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fgto o# appeal to the Supreme Court from the’
Occikioii which may be made, it must be derived
from that claiue oi the Constitution conferring on ■
fbe suj>e*ne Court its appellate powers: but that
it.iuac extends the power to “all cases iu law or {
equity arising under I lie Constitution, the laws of;
the U. States, uiui treaties made under their au
thority/’ whereas this twenty fifth section C(*i-
Jiucrtt lo cases wuete the decision shall be against 1
the valiilly us ‘.he treaty, (ionstilt*tian, &:. The
case then, *o far as regards the Supreme Court,
urises under the decision of the Stale Court, tend
it it under the Coiitututi.m or treaty. The party
wno aS< up Inis uelencu h<t* a double advantage:
it his pica is oven tiled, he appeals to the Supreme
Court, where t:.v darifion may be reversed; hut
if it is sustained, tils ad versary has no resort—the
judgment us the State ( ous tis final. Is there not
manifest iitcquuhiy and inj retire here? and will
gentlemen tell u*> by vvhal mrced of
the Const uu.itm filial convenient auxiliary ol the
advocates of power) they establish the light of
Congress thus to discriminate between individuals
prosecuting i neir rights in our courts of justice?
btr, this is the law on which, we are gravely told,
the union of these States depends—the provisions
Os Which are so perfect, and its character so sa
cred, that, in the opinion of the honorable gentle
man from Pennsylvania, (Mr. Crawford,) even
to touch it is profanity!
iconic now, mr.-Si'KAKRR, to thepriticipal, and
much the iniist important, lentil re of this celehrat- j
ed section —the power it eouiers on the bupieme I
Court to re-examine and reverse the judgments ]
of the Suite Conus. And here, sir, the simple j
inquiry is, whether this power is given by the
Constitution? for if it is not, it will not be cou
tcii'lcd that ii can be coafeneu by statute. On
ttie contrary, if the Constitution does give tfie
power, a repeal of this section would not prevent
t:m exercise of it by the Court. Phe powers and
duties the different departments of the Gover
n -jrc spccihod and d/lined by the Conslituii
■Mßjftfele ol their exercise is, iu many install
b\ statute. It the -'nil section *>l
Wy iIU ,lu lim ,1 ‘ 1’ Hilled out the mau-
appeals snouid be taken to the Su-
lueie could be no o:j*cii*"i in il
MPPltbeii only have been necessary to turn to
and ascertain to vs hut Cases, and
Kn what trtb'tn. i, this right applies. Hut our
HFjectioti is, that by thi section, powers are con
lerrevt on the Supreme Court not authorized by
trie Constimiioii, nnt? alarming to the rights ol tlie
State Com ts, and tb the sovei eighty ol the States.
The lirßturgu'.ucut which 1 would urge (and to
my mind it is perfectly conclusive) to shew that
the Constitution docs not give the Supreme Court
thoiignl to review and decide upon the judgments
q; Hiy ,?tate Courts, is that that power is not speci
in die ConslUutivn itself. Ihe powers ol the
jTedera I Govern utut ii re divided into three de
panimfnts- —Legislative, Fxecuive, and Judiciul.
llic powers assigned to cueu urc specified and de
tonvii—niuk to none of the departments more par
ticularly mail io the Judufial. Very extensive
fund i will add alarming j powers uie given to it;
yet they ate specifically enuuieintod. The a
gciits, too, by whom these powers are to be ad
ministered, are pointed out —by “one Supreme
Court, and such inferior Courts as Congress may
from tune to lime ordain and establish. - ’ l-et n
reineinoeted, that throughout tiie Coustitutiou
‘fhere is not the slightest connexion indicated be
tween any of the departments of the Federal wi Ii
fiuiiiar depariineuis ot me State Covetuuiciig;.
No * connexion was intended—and least ol
t\li, a supervisory power over any departments ot
the stale Governments, acting within the sphere
ot their retained soveriguty. Have gentlemen
forgotten the proposition made in iue„lederai
Convention to vest Congress with the power to
negative the laws of die State Legislatures? Ami
can then* be a doubt that an etloit to give the Fe
deral Judiciary tue pwwer u> revise and tevcrfe
tiie judgments oi tins- Slate Courts would have
I lured the same fate? Sir, the jealousy and <p
preneusions entertained by the friends ot hie
lights of the State* at tfie powers proposed to be
given to the General Government are matters ol
history, and ho v well founded they were, let
- itiatoij answer.
