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there might be uniformity in the decisions of the State courts, it was matter of express compact, that such an appellate power should be exercised. Such a sinall measure of control over the State courts, could be atteuded with no danger, and in no way could be destructive of the independence of the State judiciaries, as it was to be confined simply to admiralty courts. The States did not then fear consolidation, nor could they contemplate any thing like clashing and conflicting claims for jurisdiction between the State and Federal authorities, either legislative or judicial. The powers of Congress engrossed in parchment were great, but the true supremacy was in the States. There was no Supreme Court which claimed the sole and exclusive right of construing the articles of Union, and a consequent supremacy over the State judiciaries. There was no cause, in fact, for State jealousy.

But tar different was the state of public opinion when the new Constitution was proposed. The inefficiency of the Confederation was apparent to all, and a general decay of commerce and of public and private credit was visible every where. The intelligent men of the country, in contemplating a new organization, foresaw, that no plan of government would answer which was not to act upon persons. The necessity of a government, which was to hold the purse as well as the sword of the nation, now made it indispensable that all the precautions against the abuse of power, which wisdom or foresight could suggest, ought to be adopted. It was now proper that the States should have good security, that the minor sovereignties should not be absorbed in the central government. There was but one method of accomplishing this, and we defy the wit of man to devise any other. This was, by making the States, within their spheres of jurisdiction, as sovereign and independent as the General Government within its prescribed sovereignty. The Federal and State authorities were intended to be co-ordinate and independent, that they might balance and check each other-a mutual spirit of concord was the only basis for a durable government. It was not, therefore, safe to give appeals in any case from the State courts. The independence of the State judiciary, was as essential to prevent the encroachment of the Federal Government upon the rights of the States, as that of the Federal judiciary to protect the General Government against the States. This co-ordination and independence of the State authorities or departments, was to be the palladium of State sovereignty-the great security that the States were to possess against a consolidation of all power in the Federal head, and hence it was, that the very power of appeal which the States

were willing to give, and might safely confer on a Supreme Admiralty Court of the Confederation, they were now resolved to refuse, in any case, as destructive of the independence of the State judiciary, and, of consequence, of the sovereignty of the States. We think this a sufficient answer to that part of the arguinent of the Supreme Court which would justify the propriety and necessity of an appeal in all the cases of federal cognizance, because, under the Confederation, this Federal Supremacy was given. The cases, as we have already said, are by no means parallel. The appeal from the State Admiralty Courts, could not affect the sovereignty of the States one iota. The appeal now claimed, according to the doctrines of the Supreme Court, must inevitably lead to Consolidation. The appellate power is to extend according to Chief Justice Marshali's opinion, to every case whatever, of which the Federal Courts could take original cognizance under the Constitution, and between parties too not therein nained. For instance, a judge ment given for the plaintiff in a State court, in a suit brought by a foreigner against a citizen on a common bond, in which neither the validity of the treaty, nor of the Constitution or a law of the United States, nor of a commission or authority of the United States, has directly or indirectly been drawn in question, (the only cases in which Congress has yet given the appellate jurisdiction,) may, if Congress shall so enact, be carried up to the Supreme Court, and there reversed, if there be a suggestion of error in the record. In a case between citizen and citizen of the same State, a case not specified for Federal cognizance, but virtually excluded, it has already been decided, that if any question shall incidentally arise in the progress of that case, under a law of the United States, treaty, &c., this is sufficient to make it a case for the appellate jurisdiction. Congress gives the appeal in a few; the Supreme Court gives it in all the cases of Federal cognizance. If the parties be not such as are mentioned in the Constitution, the Court looks to the character of the cause,” and gives jurisdiction on the ground, that if the case arise under the laws of the United States, it is immaterial who the parties may be. If again, the case be not one of the enumerated subjects, then the Court looks to "the character of the parties," and also gives jurisdiction, on the ground, that if the parties are those named in the Constitution, “it is unimportant what may be the subject of controyersy,” or, in other words, whether it be an expressed subject or not. Thus, what with purties and not cases, and cases and not parties, here is a supremacy claimed over the State tribunals, which, if not universal, is so nearly so, as to be productive of all the evils which would

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follow if there were both in Congress, and in the Federal judiciary, a negative upon the acts of all the State authorities, judicial and legislative. Congress may pass what unconstitutional laws it pleases, and the State tribunals cannot protect the citizens of a State oppressed by these laws, by declaring them void, without encountering a negative by the appellate power of the Court of the offending government.

