states, if their term of office were longer, so that there would be less reason to distrust the consistency as well as perma. nence of their public measures; because, they then would become the guardians and protectors of the rights of the states against the encroachments, not of the general government, for of this there is hardly a possibility, but of the legislative department of it. If then, congress should enact a law, which the authorities of a state considered to be unconstitutional and injurious to the interests of the state, those state rulers would immediately take care to have the question of its constitutionality determined by the supreme court of the United States; and, if aggrieved by their decision, would adopt the regular course before suggested, so far as was just and expedient, without the necessity of convening primary assemblies of the people, a measure seldom desirable, or in any manner disturbing the tranquillity of the public mind. The supposition indeed is possible, though perhaps it would be better to consider it impossible, that there might be a final difference of opinion as to interests, which are believed to be of sufficient consequence, to demand for their preservation, the dissolution or dismemberment of the union. But, as it seems really impossible, that a necessity for adopting a measure so fatal to the strength and prosperity of this now great and flourishing nation, should ever arise from any other cause than the selfish or angry passions of the leaders, and partizans of the various parties or factions, which already distract the country; if the people of the United States, or those of either of the several states, ever have recourse to this miserable alternative, they will have nothing to which to ascribe the loss of the happiness, which, if they choose, they may enjoy under their complicated but admirable system of government, and the total decline of their rank among the nations of the earth, but their infatuation, their ignorance of their true interests, their misplaced confidence in superficial orators and selfish statesmen, and their weak concessions to rude importunity and senseless clamor.

2. It may be asked; are there really no limits to the jurisdiction of the supreme court of the United States, with regard to what are generally considered as constitutional questions?

The answer must be, that, in one respect, there are limits, but in another, there are none. It would seem, that congress must always be bound by a decision of the supreme court of the United States; but the states are not always bound. If the supreme court should decide, that a law is unconstitutional, congress must always be bound by the decision, because the authority of that court to decide upon the constitutionality of all laws enacted by congress, proceeds from the same source from which congress derives all its authority to enact laws. They therefore cannot deny the authority of the court, in this respect, without removing the foundation of their own powers. But with regard to the states, the case is different. For, the states have delegated to the government of the United States certain limited powers only, and, for the purpose of providing a check upon the rulers to prevent their overstepping the limits prescribed to them, have erected the supreme court to decide, in the last resort, whether they exceed their powers or not. If therefore the supreme court should decide that any measure of the government of the United States is unconstitutional, it would be considered from that moment illegal and void, and the general government would be bound by the decision. But, if the supreme court should decide that the measure is constitutional, a further question may arise, which is, whether the point decided, comes within the jurisdiction of that court as limited in the constitution of the United States; for, if it does not, the decision of the court will not bind the states. In order that the supreme court should have jurisdiction in relation to a particular subject, it must either be conferred in the constitution in express terms, or it must be necessa ry to the exercise of some authority expressly delegated in the constitution. In either case, there would seem to be but little question as to the jurisdiction of the court. But, the supreme court must have jurisdiction conferred on them in the constitution, over the subject matter involved in their decision. If they have not, their decision, though obligatory on the national government, when given against them, because this court always has authority to decide that a measure, purporting to be adopted under the authority of the constitution, is in fact unconstitutional; yet, if given in favor of the general

government and against the states, will not be binding. It is true, within the jurisdiction conferred by the constitution, every decision of the supreme court, must be submitted to by the states, since, by adopting the federal constitution they have agreed to do so; and, on the improbable supposition, that the court should make an incorrect decision, in fact, still it must be considered as correct, and obeyed as such, there being no higher court of appeal provided by the constitution. But, how can the states be bound by the decisions of the supreme court, on the supposition that they should usurp jurisdiction over matters not submitted to them by the states, in the federal constitution? If it is asked ;-how can it be ascertained, whether such jurisdiction is granted in the constitution, or not, otherwise than by the construction given to it by the supreme court, and which they alone are authorized to decide in the last resort; the answer must be, that the question, whether a certain jurisdiction is conferred in the constitution, or not, must be determined by a reference to the constitution itself. This subject is not left to the mere discretion of the court. For, as this court can neither extend its jurisdiction beyond the express limits prescribed to it; so neither can it assume jurisdiction in cases where the constitution is silent. It can never depend upon mere construction. For, where the constitution is entirely silent in relation to a particular subject, and where the powers delegated to the supreme court can be exercised without giving authority or jurisdiction in relation to that subject, it must be self-evident, that the supreme court can have no constitutional jurisdiction. It is no small argument of the excellence and wisdom of the provisions in the constitution, that, in order to find cases not provided for in it, recourse must be had so frequently to absurd or at least very improbable suppositions. Let it be supposed then for a moment, that the supreme court should assume jurisdiction of a suit, commenced by a citizen of a state against another state, and that the court should decree against the state sued, can it be imagined, that the state would be bound to submit to the decree? Certainly not; because one of the amendments to the constitution of the United States, expressly provides, that the judicial power of the federal government shall not extend

to such a case. Suppose again, that this court should entertain jurisdiction on a prosecution for a crime, committed within a state and against the laws of the state alone, would not any judgment which this court might pronounce in this case, be wholly void? No one can be so unreasonable as to believe, that the extent of delegated powers, can depend upon the construction of the delegate alone. No one can be so absurd as to imagine, that the limited jurisdiction of any court, however high, can be extended by the mere construction of the court itself. This subject will be farther examined in a different connexion, in the next chapter.

CHAPTER V.

Of the Independence of the States and the Sovereignty of the Union considered together, and how far the latter is consistent with the former.

To form just and adequate ideas on the subject of the present chapter, it may not be amiss to consider shortly, what would be the condition of the several states, if the Union among them were peaceably dissolved, and, with that single exception, every thing else were left in the same situation that it now is. The people of each state, it is apparent, would then find themselves in possession of a distinct territory, with a separate regularly organized government, fully authorized by the people for the regulation of its concerns; and though perhaps not invested with any power to wage a foreign or offensive war; yet having full authority to resist invasions from without, and to suppress tumults and insurrections within ; and generally to provide for the public peace and the domestic tranquillity of its citizens, and the support and maintenance of the government. Under such circumstances as these, and acknowledging no earthly superior in any other government or tribunal whatever, it is impossible not to perceive, that each state would be completely sovereign and independent. It was in this condition, that those states of the American Union claimed to be, which agreed to the articles of confederation; and, with the exception of that compact, this was the situation those states were in, which first agreed to adopt the federal conrtitution.

It is thus apparent, that the constitution of the United States is the only restraint, which the several states have imposed upon their own independence. It is also the only bond that unites them under one government. A proper regard for their own interests, it is true, would tend to keep them at peace with each other, and might also induce them to form alliances for mutual protection against external aggression. But such conse

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