Hut, Sir, there i#-nuother reason, which is ve
ty satisfactory to me that this right ofappeaMrom
4 State to the United Siate*’ Court vvas not un
derstood, at the formation ot the constitution,
to have been given, and tlint is, thnt in the do
ty Ues of the State conventions, on the ratification
ol the constitution, there is no reference io tins
power. Had such been the understanding, the
clause supposed to confer it could not have pas
seu unnoticed, \\ hat, Sir; n clause which has
the tendency, not only to prostrate the dignity oi
State'Coui is, but to humble the sovereignly ol
State Governments, nt the foot ot this august
tiibunal, not to have elicited even u passing ie
iiitti k ! When every part of the constitution was
$o scriitanised, and almost every pow er propos
ed to be conferred so zealously resisted by those
jealous advoulles of btnle ngiit - m the Virginia
Convention, can it be believed that this ovei sha-
do.fving. this omnipotent power, would have exci
ted no apprehension? fin*', the keen anu eagle
eye of V a crick, Übnky had but detected it link
big under those terms, “appellate jurisdiction”—
had be imagined that ijrej'eferred to appeals from
Slate courts, he would have exposed and de
nounced it—and in that glowing and powerful
eloquence which was so peculiarly his ow n, he
would have warned his country men of “the chains
siat wjg*e forging for them.”
Hut, Mr Speaker, l have some other evid
once, of rather a mo. e direct and positive cha
racter; ainj.to this 1 particularly ask the atten
tion of the gentlemen from Mew Vork. Ihe
convention of thal Slate which the Fed
eral Constitution proposed a number of amend
ments., and among tnein was ,tle -following:
“That the Congress shall .not constitute, ordain,
or establish any tribunals of inferior courts with
4iny other thau appellate jurisdiction, except
such as may be necessary for the trial of caused of
Admiralty, and maritime jurisdiction, and for
the trial of piracies and felouies computfcd on the
high seas; and on all other clues to which the
’ judicial power of the U States extends, and
lii which the Supreme Court of the U. Slates lias
not original jurisdiction, the causes shall be
heard , tried and, determined, in someone of the
Sta’s Courts, with the right of appeal to the Su
g-eme Court of the U. States, or the proper tribu
nal, to be established for that purpose by the Con
gress, with such exceptions, anu under such regu
lations, as the. Congress shtdl make.” Now,
sir. ran we have any doubt ol the opinion enter
tained by this convention as to (he appellate jxow
rr conferred on the Supreme Court by the Con
* stitution ? Will gentlemen believe that that con
• vention of sages would have gravely proposed to
Amend tlut constitution so as io comer poweisal
ready granted? Sir, no man can beliefe it,
‘i hey conceived, as Hit: majority of the Judictaiy
Committee now allege, that this constitution did
not give this right ol appeal ; and, for the expres
sion of this opinion, we have been denounced in
Unmeasured terms. Sir. gentlemen must pardon
me when I tell them they have not examined this
question; they have been alarmed by the clamor
which was raised, and were afraid to sutler even
a discussion of the subject, lest they too should
be classed witii the nulhjitrs, traitors, and disu
nion is! s.
(Here Mr. Foster’s remarks wer* suspended
LT* the expimtion of the hour allotted to the con
siderations of resolutions.)
On a subsequent morning Air. F. resumed his
argument, by correcting a mistake which he had
made when he inevimwiy addressed the Mouse, j
In referen'y to ihe |H oddon of removing certain j
senses from the^., State l ot” s to the U. Starts’ Cir /
lAuitv t> any judgmant being ren-i
tras a provision perfectly anomalon*; that there i
was oo precedent for it in Fiiglaiid, nos in any of )
the States. Iha ye since understood that in some j
; of the States cases may be transferee! from the
* court in which they were commenced to one of a
. higher grade. I make this correction, because
’ I do not w ish to found an argument on any evro
! neons assumption of facts. There is, however, 1
| a with* and iile re nee between removing enscs jfrtwi
chie court to another of snmo State and n re
moval from a State Court, clothed by the consti
tot ion of its own State wub power to hear, ami
finally determine, the cause to a court of the U.
