independent States, and, as such, authorized to constitute Federal and State Governments, that the federal courts Governments, each for itself, in such form as it thought best. should have power to control the decisions of State courts "They declared, in the second article of their first by appeal, than that the Federal Legislature should have confederated Government, that each State retains its power to control the legislation of the States, or the Fesovereignty, freedom, and independence, and every power, deral Executive a State Executive, by a negative. It jurisdiction, and right, which is not, by this confederacy, cannot be, that when a direct negative on the laws of a expressly delegated to the United States in Congress State was proposed in convention, as part of the federal assembled.' They afterwards entered into a compact, constitution, and rejected, that it was intended to confer which is called the Constitution of the United States of on the federal courts, by implication, a power subjecting America, by which they agreed to unite in a single Go- their whole legislation, and their judgments and decrees vernment, as to their relations with each other, and with on it, to this negative of the federal courts. It cannot foreign nations, and as to certain other articles particularly be, that this prostration of the independency of the State specified. They retained, at the same time, cach to itself, judicatories, this overthrow of the State Governments the other rights of independent government, compre-as co-ordinate powers, could be left to any implication of hending, mainly, their domestic interests. authority.

"For the administration of their federal branch, they agreed to appoint, in conjunction, a distinct set of functionaries, legislative, executive, and judiciary, in the manner settled in that compact, while to each, severally, and of course, remained its original right of appointing, each for itself, a separate set of functionaries, legislative, executive, and judiciary; also, for administering the domestic branch of their respective Governments.

The committee are therefore of opinion, that the power to enact the 25th section above recited, is not expressed in the constitution of the United States, nor properly an incident to any express power, and necessary to its execution. That, if continued and acquiesced in as construed by the Supreme Court, it raises the decision of the judiciary above the authority of the sovereign parties to the constitution, may be a warrant for the assumption of pow"These two sets of officers, each independent of the ers not delegated in the other departments, nor carried by other, constitute thus a whole of Government, for each the forms of the constitution before the judicial departState separately--the powers ascribed to the one, as spe- ment, and whose decisions would be equally authoritative cifically made federal, exercised over the whole--the and final with the decisions of that department. residuary powers, retained for the other, exerciscable However, therefore, it may be admitted or denied, that exclusively over its particular State--foreign, herein, each the judicial department of the Federal Government is, in to the others, as they were before the original compact." all questions submitted to it by the forms of the constituThat this is the true exposition of the powers and aution, to decide in the last resort in relation to the authorithorities of the Federal and State Governments, is mani-ties of the other departments of that Government, it can fested from the guarded limitation and definition of the never be authorized so to decide in relation to the right of grants of power in the compact itself, and by the con- the parties to the constitutional compact, from which the temporary discussions and comments which the constitu-judicial, as well as the other departments, hold their deletion underwent, which justified and recommended it, on gated trusts; on any other hypothesis, the delegation of the ground that the powers not given to Government were judicial power would annul the power delegating it, and withheld from it. But to leave no doubt on the subject, the concurrence of this department in usurped powers the amendments to the constitution expressly declare, that might subvert forever, and beyond the possible reach of the powers not delegated to the United States by the con-any rightful remedy, the very constitution which all were stitution, nor prohibited by it to the States, are reserved instituted to preserve. to the States respectively, or to the people.

"The authority of constitutions over Governments, and The committee are of opinion that the delegated powers the sovereignty of the people over constitutions, are truths resulting from the compact of Governments to which the at all times necessary to be kept in mind,”* and it is matStates are parties, are limited by the plain sense and inten-ter of regret to the committee, that it should ever have tion of the instrument constituting that compact, and are been asserted, that the constitution, on whose face is seen no farther valid than they are authorized by the grants so much labor to enumerate and define the several objects enumerated in that compact, and that it is incumbent in of federal power, could intend to introduce in the lump, this, as in every other exercise of power by the federal in an indirect manner, and by a forced construction, the Government, to prove from the constitution that it grants vast and multiform jurisdiction involved in the section of the particular power exercised; that if the powers granted the law under consideration-a jurisdiction overshadowing be valid, it is solely because they are granted; and all the entire field of their legislation and adjudication--a other powers not granted, are not valid.

