ral Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; and to this compact each State acceded as a State, and is an integral party; that this Government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."

The committee beg leave to add the following extract from the same illustrious source.*

"That the States of North America, which confederated to establish their independence on the Government of Great Britain, became, on that acquisition, free and independent States, and, as such, authorized to constitute Governments, each for itself, in such form as it thought best." They declared, in the second article of their first confederate Government, that "each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not, by this confederacy, expressly delegated to the United States in Congress assembled." "They afterwards entered into a compact, (which is called the Constitution of the United States of America,) by which they agreed to unite in a single Government, as to their relations with each other and with foreign nations, and as to certain other articles particularly specified. They retained, at the same time, each to itself, the other rights of independent government, comprehending, mainly, their domestic interests.

"For the administration of their federal branch, they agreed to appoint, in conjunction, a distinct set of functionaries, legislative, executive, and ju diciary, in the manner settled in that compact; while to each, severally and of course, remained its original right of appointing, each for itself, a separate set of functionaries, legislative, executive, and judiciary, also for administering the domestic branch of their respective Governments.

"These two sets of officers, each independent of the other, constitute thus a whole of Government for each State separately-the powers ascribed to the one, as specifically made federal, exercised over the whole-the residuary powers, retained for the other, exercisable exclusively over its particular State-foreign, herein, each to the others, as they were before the original compact."

That this is the true exposition of the powers and authorities of the Federal and State Governments, is manifested from the guarded limitation and definition of the grants of power in the compact itself, and by the contemporary discussions and comments which the Constitution underwent, which justified and recommended it on the ground that the powers not given to Government were withheld from it. But, to leave no doubt on the subject, the amendments to the Constitution expressly declare that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The committee are of opinion that the delegated powers resulting from the compact of Governments to which the States are parties, are limited by the plain sense and intention of the instrument constituting that compact, and are no further valid than they are authorized by the grants enumerated in that compact, and that it is incumbent in this, as in every other exercise of pow er by the Federal Government, to prove from the Constitution that it grants the particular power exercised; that, if the powers granted be valid, it is sole

Mr. Jefferson

.

ly because they are granted, and all other powers not granted are not valid. Testing the 25th section of the act aforesaid by the foregoing principles and expositions, the committee cannot perceive any grant of power in the Constitution to warrant the enactment. That the Constitution does not confer power on the Federal Judiciary, over the judicial departments of the States, by any express grant, is certain from the fact that the State judiciaries are not once named in that instrument. On the contrary, it declares that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may, from time to time, 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 extend- ̈ ed," and intending to create a new judiciary, to exercise the judicial powers of a new Government," unconnected with, and independent of, the State judiciaries.*

It is no more necessary to the harmonious action of the Federal and State Governments that the federal courts should have power to control the decisions of State courts by appeal, than that the Federal Legislature should have power to control the legislation of the States, or the Federal Executive a State Executive, by a negative. It cannot be that when a direct negative on the laws of a State was proposed in convention, as part of the Federal Constitution, and rejected, that it was intended to confer on the federal courts, by implication, a power subjecting their whole legislation, and their judgments and decrees on it, to this negative of the federal courts. It cannot be that this prostration of the independency of the State judicatories, this overthrow of the State Governments as co-ordinate powers, could be left to any. implication of authority.

The committee are, therefore, of opinion that the power to enact the 25th section above recited is not expressed in the Constitution of the United States, nor properly an incident to any express power, and necessary to its execution. That, if continued and acquiesced in as construed by the Supreme Court, it raises the decision of the judiciary above the authority of the sovereign parties to the Constitution; may be a warrant for the assumption of powers not delegated in the other departments, not carried by the forms of the Constitution before the judicial department; and whose decisions would be equally authoritative and final with the decisions of that department.

However, therefore, it may be admitted or denied that the judicial department of the Federal Government is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort in relation to the authorities of the other departments of that Government, it can never be authorized so to decide in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments hold their delegated trusts; on any other hypothesis, the delegation of judicial power would annul the power delegating it, and the concurrence of this department in usurped powers might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.

*

"The authority of Constitutions over Governments, and the sovereignty of the people over Constitutions, are truths at all times necessary to be kept in mind; and it is matter of regret to the committee, that it should ever have been asserted that the Constitution, on whose face is seen so much labor to enumerate and define the several objects of federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction.

Mr. Madison.

the vast and multiform jurisdiction involved in the section of the law under consideration-a jurisdiction overshadowing the entire field of their legislation and adjudication, a jurisdiction that saps the foundation of the Constitution, as a system of limited and specified powers; obliterates 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 a prosperity, the wonder and admiration of the world.

Nor are the committee unmindful, that, in practice, this disputed power has given rise to painful collisions in the State and federal authorities, calculated to disturb the harmony of our system, and to weaken that confidence and affection which are due to the respective Governments in the constitutional exercise of all their functions.

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 compact, by a total disregard to the special delegations of power therein contained, an annihilation of the State Governments, and the erection upon their ruins of a general consolidated Government, will be the inevitable consequence: that the principle and construction contended for by sundry of the State Legislatures, that the General Government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the Government, and not the Constitution, would be the measure of their powers: that the several States who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized aets done under color of that instrument, is the rightful remedy."

The committee will now proceed to examine the provisions of the 25th section, and compare them with the powers of the federal court as conferred by the Constitution of the United States; and then submit for the consideration of the House two judicial decisions of the highest respectability, declaring the said 25th section unconstitutional.