States. Between tile former, by the Constitution
of the State, there is a direct conrfection, not so
with the lajter.. And although it was competent
to the framers of the constitution to have given
this right af removing a case from the State, to
the Us States’, Court,- I cannot conceive that that
right is fail \y inferrible from the constitution us It
now stands.
But if tnis right does exist, and if Congress
may now, by law, provide for its exercise, it fur
nishes one of the strongest arguments against tfce
right of appeal from the judgment ol a State
Court. For if a party on being sued in a State
Court may remove the cause to a Federal Court,
and does not choose to avail himself of his pt i vs? !
ege. he cannot complain of the judgment which
may he rendered; he has voluntarily submitted i
to the jurisdiction of the State Court, and shouH, j
therefore be hound to abide the decision. Tie !
t plaintiff having selected the tribunal to adjndica e I
’ ( liis rights, would have still less cause of complaitt !
if the decision should be against him.
The lire reap ret shown to the dignity of State
Courts, by subjecting their judgments to icvisal
by the Supreme Court, is a matter of little im
portance to those who regard them as inferior
or suoordinate to tire Federal tribunals; but, sir,
regarding, as Ido, the State institutions while
acting within the sphere of sovereignty retained
by the States as subordinate to no power whate
ver, I never can consent to see them thus degra
ded iu rank, and shorn of their right*.
There .ire some other clauses of
the constitnfrnn eon ft: jurisdic
tion on the Supreme Court, the
meaning and extent of which I will
take this occasion to examine, as
they are intimately connected with
the subject of this investigation. 1
am the more gratified at having the
opportunity to do so, because it will
enable me to enter into the defence
of certain pi inciples yhieh have long
been maintained by the State of
which I am an umvoithy representa
tive ; principles which she holds most
sacred, and wliiclfshe will not tame-:
ly yield. Hot I will not fatigue the
House with an argument of my own.;
No, Sir, I will not rclv on my own ‘
feeble arm, w hen 1 have weppons so !
much more powerful and effective
within my reach. Sir, when I pre-!
sent tlie recorded opinions and expo- !
si lions of J ami’s Madison and Jous !
Marshall, 1 know they must com-;
tnnnd the respect of this House; and j
it is a source of no little pride and:
gratification that most of the promt-j
nent principles of which Georgia has
contended, in her controversies with 1
the General Government, are amply I
supported by the opinions of these-;
distinguished men.
The first clause of the constitution j
to which I refer, is that which gives
to the Supreme Court jurisdiction, in
“controversies between a State and :
citizens of another State.” Now, j
let us hear the reason why this pow-j
er was conferred. T give it in the
words of Mr. Madr on, and pnrt icu-j
lurly invite the attention of gentle-,
men who place so misch reliance on j
the exposition of the constitution)
made eotcmporaneously with its for-I
mation. 1 rcadTrom Mr. Madison’s !
speech in the Virginia Convention,,
in reply to gentlemen who were ve-j
hcinently opposed to the ratification,
of the constitution: “Its‘(the Fed-']
eral Court’s) jurisdiction iu contro
versies between a State and citizens,
of another State,” (says this gentle-';
man,) “is i*uch to, and per
haps w ithout reason. It is not irr
the j>owers of individuals to call any
State into Court, xhe only opera
tion it can have is, that if a State -
should wish to bring suit against a ci- 1
zen, it musl be brought bejore the Fe
deral Court. It appears to me that
this can have no operation but this,
to give a citizen a right to be heard !
in the Federal Courts; and, if a j
State should coTulcsccnd to be a party, 1
this courtmaytakccognizai.ee of it.’,’ i
What says Mr. Marshall on the
sauicj subject? “With respect to
disputes between a State and citizens ;
of another State, its (the Federal!
Court’s) jurisdiction has been decri- i
ed with an unusual vehemence. 1 j
hope no gentleman will think thal a
State will be called at the bar of the I
Federal Court. Is there no such j
case at present? Ate there not ma-1
ny cases iu which the Legislutme of’)
Virginia is a party? And yet the
•State is. not sued. It is not rational ’
to suppose that the sovereign power ‘,
shall be dragged bijore a court.