Testing the 25th section of the act aforesaid, by the foregoing principles and expositions, the committee cannot perceive any grant of power in the constitution to warrant the enactment.

That the constitution does not confer power on the federal judiciary over the judicial departments of the States, by any express grant, is certain from the fact that the State judiciaries are not once named in that instrument. On the contrary, it declares that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may, from time to time, ordain and establish; thus giving power to organize a judicial system capable of exercising every function to which the judicial power of the United States extended, "and intending to create a new judiciary, to exercise the judicial powers of a new Government," unconnected with, and independent of, the State judiciaries.*

It is no more necessary to the harmonious action of the

*Mr Madison.

jurisdiction that saps the foundation of the constitution, as a system of limited and specified powers--obliterates the sovereignty of so many republics, renowned for their defiance of tyranny, and whose jealous limitations of power had preserved their liberty, and secured for them prosperity the wonder and admiration of the world.

Nor are the committee unmindful that, in practice, this disputed power has given rise to painful collisions in the State and Federal authorities, calculated to disturb the harmony of our system, and to weaken that confidence and affection which are due to the respective Governments in the constitutional exercise of all their functions.

The committee will only add one more extract from Mr. Jefferson, which is to be found in a second series of resolutions adopted by the Legislature of Kentucky, the 14th November, 1799:

"That if those who administer the General Governnent be permitted to transgress the limits fixed by the compact, by a total disregard to the special delegations of

*Mr. Madison.

power therein contained, an annihilation of the State Go- Supreme Court. Not one of all these requisites charac vernments, and the erection upon their ruins of a general terise State courts or judges. The State courts are not consolidated Government will be the inevitable conse-established by Congress; the State judges do not receive quence: that the principle and construction contended for their appointments from the President, by and with the by sundry of the State Legislatures, that the General Go- advice and consent of the Senate; they hold their offices vernment is the exclusive judge of the extent of the pow-not necessarily during good behavior, but by such tenure ers delegated to it, stop nothing short of despotism, since as the States shall choose; their compensation may be dithe discretion of those who administer the Government and minished at the pleasure of the States; and they are not not the constitution, would be the measure of their pow-responsible to, or liable to be impeached before, the Seers: that the several States who formed that instrument,nate of the United States. being sovereign and independent, have the unquestionable The committee are aware, that, since the able and unright to judge of its infraction: and that a nullification by answerable arguments on the twenty-fifth section in the those sovereignties, of all unauthorized acts done under Supreme Court of Virginia, the advocates of federal power color of that instrument, is the rightful remedy." have assumed the position, that the right of appeal is claim

