Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1816-01-30
INTERESTING CASE.
Vrginia Court Of .Ahheals.
''"n.'r' On ManJlate from the Supreme
Mari, Court ofthe U. States
JUDGE BROOKE'S OPINION.

in this Court, comes back on a Mandate
from the Supreme Court Of the u States,
wherein the judgment of this Court hes
been reversed by which mandate it is re-
CURED that such proceedings be had, in the
sad cause, as according t. right and JUS
tice, and the laws of the u States, and a.
sreeably to ihe judgment and instructions
OF the said Supreme Court, ought to be
had.
The question that ar ses out of this man
date. and which is now to tie decided by
this Court. is certainly very delicate one.
anc c:SS!.. g &c approached with great de-
ttrence for the opinion of the Supreme
{ urt of the u. States but, rs the decision
Of 1t involves in It Ii gh duty on the part
OF this Court, it must be examined under n
proper sense of the obligntion which that
duty imposes. AS preliminary to any u-
yest'S 'tion OF the power of the Supreme
Court under the Constitution of the u.
States. and the Act of Congress which has
been relied on, 20 issue the mandate in
question, 1T has been urged by the counsel
who support 1t. that the opinion of the SUI
premc Court is conclusive upon this Court;
that having decided on the Consttutionality
and legality OF its own powers. it would be
an inversion OF the due su5ordinati0n OF an
inferior to a superior tribunal, to question
its authority. The obvious objection to this
argument is, that it assumes the PROPOSE
ton which is denied, and begs the question
that is to be decided.
1t 1t were admitted that this Court is an
inferior Court III relation TO the Supreme
Court of the u. States, & that both Courts
were but parts of the same system, in the
sense now contended for, it would seldom
happen, that the mandate of the superior to
the inferior would be questioned. Yet, I'M
der that state of things, if it were permit
ted to argue from the abuse of power, ca
ses might be put in which the power Of the
Supreme Court might be SO irregularly
exercised, as to compel the inferior Court
to disobey its writ. Where power is not
unlimited, however high the tribunal in
vested with it, subordination must be linn
tied; and there will be point at which
obedience will end, and resistance begin !:
nor does this course of reasoning involve
in it any INSTRUMENTATION of the Inferior to
the superior. Where the power or iuris-
diction of the latter is admitted, there is
still wide field for the exercise of its SUI
periority, having the exclusive right to de-
eide on the law and right of the case.
The preceding remarks VII be entitled
to more weight, when it is recollccted that
1t has never yet been conterded that the
Supreme Court can take jurisdiction Of all
the cases that may come within the iuris-
dicticn of this Court.-It Can take urisdic-
ton, under the Constitution of only a part
OF the subjects of jurisdiction here vet,
according to this argument of implicit che
dlence to lis mandates. it may sweep away
the whole of the jurisdiction of this Court,
rs the Suprem me Court of the u. S. & Contra
~ to thep ain letter ofthe constitution, which
gives that Court some jurisdiction, take ALL
ne question, then, must occur here, wheth-
er the Supreme Court, under the authority
OF the 25th section of the act of Congress
to establish the judicial Courts of the u.
States, has exercised power not belong
ing to 1T, under the Constitution of the u.
States. That question may be general or
particular. The general question is, has
the Supreme Court the power to issue its
mandate 10 this Court in any case ?-The
particular question will be, hasit that DOW
er IN the case before us Unless TIE gen
eral question shall be decided in It's favor,
1t will be unnecessary 10 examine how far it
has transcended its power in the case un-
der consideration.
In deciding this first question, recurrence
must be had to the constitution itself: f,r
though / subscribe TO the doctrine OF one
Of the counsel, that, to the extent, thattEe
States have pared with their power. thew
ought to part with their pride, yet cannot
as implicitly assent 20 The position that,
when State rights are violated, thew can
only be defended in the general government,
IN Congress, or by appealing to the PEG
pie. The State authorities have been said.
with great force, to be the guardians of the
peoples and their own rights.-The RIGHT
to resist infractions of the Federal Consti-
tHtlon proceeding from the general govern
ment, or any department thereof, has been
solemnly asserted in Virginia, (a) ard
seems to result from the nature of the two
governments. In the work, entitled the
"Federalist," SO much relied on, in the
argument, for sound exposition of the Con
stiiuion, Vol. 2, p. S6,) il is said that. a.
mong people Consolidated into one ma
ton, an indefinite supremacy over all per-
sons and things, 81 far as they are the Oh
jeccts Of lawful government, is completely
vested III the national legislature but. A.
mong communities, united for particular
purposes, it is vested partly in the general.
and partly IN the municipal legislatures
in the former case, all local authoriti are
subordinate to the supreme In the latter,
the local or municipal authorities form dis
tinct and Independent portions Of the SUI
premacy, no more subject, within their res
pectve spheres, to the general authority,
than the general authority is subject to
them within its own sphere.
In this relation, the Federal government
cannot be deemed national one, since its