The intent is, to enable States to re
cover claims of individuals residing
in other States. I contend this con
struction is warranted l;v the words.
Hal, say they, (gentlemen who had
objected to this power) there will be ,
partiality in it, if u State cannot be
defendant—if nn individual cannot
proceed to abtaiu judgment against
a State, though he may tic sued by a
StiUc.”-. What is Mr. Marshall’s re
ply, to this objection? “It js Irenes-' I
;sary to be so, and cannot be avoided . jj
I sed a difficulty in making a Slate :
defendant which does not prevent its
being made plaintiff i” Sir, I make
no comments on these expositions of
Federal Court powers —they are too
pl.uin to require any.
opinions and arguments from
‘which these extracts have been read j
i were delivered in tlie year -ITSS. j
Who that heard them, Mr. Speaker',
would have believed that iu less than
five years, a suit would have been
instituted in the Supreme Court of
the U. S. by an individual againstone
of the Stales, and thal the jurisdicti
on would have been maintained by the.
! court? Vet sir, this was done in sc
veral instances; and one ofthe States
: against which suit was brought, was
I Georgia! that State which seems
doomed to he the subject of General
! Government experiments. And what
j course did Georgia pursue? Did she
quietly submit to be “dragged before
\ the Court?"’ Did she, in the lan-,
guage nf Mr. Madison, “ condescend j
to be a party ” to this suit? No, sir.;
She acted then, as she had'oit a more j
recant occasion. She considered!
j the summons “to the bar of the Fe- j
j derul (Supreme) Court,” as an attack ,
ion her sovereignty, and she disre- ‘
jgartied it, and resolved to protect j
herself against any judgment that
’ might be rendered against her. And .
ivvlnit was the consequence of her
firmness on that occasion? Al
though, perhaps censured and abtis
j ed lbr a tune, as usual, she very soon
I after had the satisfaction of seeing
; her principle's recognized by her sis- |
jterSlute*, as was clearly indicated
Iby nn aVnendment. to the Conutitu
’ tirfri, expiosdy providing that “the
fjudicial power ofthe li. States should
not he construed to extend to any
j suit iu law or equity, commenced or j
’ prosecuted against one ofthe United ,
! States by citizens of another State, or j
citizens or subjects of any foreign
| State.”
■ But, there is another branch of ju
risdiction which is claimed for the
; Supreme Court, under the Constitu
tion, but • one especially under the
section ofthe Judiciary act, and
Which has been, very recently uhso-l
lately'denied by the public author/
‘ties of the State of Georgia. And
I that is the right of the Supreme;
■ Court, Under its appellate power, to
j re* iew and determine on, the judg- j
| ment oi a State Court in a criminal )
prosecution, in which the State is at
; party. Sir,the view taken of this:
: subject by Mr. Madison, in the cele- j
•hi ated Virginia Report of ’9ft, is so
,clear an I conclusive, that ( cannot
deny myself the pleasure of reading)
it to (ho House: “Tlir. expression
I ‘cases in law or equity’ (in the consti- :
i tntjon) is manifestly confined to cu
m* oCciiil nature; and would e.e
jelude cases of criminal jurisdiction-.
■j criminal cases in law’ and equity
■ weuid boa language unknown to the ;
I law.”
“Th:sucer.eding paragraph ofthe
same section'’ (continues the teport) I
“is in hm uiony” with this construe-!
tion. It is in these words; In all’
eases aliening Ambassadors, other
public Ministers and consuls, and:
’ those in which a State s.hfill lie u par- i
j ty. ‘be Su promo Court shall have o
j rigjual jurisdiction. In all the o
; tber cases (including cases in laiv
and equity arising under the consti
tution) the Supreme Court shall have
j appellate jurisdiction both as to law]
and fact, with such exceptions, and]
I under such regulations, as Congress!
; shall make? This paragraph, by I
expressly giving an appellate juris-’
| diction in cases of law and equity a-!
rising under the constitution, to fact
as well as to law, clearly excludes cri
minal cases, where the trial by jury
}is secured, because the fact in such
cases is not a subject of appeal.”
