The daily union. [volume] (Washington [D.C.]) 1845-1857, 1850-10-11

sir II New Mexico under these circumstances, IA ad
med will not Texas be Qusted OF her Jurisdiction
vision OF the constitution which am consider ng, an.
also the clause which deceres that nothing In this
siituton shall be construed TO prejudice any can
Bui il Is said the admission Of New Mexico as Stat
would not prejudice the claim OF Texas-that after he
admission the case could be carried before the Supreme
Soar;; where the question OF boundary would be I'm
Sir utterly deny the jurisdiction Of the Supreme
Court in any such case | deny that the coonsliu
sr whatever" But a question Of boundary between
States is one affecting their sovereignty in most vita
nows4 snd IL Ss a,sa q pSs %
70 cases in law and equity arising under The consu.
ton and the laws Of the United States treaties made OF
which shall be made under their authority 10 all cases
affecting ambassadors Or other public ministers and
sns; TO all cases Of admiralty and maritime jurisdiction
% controversies 70 which the United States party
70 Controversies between two or States, between
State and citizens Of another State, between citizens Of
different States between citizens of the same State claim.
ing lands under grants Of different States and between
State and citizen thereof and foreign States citizens OF
The eleventh amendment Of the constitution declares
that the judicial power o the United States shall not be
mencd q prosecuted against one Of The United States BY
czss q another Sae or BY citizens or subjects Of any
The words cases in law and equity" and contro.
verses employed in the second section OF the third arti-
Gle OF the constitution are used as synonymous This is
showa BY the second clause OF the second section and
also by the amendment just referred TO-. The second
clause is n these words i" IN all cases affecting ambas.
sadors and other public ministers and consuls, and those
@ Ssse sss e 2a re- aPs1s co'
fore mentioned, the Supreme Court shalt have appellate
jurisdiction both as 70 lazy and fact" &C. Here we see
ns I, ~ originally stood giving ae
zens OF another Sate" used the word controversies"
but that in the amendment repeating il they used the
clause Of the second section o article I third Tie ia language ssS
In all cases affecting ambassadors and other public
ministers and consuls and those ia Which State shall be
party, the Supreme Court shall have original ursdic
ton and in the provision gviag the federal courts ju
risdciion in suits between citizens Of different States
the term controversies" is used.
Bui prefer 70 employ the comments Of Chie Justice
Marshall upon this point TO any OF my own. In his
celebrated speech in the case of Jonathan Robbins, he
| said
"By the constitutions the Judicial power Of the United
States sextended 70 all faw and eq~ty arising
der the constitutions laws and treaties Of the United States
bst The Iesoloons declare The judicial extend
laws oi the Uned States. The diersnce between the
sa os ne a. was % ana appa
and of nlifed sigslfcatom was controversy bet
The Judicial power extended To- every gSssfio Ssdsa he
IL would nvolvs almost every subject proper
under the laws aud treaties oi The United sa.ss 4 would
involve almost every subject which the Executive could
stated could sass no and the oAss
would be swallowed up by the Judiciary"
By ding Judicial power to all cases in law and
equity the constitution had been understood
TO within this description, que stion assume
legal form Tor forensic litigation and Judicial decision
reached by It's process and bound by lis power whose
rights admit Of ultimate decision by tribunal 10 which
- case in law equity proper for judicial decision
may arise usder treaty. where the rights of individuals
enaed in couras under the fourth or sixth article Of the
treaty Of peace with Great Britain, under those articles
OF late treaties with France, Russia and other nations
which secure to the subjects OF those nations their prop
er,y within the United Statesi or would be article
which, instead OF spulating TO deliver offender
Should stiPuaie his punishment provided the
punishable by the laws and in the courts Of the United
States But the judicial power extend political
compacts-as the establishment Of the boundary line be-
Tween @ ae American and British d;Smnon: The Ca case Of
OF the delivery OF murderer under the twenyseventh
tcls Of our present treaty with Great Britain"
Now il is perfectly evident, from the language Of the
constitution, and from the history Of il, that he
in law and equity and "the conroverses to which the
Judicial power OF the United States extends those in
volving questions OF "msum and uum'-such the
usual subjects of forensic litigation II most certainly
does not refer to all controversies, OF matter what
character, between the parties enumerated Take two
added A few years ago, controversy existed between
New York and Virginia, arising under the constitution
and laws of the United States. The governor Of yir
ginia made demand upon the governor OF New York
Tor the surrender OF three fugitves from justice. The
governor oil New York refused 10 comply and assigned
reasons for his refusal which were considered BY Vr
each State backed by the legislature OF their respect
i've States, and thus the controversy became emphacally
between two States; and IL n very angry
Now will any say that such that could be
tried 40 the Supreme Court How could the parties be
brought into court In such case, how could the udg
men OF the court be enforced Again the Judicial
power of the United States extends TO controversies be.
State and foreign States and to controversies "to
which the United States shall be party" There were
questions OF boundary between Maine and Great Britain,
and between Texas and Mexico. Will any say the
Supreme Court could take jurisdiction OF such ques
ton, il the foreign State should be willing TO trust
il TO courts 4. t.t. #0 UI0t.
The constitution did design confer upon the Su.
preme Court jurisdiction OF any other questions than such
are the usual subjects o forensic litigation. So far
from its being the purpose Of the constitution to confer
upon any OF the three departments OF government
powers greater than usually belong to them in other
stituonal governments II most manifest that the pur
pose was greatly TO restrict them. But questions OF
boundary beoeen States have always been considered
tical and not judicial. Such construction would
give the Supreme Court jurisdiction in the under
sideration would, in the language of Judge Marshall
" swallow up by the judiciary the other departments" "
Let test the question Of the jurisdiction of the SUI
preme Court in the OF the Texan boundary by the
principles have laid down.
First, as TO the process. What judicial process will
reach State There is Congress frequently has
been called upon TO provide it, but II has refused Upon
whom will you serve the ordinary process Upon the
general Why upon himl Upon the legislature How
would You do III Not being able TO the process TO
commence the suit would you proceed against the State
10 outlawryl In the between States which have
been decided heretofore by the Supreme Court both par
ties voluntarily appeared II is true consent cannot give
urisdlciion but process may be waived But suppose
this difficulty overcome. and Texas should refuse 20