Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1850-09-20
~r,,dlc,ion in suit. between citizens of diHsren, States" the


i, ~ri,dlction in suits "between citizens of different States tnt
term controversies" Is used. u.
But prefer to employ the comments Of Chief justice
Marshall upon this point, to any of my own. IN ms cele
hro,ed speech In the case Of Jonathan Robbins, he said:
nRv the Constitution, the judicial power of the U. STATES
10 extended TO all cases, in lau and equity. arising unde
H. CONSTITUTION. laws, and treaties of the United States
s s, ,hs resolutions declare the judicial power to extend Il
ali questions arising under the Constitution, treaties hnf
"a If the United States. The difference between the Con
s,itution and the resolutions was lna'eIlal ana apparent, =
caee in law or equity was a term well understood, and 0
limited sinnihcation. Ii was a controversy between parties
which had taken a shape ut judicial decision. IL inc Jun!
cial mower extended to every question under the Constitu
30. .i, r. +, ,.nrid involve almost every subject proper for lesis
l,riye discussion ard decision; If TO every question uhdr
the laws and treaties of The Cnlted states, y WY -, III,
Ines, every subject on which the Executive conlu hr'. ~
iiyis;,n of mower which the gentleman had sta'ed cou'
ryist M longer, and the other department wonla DC SWAT
lowed Mp hy the judiciary J.. -.
,,y;tg. The Constitution had never been understood To con
lr on The department Any POLITICAL POWER "HATE'EF
RI rome within this description, Il question must assume
le.al form for forensic litigation and Juaiciai decision. intn
must be parties 10 come into court, VINO can te reaciieH D!
is process aud bound by its power; Whose nights adhit "
ultimate decision by n tribunal 10 which tiey are bound Il
submit. r.;, 1T; mn,
"A case in law or equity proper Tor Judicial decision ma
arise under n treaty, where the rights oi individuals, acqnir
81 y, secured bv n treaty, are IL be asserted or defended II
cuurt-as under the fourth or sixth article ot the treaty .
peace with Great Britain, or under those articles OF our late
treaties, with France, Russia, and other nations, whIcl Sc
c,,re 10 the subjects of those nations thelr property wlthiF
the United States; or, as would be an article winch, lnst,ad
of stimulating 10 deliver up an offender, should stlpullie h!s
punishment, provided the case was Punissanle oy me Jaw
and in the courts oi the United States. Eat the luelcia
mower cannot extend to political comiac.s, Il, ile eStaoiSi'
ment Of the boundary line between thu American and BIZ
fish dominions; the case OF the iaie guarantee III our 'iealg
with France; or the case OF The delivery ol Il 'nn'ceftr, un'
der The twenty-scyenth article Vi our present treaty win
Great Britain"
s,iu,ion. and from The history OF il, that the cases ~ law
and rouiivn and "controverses" 10 which the Jtdicial
power Of Inc United States extends, are those Involving
questions Of "me'ln and tuu'n'- Suen rs are me uSn' SUI Mo.
lecrs of forensic litigation. 1t most certainly does nor reier
Ia all controversies, Of no matter what character, between
The parties enumerated. Take two cases for Illustration, ana
verv many others could be added \ lew years ~" u coh-
,r,ve,sy existed between New York and Virginia, arising
under the Constitution ard lawsof the United States. me
Governor of Virginia made a demand upon the Governor oil
New York for The surrender of three luglt!ves from justice.
Tho Governor of New York refused TO comply, and assigned
rea sons for his refusal, which were considered ny virginia Oh
the most alarming import. The Governor oil each >tate
was backed hy the Legislature OF their respective states;
and thus the controversy became eInp'aticaiy one between
two States, and it was u very angry one. Now will any one
s,y thar such n case as that could he tried in the Supreme
Court How could the parties he brought into COURT In
such a case, how could thu Judgment Of the court be enior-
ced7 Acain-the judicial power Of the United States eX-
tends TO controversies between q State and foreign States,
and 10 controversies ITO which the United States shall be a
party" There were questions Of boundary between Maine
and Great Britain, and between Texas ana Mexico. WIZ
any one say the Supreme C"uit could take jurisdiction oi
such u question, even il lie foreign State Shoa!d DC Wiling
10 trust il 10 our courts!
The Constitution did not design 10 confer upon The Su-
I irene IDull uIl>LIE'lJ ~ hN 'tI'i 4N'st't ''' $500
as are the usual subjects III forensic Iii !anon. 50 iir rom
H. being the purpose nf the Constitution Ia confer upon any
one OF the tliree departments OF our Government po~eS
Greater than usually belong u them III other constitutional
Governments. il is most manifest that the purpose was great
" 10 restrict them. But Questions ri boundary 6etreea
St.!es have ALWAYS been considered political, and not JUDI
Gin. Such a construction a would give the Supreme Court
jurisdiction in the case" under consideration, would, III the
language of judge Marshall, swallow up ny the !ua!ciity
The other departments"
Let us les, the question Of The jurisdiction Of the Supreme
Court in the case ot the Texan boundary hy the principles
have laid down.