} “Once more;” (tlm report adds)
j “the amendment last added to the
constitution deserves attention, as
‘throwing light on this subject. The
(judicial power ofthe U. States shall
j not be construed to extend to any
j suit in law or equity commenced or
; prosecuted against one of the United
j States, bv citizens of another State,
or bj’ citizens or subjects of any for
eign power. As it will not be 1 pre
tended that *ny criminal proceeding
could take-place against a State, the
terms law or equity must he under
stood as appropriate to civil, in ex
elusion of criminal cases.”
■ Such, Sir. are the sentiments and
reasoning of-tliis great slatcsniau on
this point. What consideration they
may be cull lied io, is submitted to
the jji.lg-.uoYt of the As,
however, his opinions on other sub
jects are so much sought after of late, i
and so nimcli admired, l trust they i
will not he without their weight on
this.
But, Mr. Speaker, I have another
authority, hearing so directly on this
point, that it must not he passed o
ver unnoticed—and to which the se
j l ions attention of the gentlemen from
j New York is again most specially in
vited. I have already stated that
when the convention of that State ra
tified the Federal Constitution, they
proposed several amendments, which
they urged should be adopted. They
also prefixed to their assent to the
ratification a declaration of certain
rights and principles, which they
conceived were not affected by tli*
constitution, and then added: “Un
der these impressions, and declaring
that the rights’ aforesaid cannot ho
abridged, or violated, and that the
explanations aforesaid are consistent
with the said constitU’.ion,” &c. “We,
] tiie said dclega’es, do assent to and
j ratify the said conslitution.” Now,
Sir, one of these “explanations con
sistent with ths Constitution” is in
thesh words: “That the judicial
power ofthe IT. States, in casts in
which a State may he a party, does!
not extend to criminal prossecutions,
or to authorize any suit by any person
against any Stated’ Mr. Speaker,
it is a well* established principle of
the common law, as well as the
plain dictate of common sense, that a
contract is to be construed as under
stood by the parties to that at the
time it was made. The Constitu
tion i#jr contract between the differ
ent States of this Union. New YoiL
was n party, and a very important
party to this contract; and she rs
solved to leave no uncertainty as to
her understanding of it, or ofthe ob
ligations she was about to assume*
tSir, it would really seem as if the
j members of that convention looked
forward with a prophetic eye to the;
disposition of this Government to ac- j
quire, by the aid of construction,
powers not delegated to it, and that,
they determined to plant round it as}
many guardsas possible against these :
dangerous encroachments. And]
j when, among the names
of which that convention was com
; posed, we find those of Jay, Clinton,
; Hamilton, Morris, Livingston, and
many others, the construction which
] they placed on the Constitution is en
titled to the highest respect,
i There is only one more clause of
the Constitution with which I intend
{to troubh) the House; it is that which
extends the power of the Supreme
Court to “controversies between a
! State and foreign States.” Let us
inquire of Mr. Madison what, is the
; intent and extent of this jurisdiction :
; “The next case (says this gentleman
in the Virginia convention) provides
for disputes between a foreign State
land one of our States, should such a
ease ever arise; and between n citi-
j zen, and a foreign citizen, or subject.
I do not conceive that any contro
versy can ever he decided in these
{courts, Iretween an American and aj
foreign Stale',' without the consent of j
the parties. If they CONSENT, pro- j
■ vision is here made,”
To this opinion I beg leave to add !
that of Mr. John Marshall, on the
same occasion. In reply to Mr.
George Mason, Mr. Marshall says,
“He (Mr. Mason) objects to its (the
Federal Court’s) jurisdiction in con
. troversies between a State and a for
eign State. Suppose, says lie, in
! such a suit a foreign State is cast, ]
! will she be hound by the decision?]
‘ If a foreign State brought a suit a-!
i gainst the Comiii.onwcaUh of Viral-j
in, i, would she uot he barred from i
the claim if tlie Federal Judiciary
thought it unjust? The previous con
sent of the parties is necessary.”
Thus we see these two gentlemen
concurring in the opinion, that to
enable the Supreme Court to excr
j else this jurisdiction, tlie consent of
the parties, the Slates, is indispensa
ble. To show more clearly the ab
surdity oi'this doctrine, that a foreign
State may bring ono of these States
into the Supreme Court, permit me,
Mr. Speaker, to present a single
case, as an illustration. There has
recently been a dispute between the
Stnte of Maine and the province of
New Brunswick. Instead, then, of
settling it by negotiation between
the two Government*, suppose Great
Britain lind brought an action in the
Supreme Court against Maine for
the disputed territory. Sir, it would
have been the standing jest of the
day; it would have been too ludic
rous for grayejudicial consideration.
