The national era. [volume] (Washington [D.C.]) 1847-1860, 1859-02-24


which no Jurisdiction is given them, II Is the
duty of the State to disregard such assumption,
and vindicate its reservations; and when the
State seeks to punish for acts under Federal au-
thority, as for collecting imposts the Federation
will disregard such attempt, and vindicate Its
powers. In such cases, neither the decisions OF
Legislatures or courts have any binding force.
Be not alarmed at the collisions that thus arise.
They show that we have not lapsed into the calm
of despotism. Through them, Freedom breathes,
and great principles renew their life. 1t is the
only way by which the public reason, that must
ultimately decide all these questions, can be di-
rected to their solution; and we shall be the
wiser and better for the collisions.
The twenty section of the Judiciary act,
which propose to repeal, provides for direct
supervision OF the State courts by the Federal
judiciary, whenever they decide against party
who claims privilege or exemption by virtue OF
Federal authority though, if the decision is in
favor of such party, however erroneous, his OPP
ponent is without remedy.
g SEC 25. That final judgment decree in any
the highest law equity a State in which
decision OF the could be had where drawn in ques
ton the validity of treaty or statute Of or an authority
crossed under the United States and the decision against
their validity; where drawn in question the validity OF
statute oil authority exercised under, any state on
the ground OF their being repugnant TO the tre
laws Of the United States and the decision is in favor
Of such their validity where drawn question the con
statute Of commission held under, the United States and
the decision IS the title, right privilege, or exep
uon specially set up OF claimed " either party uhuer ss
clause oil the sd Constitution, treaty, statute, or cDs
sion, may be reexammed and reversed affirmed in the
supreme Court Of the United states, upon writ OF error
Sc-l United States Statutes at Ldyge, page So
This section of the statute is one of the IN
corrected errors of those who so early sought to
nationalize this Federaton the principle OF it is
clearly vicious. | speak not now of the twelfth
section, which is subject TO some of the same
objections.
All cases, either at law or equity fall under
the jurisdiction either exclusively of the Federal,
exclusively of the State, or concurrently of the
State and Federal courts, wherever the suit is
first instituted When the jurisdiction is exclu-
sive, any similar proceedings elsewhere are abso-
lutely void. There is necessity for either a
Federal or State court TO review on error the
opinions of tribunal that has no jaris1ition in
the case. They may be treated as nullty; and
the court having exclusive jurisdiction will pro-
coed as though no other proceedings had been
had.
In nearly all the cases in which Jurisdiction is
given by the Constitution to the Federal courts
it is admitted that thA State courts have con-
current jurisdiction. And the question arises,
whether the State courts, having properly acqui-
red jurisdiction are courts inferior to the Federal
in the sense that their final decision should be
subject to review on appeal on error to the Fed
eral courts?
Ohio has as yet always submitted to such re-
view and in cases deeply affecting her sover-
eighty. | would not counsel our own Supreme
Court, for light cause, to refuse obedience; yet
the signs indicate that the time may soon come
when such refusal will become duty. Acqui-
escence in this Federal supervision has been by
no means universal. Virginia [see Appendix
and Georgia have openly and with impunty re-
pudiated the right of Federal review, and it has
been often questioned in other States. State
notification is always dangerous, though some
times a necessary, remedy. Congress should re-
move the temptation by the repeal of statute,
which any State at pleasure may nullify, and for
which we find no constitutional authority, as |
will show.
If the Federal court may lawfully review final
decision in the courts of the States that author
ity of course is given in the Constitution. Judge
Marshall, in Cohens as. Virginia (6 Wheaton, 264,
see page 4lG,) claims that the words of the Con-
stitution give to the Supreme Court appellate
jurisdiction, in all cases arising under the Con-
stitutiOus laws and treaties, of the United States
The words are broad enough to comprehend all
cases of this description, in 'ohdteUer court they
may be decidcd." Let US see what are these so
broad words:
SEC l. The Judicial power Of the United States shall be
ystedkn one Supreme Court and in such inferior courts
tie Congress may from time time Orain and establish The
their Offices" &c.
This is very express. The judicial power is
vested in the Supreme Court and courts created
by Congress, not lin whatever court" certain
cases may be decided"
Again, Immediately following:
SEC . The judicial power SHAH extend 10 all clses ia
law and equity arising under this Constitution" &c
What judicial power pray? That of any of
"whatever court" may decide constitutional
questions So it would seem, from the language
of Judge Marshall; and such would seem 20 have
been the idea of those good old Federalists who
framed this twenty-ffth section. But, in looking
at the simple instrument itself, we see that " the
judicial power" is the judicial power of the
United States" just spoken of and is vested in a
Supreme Court and in other courts created Cy Con-
gyeSs. The judicial power of the several States,
or of foreign States, may extend to these cases,
vet not by virtue of this instrument, If plain
tiff bring defendant into the courts of Great
Britain, or of~New York, and claim right, or
the defendant claim an exemption under the
Federal Constitution, or laws, treaties, such
court must necessarily decide the claim. They
are courts of general jurisdiction, and decide
upon ALI claims lawfully brought before them,
under whatever Constitutions or laws they arise.
But they do not so decide by virtue of this sec
! ton, and their power is not the Judicial power
! of the United States
The second paragraph of this second section
provides directly for this appellate jurisdiction
of th1Supreme Court. 1t is the only pretended
authority for the twenty fifth section of the ju-
/ dietary act and ask careful attention to its
language:
an aH cases affecting ambassadors &c, the Suprcm,
Court shall have original lur sdctou In all other cases be
fore meoad the Supreme Court shall have appellate jurs
| dicton,g &.
What cases are before mentioned?" Why
all those enumerated cases to which " the judi.
cial power shall extend" The judicial power o
New York? of Great Britain? No; but the
judicial power of the United States, "vested il
one Supreme Court, and in sHch inferior courts
| as the Congress may from time to time establish
So we see that the "appellate Jurisdiction il
not from State courts or foreign courts at all
aud I" the words . are not " broad enough t
comprehend all cases involving construction
of Federal laws, &c, in whatever court the
may be decided"
/ But, as if conscious that the words of tn
Constitution were not broad enough to Civ
"appellate jurisdiction from any bat thoS
courts in which the judicial power of the Unite,
States is vested and which are created by Con
gress, the same learned judge, in the same case
(pagesEl4, 4l5,) infers this power not from an
g uQr,s but from his idea of the general rela
ton OF the Federal and Stale Governments.
We .,had, that in Government acknozlcdgedy 81
pTgse with rcspcct objects Of vt interest IA
ton, there Is nothing iicous~ AT I'LL sound reason
compatible 7itl the nature government, making all il
derDtL4 suifeme, 90 lar respects those objects an
| SO tlcC siry their attainment The exercise
tEr avpf4 power those Judgments of the State ri
mails Which hay cunt.'e tie Constitution laws Of ii
Unt-d S,Jrf na to the attainment VI those objects.
= secEs % be corrolary fcop this polite
hat the Federal courts should either possess excl
sive jurisdiction such cases, power revise ud
ment rendered IN them by the State tribunals"
PetAaps they should" but, to see whetht
! they 9&tuslly do possess it, we must look to til
Constitution Itself, either for an express grant
the Jurisdiction, or to gee whether it is dire,
inference from an express grant. The judici