The committee will now proceed to examine the provi-ed for the federal court, on the ground, that the case sions of the twenty-fifth section, and compare them with arises under the laws, treaties, and constitution of the the powers of the federal court, as conferred by the con- United States, and not on the ground that the State tristitution of the United States; and then submit for the bunal is an inferior one, from which a writ of error would consideration of the House two judicial decisions of the lie. The natural result of this will be, that, if the position highest respectability, declaring the said twenty-fifth sec- be true, it will prove too much. If the nature of the case tion unconstitutional. be the only ground of jurisdiction, will it not authorize The whole judicial power of the United States is de- the Supreme Court to issue a citation or writ of error to a clared by the constitution to be vested in one Supreme court of England or France, on the pretext that some one Court, and in such inferior courts as Congress shall, from of the questions arose under a treaty of the United States time to time, ordain and establish. Can Congress, by le- A judicial tribunal of one of those places is not more inds gislation, invest State courts with any portion of that pendent of the federal court than is a State court, if the power? Did the convention contemplate, in using the character of the case be the only criterion or authority for term appellate jurisdiction, the right and power of taking federal jurisdiction. Will it be said that the right of juris an appeal from a State court to the Supreme Court? The diction is limited by the power to enforce the mandates of answer to these questions must be found in the constitu- of the court? This being admitted, will not vary the tion. The Supreme Court is given original jurisdiction result of the present question. The federal courts have only in two classes of cases, to wit: in all cases affecting the same right to issue a mandamus, prohibition, or pro ambassadors, other public ministers, and consuls, and cess of contempt, to a foreign judge. If the nature of the those in which a State shall be a party. The only cases in case can give jurisdiction, as it has, to a State judge, it has which a State can be party, are, 1st. where the controver- also precisely the same power to execute it. If the right sy is between two or more States; and 2d, where the contro- existed in the first case, to issue and to execute process, versy is between a State, or the citizens thereof, and foreign the Supreme Court would virtually be invested with the States. In all other cases, before mentioned, says the power of declaring war; if in the latter case, that court constitution, the Supreme Court shall have appellate ju- will have the power to blot out from the map any State of risdiction. What courts have the original jurisdiction in the Union. If the right to issue a mandatory process o all those cases before mentioned, in the second section of the legislative, executive, and judicial authorities of a the third article, of which the Supreme Court has only the State, be admitted to belong to the federal court under appellate jurisdiction? Let the constitution answer: in such the constitution, the correlative obligation on these authoinferior courts as Congress shall, from time to time, ordain rities to obey, and the rightful power to enforce it, are e and establish." Is a State court an inferior court? The vious and necessary sequents. The federal court, under constitution does not say so. If the framers of the constitu- these admitted principles, will have the power to prohibit tion had so considered them, and had intended the right State legislation by writs of injunction; to sequestrate and power of taking an appeal from their judgments to State treasuries, and to imprison State functionaries, whe the Supreme Court, it was an easy matter, and they, doubt-ther governors, judges, or State Legislatures, in a body. less, would have said so: their omitting to do so, is proof Indeed, the power will not stop here; the same reasoning irresistible that the power was not intended to be given. will sustain a power in the federal court to attach and in It is unreasonable to believe that they who were so very prison the President and both Houses of Congress. The precise and specific in the enumeration of cases and pow-power by citation or writ of error, to take a case after ers of infinitely less moment, would have left to implica-judgment, from a State court, and to remove it, for firal tion and inference, a power that breaks down all the bar-determination, to the supreme federal court, is a much

riers between the State and Federal Governments.

greater outrage on the fundamental principles of theoreti The constitution not only invests the whole judicial cal and practical liberty, as established here, than the odious power of the United States in two specified tribunals, but writ of quo warranto, as it was used in England by a tr also prescribes and declares the duties, and rights, and rannical king, to destroy the rights of corporations. The tenure of office of the judges who shall constitute them; end and aim, in both cases, were similar: in England, not one of which is applicable to the courts or judges of was to make corporations subservient to the kingly plea State courts. The courts, in the first place, must be such sure; here, to make States subservient to federal extravaas are established by Congress; the judges must receive gance and aggrandizement.

their appointments from the President, with the consent The last arguments used by the advocates of federal of the Senate; they are told to hold their offices during power is, that the action of the Federal Government will be good behavior; their compensation cannot be diminished so crippled by the repeal of the twenty-fifth section of the during their continuance in office; and are made liable to act of 1789, that its wholesome operations will be arrested. be impeached and removed from office by the Senate of Although the committee will not acknowledge that such the United States. Such are the courts and judges that would be the necessary consequence, yet it may be admit the constitution invested with the jurisdiction of all other ted for the sake of argument, without changing the result cases before mentioned," in the second section of the third The committee believe that it is the imperative duty of article of that instrument, with the exception of two classes Congress to repeal, without delay, any of its acts in contraof cases over which original jurisdiction is given to the vention of the constitution, be the consequences what they

may. If Congress had no power to pass such laws, they and that the writ of error in this case was improvidently are null and void, and ought not to remain on the statute allowed under the authority of that act; that the proceedbook; if such be really necessary, the power that created ings thereon in the Supreme Court, were coram non judithe constitution can, and will amend it. Necessity and cem in relation to this court, and that obedience to its manexpedience are the pleas of the tyrant; amendment, the date be declined by this court." dictate of the constitution. By pursuing the former course, we trample upon the constitution; by following the latter, we go back to the people, the original source of all power.

The committee will present one more judicial opinion of a State Court against the powers contended for by the Supreme Court of the United States.