Yet, a people residing within the li
mits of the State of Georgia, who,
some four or five years ago,.declared
themselves independent, have, as ru
mor informs us, instituted suit in the
Supreme Court, as a foreign nation,
against that State! mid that* too,
under the advice of distinguished
counsel. That such a case will be
sustained, I cannot believe Georgia
has not only given no consent to have
the case adjudicated by the Court,
but she will not feel herself bound by
any judgment that may be awarded.
Mr. Speaker, I have spoken oftho
powers ofthe Supreme Court, parti
cularly as specified in the twenty-fifth
section of the judiciary act being
vast and alarming. I concur most
sincerely with the opinion expressed
hy my worthy friend from Connecti
cut, (Mr. Huntingto.y,) at tbe last
session of Congress, that, “in com
parison with the Judiciary, all the ei
ther departments of this Govern
ment are weak and powerless.”
But, Sir, when the gentleman added
that it “controlled even Sovereignty
itself, by pointing it to the clause
which sayest “thus far shalt thou go
and no further,” I confess X did not
correctly understand the import of liis
language. Little, indeed, did I
dream how soon we should have a
! demonstration of this omnipotence,
and that my devoted State was, as
usual, to be the subject.
Sir, I have already had occasion
to speak ofthe repeated conflicts of
j the State of Georgia with this Gov
j eminent. She has, indeed, had her
j days of darkness and of trial; some
: times standing almost alone, ’ and
breasting the almost"overw hclftiing
torrent of public opinion. But, she
remained firm and unmoved'; and
when the storm has passed over,
when the excitement ha 9 subsided,
sbo lias had the proud satisfaction to
see Iter principles recognized, and to
hear her course approved. Shestill
acts upon the same principles;, sfle
j still pursues the same strnight-for-
I ward course ; and in her present dis-
I Acuities she confidently anticipates
> the same result. She only carried
: into practical operation tire doctrines
jSO cto-iy laid down, and so ably
maintained, by Madison and Mar
shall; these are the “burning and
shining lights” which illuminate her
path, and guide her coarse; and it
lis for an intelligent and impartial
j public to say whether, for thus act
j ing, she should be placed under the
! ban, and devoted to destruction.
Mr. Speaker, it would be gross
j affectation if I were to speak of tho
distinguished individuals who adorn
the bench ofthe Supreme Court m
any other terms than those ofthe
most profound respect. But the re
ference which is so generally enter
tained fur the characters of the judg
es excites some of the greatest ap
prehensions as to the dangers likely
to grow out of the powers of the
court. Sir, let ns remember not on-
ly that these judges are fallible, but
that they nr e; not immortal. That
splendid orb which has been so long
j the centre of this system—which in
j its meridian shone with such bright
! effulgence, Sc which preserves such
| mild and steady lustre in its evening
! hours, is fast verging to the horizon,
and must soon set. Its distinguish
ed secondaries, in the revolutions of
years, must also finish their course
—and who can foresee the character
of their successors? With the same
powers and without the same purity
of purpose to direct them, v/ho can
; tell what mischiefs they may not
j commit ? Against these dangers it
is our duty to guard. We cannot
j too cautiously and securely provide
j against the exercise of arbitrary
power. No policy is more unwise
and unsafe than that of confiding
powers with reference to tho iiufivi
i dl,u * by whom they are to he
ciscd no mutter how puro and ele
vated the character of tlmt individ
ual may he. Sir, it was for the
purpose of providing against future*
hunger, and with the hope of cheek
ing art evil which ia constantly in
creasing and which threatens the
peace and harmony of our country .
the interference of Federal with
State authorities—that tho majuiitx
ofthe Judiciary Committee wete in
duced to recommend a repeal ofithut
section of our judiciary net a Inch
confers upon your-Supreme Court
such unlimited powers.
As to the resolution immediately
under consideration, I have only to
say iu conclusion that, as the major
ity and minority of the committee
differed so widely in their .views of
the question prosented to*” them, it