The whole judicial power of the United States is declared by the Constitution to be vested in one Supreme Court, and in such inferior courts as Congress shall, from time to time, ordain and establish. Can Congress, by legislation, invest State courts with any portion of that power? Did the Convention contemplate, in using the term appellate jurisdiction, the right and power of taking an appeal from a State court to the Supreme Court? The answer to these questions must be found in the Constitution. The Supreme Court is given original jurisdiction only in two classes of cases, to wit, in all eases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party. The only cases in which a State can be a party are, 1st, where the controversy is between two or more States; and, 2d, where the controversy is between a State, or the citizens thereof, and foreign States. In all other cases before mentioned, says the Constitution, the Supreme Court shall have appellate jurisdiction. What courts have the original jurisdiction in all those cases before mentioned in the second section. of the third article, of which the Supreme Court has only the appellate jurisdiction? Let the Constitution answer: in "such inferior courts as Congress shall, from time to time, ordain and establish." Is a State court an inferior court? The Constitution does not say so. If the framers of the Con

stitution had so considered them, and had intended the right and power or taking an appeal from their judgments to the Supreme Court, it was an easy matter, and they doubtless would have said so: their omitting to do so is proof irresistible that the power was not intended to be given. It is unreasonable to believe that they, who were so very precise and specific in the enumeration of cases and powers of infinitely less moment, would have left to implication and inference a power that breaks down all the barriers ⚫ between the State and Federal Governments.

The Constitution not only invests the whole judicial power of the United States in two specified tribunals, but also prescribes and declares the duties, and rights, and tenure of office of the judges who shall constitute them; not one of which is applicable to the courts or judges of State courts. The courts, in the first place, must be such as are established by Congress; the judges must receive their appointments from the President, with the consent of the Senate; they are to hold their offices during good behavior; their compensation cannot be diminished during their continuance in office; and are made liable to be impeached and removed from office by the Senate of the United States. Such are the courts and judges that the Constitution invested with the jurisdiction of all "other cases before mentioned" in the second section of the third article of that instrument, with the exception of two classes of cases, over which original jurisdiction is given to the Supreme Court. Not one of all these requisites characterise State courts or judges. The State courts are not established by Gongress; the State judges do not receive their appointments from the President, by and with the advice and consent of the Senate; they hold their offices not necessarily during good behavior, but by such tenure as the States shall choose; their compensation may be diminished at the pleasure of the States; and they are not responsible to, or liable to be impeached before, the Senate of the United States. The committee are aware, that, since the able and unanswerable arguments on the twenty-fifth section of the Supreme Court of Virginia, the advocates of federal power have assumed the position that the right of appeal is claimed for the federal court on the ground that the case arises under the laws, treaties, and Constitution of the United States, and not on the ground that the State tribunal is an inferior one, from which a writ of error would lie. The natural result of this wlll be, that, if the position be true, it will prove too much. If the nature of the case be the only ground of jurisdiction, will it not authorize the Supreme Court to issue a citation or writ of error to a court of England or France, on the pretext that some one of the questions arose under a treaty of the United States? A judicial tribunal of one of those places is not more independent of the federal court than is a State court, if the character of the case be the only criterion or authority for federal jurisdiction. Will it be said that the right of jurisdiction is limit ed by the power to enforce the mandates of the court? This being admitted will not vary the result of the present question. The federal courts have the same right to issue a mandamus, prohibition, or process of contempt, to a foreign judge, if the nature of the case can give jurisdiction, as it has to a State judge: it has also precisely the same power to execute it. If the right existed in the first case to issue and to execute process, the Supreme Court would virtually be invested with the power of declaring war; if in the latter case, that court will have the power to blot out from the map any State of the Union. If the right to issue a mandatory process to the legis lative, executive, and judicial authorities of a State be admitted to belong to

the federal court under the Constitution, the correlative obligation on these authorities to obey, and the rightful power to enforce it, are obvious and necessary sequents. The federal court, under these admitted principles, will have the power to prohibit State legislation by writs of injunction; to sequestrate State treasuries, and to imprison State functionaries, whether governors, judges, or State legislatures, in a body. Indeed, the power will not stop here; the same reasoning will sustain a power in the federal court to attach and imprison the President and both Houses of Congress. The power, by citation or writ of error, to take a case, after judgment, from a State court, and to remove it for final determination to the Supreme Federal Court, is a much greater outrage on the fundamental principles of theoretical and practical liberty, as established here, than the odious writ of que warranto, as it was used in England by a tyrannical king to destroy the rights of corporations. The end and aim in both cases were similar. In England it was to make corporations subservient to the kingly pleasure; here to make States subservient to federal extravagance and aggrandisement.

The last argument used by the advocates of federal power is, that the action of the Federal Government will be so crippled by the repeal of the twenty-fifth section of the act of 1789, that its wholesome operations will be arrested. Although the committee will not acknowledge that such would be the necessary consequence, yet it may be admitted for the sake of argument, without changing the result.

The committee believe that it is the imperative duty of Congress to repeal, without delay, any of its acts in contravention of the Constitution, be the consequences what they may. If Congress had no power to pass such laws, they are null and void, and ought not to remain on the statute book; if such be really necessary, the power that created the Constitution can and will amend it. Necessity and expedience are the pleas of the tyrant; amendment, the 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 25th 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 25th 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.

"I have said that this controlling power was not essential to preserve the peace of the nation.* Without going to other considerations or authorities on the subject, it is sufficient to remark that the American people have decided that it is no cause of offence to foreign nations to have their cause 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 in suits brought against the States by foreign citizens or subjects, this construction is most undoubted, and has never been complained of. Since the adoption of that amendment, the election of jurisdiction has been entirely taken away from foreigners in all suits against the States; and those suits can now be brought in the States' courts in exclusion of every other; and that, too, in cases in which, from the circumstance of the States themselves being parties, it might, perhaps, be plausibly urged that the Hunter vs. Fairfax, (4 Mumford.)