The Supreme Court of the Commonwealth of PennsylIt has also been urged as a branch of this argument, that vania, in the case of the Commonwealth vs. Cobbett, sothe twenty-fifth section is indispensable to that supremacy lemnly and unanimously refused to permit the defendant, of the federal court which is required to preserve the who was an alien, to remove a cause in which he was sued peace of the country with foreign Powers, and to render by the State in its Supreme Court, into a Circuit Court of uniform all judgments in treaty cases. The answer to the United States, notwithstanding the comprehensiveness these objections to the repeal of the twenty-fifth section, of the words of the twelfth section of the judicial act. the committee believe to be full and perfect in the case of The court, after deciding, in the most explicit terms, that Hunter vs. Martin, and prefer presenting it in the language all power not granted to the Government of the United of the able judge who delivered it: States, remained with the several States; that the Federal

"I have said that this controlling power was not essen- Government was a league or treaty, made by the indivitial to preserve the peace of the nation.* Without going dual States as one party, and all the States as another; to other considerations or authorities on the subject, it is that when two nations differ as to the construction of a sufficient to remark that the American people have decid- league or treaty existing between them, neither has the ed that it is no cause of offence to foreign nations, to have exclusive right to decide it; and that if one of the States their causes decided, and exclusively and finally decided should differ with the United States as to the extent of the by the State tribunals. In that amendment to the consti- grant made to them, there is no common umpire between tution, by which the jurisdiction of the federal courts is them but the people, by an amendment of the constituprohibited to suits brought against the States by foreign tion; went on to declare its own opinion on the subject, citizens or subjects, this construction is most undoubted, and overruled the motion on the ground that the sovereign and has never been complained of. State of Pennsylvania could not, on account of its dignity, "Since the adoption of that amendment, the election of be carried before that court. This was the solemn and jurisdiction has been entirely taken away from foreigners unanimous decision of the Supreme Court of one of the in all suits against the States; and those suits can now be most respectable and republican States of the Union. brought in the States' courts in exclusion of every other; The decisions of these tribunals, the committee consiand that, too, in cases, in which, from the circumstances der of high authority and great weight; the judges who of the States themselves being parties, it might, perhaps, composed them were of exalted character, patriotism, be plausibly urged that the judges of the State courts learning, and ability. They had taken the same oath imwere not free from bias. I consider that this declaration posed upon the federal judges to support the constitution by the American people, and which has never excited a of the United States, together with the superadded obligamurmur in foreign nations, has put down the notion now tion to maintain the constitutions of the States, whose juin question. It has settled the question forever, that it is dicial powers were confided to them.

no cause of war to foreign nations, that the State judicia- The committee do not pretend to originality in the views ries should finally decide the causes, elected to be brought and principles of this report; on the contrary, they believe therein by their subjects. It has consequently over- they could not better discharge their duty, or render a thrown the only foundation on which the whole super-more acceptable service to the House, than by presenting structure of the twenty-fifth section of the judicial act has the authorities on which it is founded. Believing the secbeen supposed to rest. tion of the act referred to the consideration of the committee to be unconstitutional, they herewith report a bill to repeal the same.

"That pretence is the only one on which the power in question could be attempted to be justified. That of rendering uniform all judgments in the case of treaties is still less tenable, and is even not attained by the actual provi- COUNTER REPORT UPON THE JUDICIARY. sions of the judicial act. Under that act, the appeal equally lies to the Supreme Court of the United States, HOUSE OF REPRESENTATIVES, JAN. 24. where such uniformity already exists, and is denied where it is wanting. The Committee on the Judiciary, to which was referred a resolution of the House of Representatives of the 21st "If, for example, the Supreme Court of the United ultimo, instructing them "to inquire into the expediency States has decided against a treaty, and the Supreme of repealing or modifying the twenty-fifth section of an Court of a State decides the same way, there this unifor-act entitled "an act to establish the judicial courts of the mity already exists, and yet the appeal is allowed. If, on United States," passed the 24th September, 1789, having the other hand, the former court decides against a treaty, made a report, accompanied by a bill to repeal the same, and the latter in favor of it, this uniformity is wanting, the minority of that committee, differing in opinion from yet the appeal is denied." their associates upon this important question, deem it to The following is the unanimous opinion of the Supreme be their duty to submit to the House the following report: Court of Virginia, in the above stated case. The constitution of the United States has conferred "The court is unanimously of opinion, that the appel-upon Congress certain enumerated powers, and expressly late power of the Supreme Court of the United States authorizes that body "to make all laws which shall be nedoes not extend to this court, under a sound construction cessary and proper for carrying these powers into execuof the constitution of the United States; that so much of tion." In the construction of this instrument, it has bethe 25th section of the act of Congress, to establish the come an axiom, the truth of which cannot be controverted, judicial power of the United States, as extends the appel- that "the General Government, though limited as to its late judicial power of the Supreme Court to this court, is objects, is supreme with respect to those objects." not in pursuance of the constitution of the United States; The constitution has also conferred upon the President,

21st CONG. 2d SESS.]