As far as the sentiments of the General Convention can be ascertained from the journals, this was not the understanding of that body. The judiciary article, it seems, was called up for discussion on the 27th of August, and this clause then stood in these words, in the reported draft of the Constitution. “ In cases of impeachment, cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, this jurisdiction shall be original. In all the other cases before mentioned, it shall be appellate with such exceptions and under such regulations as the legislature shall make.” (Jour. 226.) It was on that day altered so as to read as the clause now stands. There was, certainly, a reluctance to leave the appellate jurisdiction undefined, as appears from an amendment proposed on the same day, which had it been adopted, must have empowered Congress to confer on the Court still more power than it exercises under the judiciary act of 1709. The amendment was as follows: “in all the other cases before mentioned, the judicial power shall be exercised in such manner as the legislature shall direct.(Jour. 300.) This amendment gave the appellate power by clear implication, but Congress under a sweeping power to use the judicial power of the United States at its discretion, might have been left more at liberty, (under the rules of construction laid down by the Court) to give the appeal either from the State or inferior tribunals, or from both, than as the clause is now expressed. The amendment, however, was negatived, two States voting in the affirmative and six in the negative.* Thus, it appears, that no amendment was agreeable to the Convention, whose phraseology admitted of an implication that an appeal might be from a State court. The Convention chose to define the extent of the appellate jurisdiction, and to leave no other discretion to Congress than to make “exceptions," as to the law and fact, where the amount in dispute, or other circumstances might not justify an appeal, as well as “regulations," as to the mode of conducting the appeal where necessary. But Mr. Justice Story thinks, that the judicial power being delegated in the most

* The party for a Federal Government could always rely on six votes. There were seldom more than eleven States represented.

general terms," may be exercised by Congress under every variety of form of appellate or original jurisdiction--that it subsists in the ulinost latitude of which, in its own nature, it is susceptible--and that Congress may create a succession of inferior tribunals, in each of which it may vest appellate as well as original jurisdiction." The Convention, however, thought differently, for when this unlimited exercise of judicial power was proposed in the amendment just referred to, it was negatived. It was the very power which Mr. Justice Story, in his sentiments just quoied, claims for Congress—a discretionary power. Where are the words in the clause, as it now reads, investing Congress with a discretion to exercise the whole judicial power of the United States, in any manner that it pleases. If Congress has not yet so degraded the State judiciary, as to decide that it can direct an appeal from the highest Court of Appeals of such a State as New-York or Virginia, to a District court of the Union, it is not then, because under its rules of construction of the Supreme Court, such an idea would be inadmissible, but rather because the time has not yet arrived for the exercise of such pre-eminent judicial control. The Court seems to have taken this doctrine from the “Federalist.” Mr. Hamilton there maintains, (No. 82) that it is left to the discretion of Congress, “whether the authority of the inferior Federal courts shall be original or appellate, or both," and this being the case, “he perceives no impediment to the establishment of an appeal from the State courts to the subordinate national tribunals; and he concludes by saying, that appeals, in most cases in which they may be deemed proper, “instead of being carried to the Supreme Court, may be made to lie to the district courts of the Union.” What would we, in South-Carolina, say of State sovereignty, were the judgments of our Court of Appeals subject to be reversed by a Federal District Judge; and yet Congress has this power according to the “Federalist,” and the above opinion of Mr. Justice Story.

Mr. Hamilton, in vindicating, generally, the necessity of inferior Federal tribunals, seems, by a transitory notice, to consider that an objection had been raised against these tribunals, because all the purposes of their institution might "be accomplished by the instrumentality of the State courts." This would indicate that there had been a desire to give the appeal from the State courts. T'he true state of the case is this. The Constitution was sometimes attacked in the journals of the day, upon grounds different from those in which it bad been assailed in the Convention. The design of the Federalist" was to answer these popular objections. There was a prodigious

clamour raised against the inferior Federal tribunals. It was said that they would tend to take away all business from the State courts, and that they would carry suitors, against their will, into the Federal tribunals, where Federal collectors of taxes, excisemen, &c. would not be punished for their oppressions and brutality to the people, and where, if the verdicts of juries on the facts, should be in favour of a poor or oppressed man, an appeal might be claimed, carrying him five hundred miles from home, before a Court which was to judge of fact as well as law. But this opposition was confined almost wholly to Virginia; and in that State, it owed much of its violence to the general apprehension, that the trial by jury in civil cases, might be destroyed by Congress, and that no man could be safe, under this appeal as to law and fact to the Supreme Court. There were many causes for this alarm, which did not exist in the same degree elsewhere, if they existed at all. The debts in that State to British creditors were considerable. These, the debtors feared, would be sued in the Federal courts, where, they fancied, they might not have justice done to thein. There was a part of the country, called the Northern Neck, to which the title was disputed, and in which were interested, it is said, thirty thousand people. Lord Fairfax's title to this confiscated property might be prosecuted, established in the Federal court, and the people might be called upon for the quit rents. Suits were also feared in the Federal court, for the tract of country between the Blue Ridge and the Alleghany mountains, from certain companies who laid claim to those lands. The great Indiana purchase, which was made to the westward, was expected to be the cause of dispute. Three or four counties were settled on these lands. Patrick Henry himself, who was an inhabitant of the Northern Neck, was under such unusual excitement, in contemplating the scene of distress, confusion and ruin, which he fancied would ensue, if these claims should be brought before the Federal tribunals, that he was ready to give an appeal from the State courts as to law, (but not fact) rather than encounter such an hydra as the inferior Federal tribunals, and of the same mind were others in the Virginia Convention. Whilst be eloquently depicted the importance of an independent State judiciary as essential to State sovereignty, and argued that by the new system, the State judiciaries would become insignificant and dependant, for the reasons stated by him, it seemed not to have occurred to his intelligent and gigantic mind, that though the danger to the possessors of the Northern Neck was in the appeal as to fact, yet that the greater danger to the State sovereignties would be in the

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