\ STATE? There is none. Congress frequently has been cali
ed upon Ia provide II, but il las refused. un"n WHOM WIN
Won serve the ordinary process! Upon the Governor? He
; mai mo STAFF. Upnn the Attorney Generall Why upon
him7 Upon the Legislature? How w"u!' you do y! Ny
being able Ia serve the process TO commence me sun w"ald
y,u proceed against The State 10 ouiiawry In the cases
between States which have been decided heretofore oy TIE
Supreme Count, beta parties Voluntarily appeared. IL -
true, consent cannot give jurisdiction; an' process M! oe
waived. But suppose this difficulty overcome ana Texas
should refuse u answer. how could Won compel her! Would
you issue an attachment, and imprison her for attempt -
Iinon whom would vu serve vuur attachment; ard whom
woull vnn imprisonl Would you proceed against her by De
iani, ! Where is the statute /" authorize 20" t" do So
But suppose the parties should appear. Then The question
of jurisdiction arises.
The first Thing la lie decided in questions OF jurisdiction
is. a. to the character OF the parties. You must ascertain u
the parties are such aS can lGitate IN te i"iuHl' before !o"
inquire IL 10 the nature u the question. "" matter "hi' i''as
be the nature vi tie question, the parties mast be sIcl as
can come an! to- brought iato court, ana. when ihcie are OUT
,wo If them. viii remain IN tie record 10 The end % The
cause, and can b. bound by is Judgment. THIS litigation
must b. mutual. Now what parties are mere 10 ms qh's-
lion OF boundary. who can sue ar be snet! In The first place,
DENY that the United States has any controversy, techil.
cnlv speaking with Texas. II there be any such IN one, l
dem md Ia know when il arose, and VINO made II. ihe ffe-
.ident cannot make a legal controversy Tor the ! nliea >ta'es.
nor can a metmher of this House or oi TIE other GO II. ~
can be done only BY the Government, and not by one Depart
u,,nt II il. Now, sr, when or where has the Government
made any controversy with Texas as to her boundary! II
had one in behalf Texas with Mexico; but that Is settled,
and there is nm end ot II. Bat when and where haS IL MADE
one for Itself? The President has most ILLEGALLY ATTEMPTED 10
do go. Bat hc has moi YET become the state as Il + reiich
monarch claimed 10 BE-. although ] admit hs prttensl"nS al.
RAPIDLY leading that way. Ii the United Stl;es be noth
parry, Is New MeNicol Sir, there is M such political being.
She expired when she was conquered by our arms, ana an
u,x.j l., our territory by the treaty. What ever doubt there
may he a 10 The existence Of Mexican municipal iiw IN me
territories We acquired from her, the:e can DC no eou'' 'h''
her uoliiical ia~ has expired.
gut il i. said. ii wc adm; her as a State she becomes re-
yived. and tlat then She would be a party capable oi htiSt-
Ting with Texas. | have already shpwn that Sue cannot
be admitted pending the dispute with Texas without NE
consent ri Texas. But suppose am wron. IN tiis, SUI,
considering the character al The controversy, New MeAif"
would moi be such Il party 10 il a the CONT cdula reco3n'Z..
4 pafty tna controversy, 10 be a proper one on the record,
must he such an one ia vii. continue on II Ia the END oi the
clause. survive ,ho final decision, and be bound bv il. Bu!
If the court should dcride against New Mexico. II would an
initiate the party, deprive itself vi jurisdiction IN me very
act oi deciding Ihc ease upon lis merits. and be incapaplr oi
pronounriug II judicial decision upon the question II under-
iook 10 try. Parties sometimes prove themselves OUT ~
court; but here tn. court would determine il had no case he
tore il in the very act Of deciding il. II may be sa!o, now
ever. that a part OF New Mexico l. not even claimed oy
Texas. and that that portion would still constitute the STATE
Very little of New MEXICO capaole nf habiiation by civilized
man liz. west al the Rio Grande. The portion oi Mem Mex
leo west of that river has no white population. It's entire
population consists of about ten thousand Pueblo lndians.-
The idea of such Il country as that constituting b Stite oi
This Onion is absolutely ludicrous. Besides, as shall show
directly. there is nobody thee who has the constitutional
qualification of Senator or representative.
These remarks may be applied also, 10 some extent, TO the
other PARTY. 1t is contcnded that the United States BY The
treaty succeeded Ia all the claims OF Mexico. Now II is
known that Mexico claimed the whole OF Texas up to the
Sabine; and il vas This claim she was preparing to eniorce
when our war with her commenced. Suppose the supreme
Court should sustain these pretensions, what then would
become OF the cause!
But suppose all The difficulties overcome, how would you
enforce the decree? The question is not one about property,
for there i not Il foot of public land in New Mexico which is
capable OF individual enjoyment. II has all been appfo-
priat,d more than a hundred years ago. The controversy
is one about political jurisdiction. In such a case how is
the decree 10 b. enforced? Are The Texan courts and their
officers 10 BE- driven out o: The Territory? If attended with
10 zee il would be civil war.
| know l shall be told tina, the Supreme Court has taken
jurisdiction of questions of boundary between States; but In
those cases the parties voluntarily appeared, and the court
acted :ery much as arbitratoTs, selected BY the parties, To
whose Judgment they would in good faith be bound 10 sub
nit. But the question will be j very different one whenever
a State refuses 10 appear or 10 recognize its authority.