union. brought in the States' courts in exclusion of every other; The decisions of these tribunals, the committee consiand that, too, in cases, in which, from the circumstances der of high authority and great weight; the judges who of the States themselves being parties, it might, perhaps, composed them were of exalted character, patriotism, be plausibly urged that the judges of the State courts learning, and ability. They had taken the same oath imwere not free from bias. I consider that this declaration posed upon the federal judges to support the constitution by the American people, and which has never excited a of the United States, together with the superadded obligamurmur in foreign nations, has put down the notion now tion to maintain the constitutions of the States, whose juin question. It has settled the question forever, that it is dicial powers were confided to them. no cause of war to foreign nations, that the State judicia- The committee do not pretend to originality in the views ries should finally decide the causes, elected to be brought and principles of this report; on the contrary, they believe therein by their subjects. It has consequently over- they could not better discharge their duty, or render a thrown the only foundation on which the whole super- more acceptable service to the House, than by presenting structure of the twenty-fifth section of the judicial act has the authorities on which it is founded. Believing the secbeen supposed to rest. tion of the act referred to the consideration of the com"That pretence is the only one on which the power inmittee to be unconstitutional, they herewith report a bill question could be attempted to be justified. That of ren- to repeal the same. dering uniform all judgments in the case of treaties is still less tenable, and is even not attained by the actual provisions of the judicial act. Under that act, the appeal equally lies to the Supreme Court of the United States, where such uniformity already exists, and is denied where it is wanting.

"If, for example, the Supreme Court of the United States has decided against a treaty, and the Supreme Court of a State decides the same way, there this uniformity already exists, and yet the appeal is allowed. If, on the other hand, the former court decides against a treaty, and the latter in favor of it, this uniformity is wanting, yet the appeal is denied."

COUNTER REPORT UPON THE JUDICIARY.

HOUSE OF REPRESENTATIVES, JAN. 24.

The Committee on the Judiciary, to which was referred a resolution of the House of Representatives of the 21st ultimo, instructing them "to inquire into the expediency of repealing or modifying the twenty-fifth section of an act entitled "an act to establish the judicial courts of the United States," passed the 24th September, 1789, having made a report, accompanied by a bill to repeal the same, the minority of that committee, differing in opinion from their associates upon this important question, deem it to The following is the unanimous opinion of the Supreme be their duty to submit to the House the following report: Court of Virginia, in the above stated case. The constitution of the United States has conferred

The court is unanimously of opinion, that the appel-upon Congress certain enumerated powers, and expressly late power of the Supreme Court of the United States authorizes that body "to make all laws which shall be nedoes not extend to this court, under a sound construction cessary and proper for carrying these powers into execuof the constitution of the United States; that so much of tion." In the construction of this instrument, it has bethe 25th section of the act of Congress, to establish the come an axiom, the truth of which cannot be controverted, judicial power of the United States, as extends the appel- that "the General Government, though limited as to its late judicial power of the Supreme Court to this court, is objects, is supreme with respect to those objects." not in pursuance of the constitution of the United States;

Hunter vs. Fairfax---4th Munford.

VOL. VII.--L

The constitution has also conferred upon the President,

3d Dallas, 473.