Counter Report upon the Judiciary.

"by and with the advice and consent of the Senate, pro- the 25th section of the judicial act of the 24th September, vided two-thirds of the Senators present concur," the 1789. It is in the following words: power to make treaties. "SEC. 25. And be it further enacted, That a final judg By the second section of the sixth article of this instrument or decree in any suit, in the highest court of law or ment, it is declared, in emphatic language, that "this con- equity of a State, in which a decision in the suit could be stitution, and the laws of the United States which shall be had, where is drawn in question the validity of a treaty or made in pursuance thereof, and all treaties made, or statute of, or an authority exercised under, the United which shall be made, under the authority of the United States, and the decision is against their validity; or where States, shall be the supreme law of the land; and the is drawn in question the validity of a statute of, or an judges in every State shall be bound thereby, any thing authority exercised under, any State, on the ground of in the constitution or laws of any State to the contrary notwithstanding."

their being repugnant to the constitution, treaties, or us of the United States, and the decision is in favor of such The constitution having conferred upon Congress the their validity; or where is drawn in question the construe power of legislation over certain objects, and upon the tion of any clause of the constitution, or of a treaty er President and Senate the power of making treaties with statute of, or commission held under the United States, foreign nations, the next question which naturally present- and the decision is against the title, right, privilege, a ed itself to those who framed it was, in what manner it exemption, specially set up or claimed by either party would be most proper that the constitution itself, and the under such clause of the said constitution, treaty, statute, laws and treaties made under its authority, should be car- or commission, may be re-examined and reversed, or ried into execution. They have decided this question in affirmed in the Supreme Court of the United States, up the following strong and comprehensive language: "The a writ of error, the citation being signed by the chief judicial power shall extend to all cases, in law and equity, tice, or judge, or chancellor, of the court rendering arising under this constitution, the laws of the United passing the judgment or decree complained of, or by a States, and treaties made, or which shall be made, under justice of the Supreme Court of the United States, in the their authority." [Article 3, Sec. 2.] This provision is the same manner, and under the same regulations; and the only one which could have been made in consistency with writ shall have the same effect, as if the judgment or de the character of the Government established by the con- cree complained of had been rendered or passed in a c stitution. It would have been a strange anomaly had that cuit court; and the proceeding upon the reversal shal instrument established a judiciary whose powers did not also be the same, except that the Supreme Court, instead embrace all the laws and all the treaties made under its of remanding the cause for a final decision, as before pro authority. The symmetry of the system would thus have vided, may, at their discretion, if the cause shall have bee been destroyed; and, in many cases, Congress would have once remanded before, proceed to a final decision of the had to depend exclusively for the execution of their own same, and award execution. But no other error shall be laws upon the judiciary of the States. This principle assigned or regarded as a ground of reversal, in any such would have been at war with the spirit which pervades case as aforesaid, than such as appears on the face of the the whole constitution. It was clearly the intention of its record, and immediately respects the beforementione framers to create a Government which should have the questions of validity, or construction of the said constit power of construing and executing its own laws, without tion, treaties, statutes, commissions, or authorities, in ds any obstruction from State authority. Accordingly, we pute."

find that the judicial power of the United States extends, This section embraces three classes of cases. The first, in express terms, "to all cases," in law and in equity, those in which a State court should decide a law or treaty arising under the constitution, the laws, and the treaties of of the United States to be void, either because it violat the United States. This general language comprehends the constitution of the United States, or for precisely what it ought to comprehend. reason. Ought there not in such cases to be an appea.

any

other

If the judicial power of the United States does thus ex- to the Supreme Court of the United States? Witho tend to all cases" arising under the constitution, the laws such an appeal, the General Government might be obliged and treaties of the Union, how could this power be to behold its own laws, and its solemn treaties annulled ty brought into action over such cases without a law of Con- the Judiciary of every State in the Union, without the gress investing the Supreme Court with the original and power of redress. appellate jurisdiction embraced by the constitution?

The second class of cases is of a different character. It embraces those causes in which the validity of State Lus is contested, upon the principle that they violate the co stitution, the laws, or the treaties of the United States, and have, therefore, been enacted in opposition to the authority of the "supreme law of the land." Cases of tha description have been of frequent occurrence. It has When Congress, in the year 1789, legislated upon this often been drawn into question before the State courts, subject, they knew that the State courts would often be whether State laws did or did not violate the constitution called upon, in the trial of causes, to give a construction of the United States. Is it not then essential to the prese? to the constitution, the treaties and laws of the United vation of the General Government, that the Suprene States. What, then, was to be done? If the decisions of Court of the United States should possess the power of || the State courts should be final, the constitution and laws reviewing the judgments of State courts in all cases of the Union might be construed to mean one thing in one wherein they have established the validity of a State law, State, and another thing in another State. in opposition to the constitution and laws of the United

It was the imperious duty of Congress to make such a law, and it is equally its duty to continue it: indeed, without it, the judicial power of the United States is limited and restricted to such cases only as arise in the federal courts, and is never brought to bear upon numerous cases, evidently within its range.

All uniformity in their construction would thus be de- States? stroyed. Besides, we might, if this were the case, get The third class differs essentially from each of the two into serious conflicts with foreign nations, as a treaty might first. In the cases embraced by it, neither the validity of receive one construction in Pennsylvania, another in Vir- acts of Congress, nor of treaties, nor of State laws, is ginia, and a third in New York. Some common and uni- called in question. This clause of the 25th section merely form standard of construction was absolutely necessary. confers upon the Supreme Court the appellate jurisdie To remedy these and other inconveniences, the first tion of construing the constitution, laws, and treaties of Congress of the United States, composed, in a considera- the United States, when their protection has been invoked ble proportion, of the framers of the constitution, passed by parties to suits before the State courts, and has been

Counter Report upon the Judiciary.

denied by their decision. Without the exercise of this power, in cases originating in the State courts, the constitution, laws, and treaties of the United States, would be left to be finally construed and executed by a judicial power, over which Congress has no control.

[21st CoNG. 2d SESS.

long as the 25th section of the judicial act shall remain upon the statute book) whenever they consider that their rights, under the constitution and laws of the United States, have been violated by a State court. Besides, should this section be repealed, it would produce a denial This section does not interfere, either directly or indi- of equal justice to parties drawing in question the constirectly, with the independence of the State courts, in fi-tution, laws, or treaties of the United States. In civil nally deciding all cases arising exclusively under their actions, the plaintiff might then bring his action in a fedeown constitution and laws. It leaves them in the enjoy-ral or State court, as he pleased, and as he thought he ment of every power which they possessed before the should be most likely to succeed; whilst the defendant adoption of the federal constitution. It merely declares, would have no option, but must abide the consequences that, as that constitution established a new form of Go-w thout the power of removing the cause from a State into vernment, and consequently gave to the State courts the a federal court, except in the single case of his being sued power of construing, in certain cases, the constitution, out of the district in which he resides; and this, although the laws, and the treaties of the United States, the Su- he might have a conclusive defence under the constitution preme Court of the United States should, to this limited and laws of the United States. extent, but not beyond it, possess the power of reviewing Another reason for preserving this section is, that, withtheir judgments. The section itself declares that no other out it, there would be no uniformity in the construction error shall be assigned or regarded as a ground of reversal, and administration of the constitution, laws, and treaties in any such case as aforesaid, than such as appears on the of the United States. If the courts of twenty-four distinct, face of the record, and immediately respects the before sovereign States, each possess the power, in the last rementioned questions of validity or construction of the said sort, of deciding upon the constitution and laws of the constitution, treaties, statutes, commissions, or authorities United States, their construction may be different in every in dispute. State of the Union. That act of Congress which conforms to the constitution of the United States, and is valid, in the opinion of the Supreme Court of Georgia, may be a direct violation of the provisions of that instrument, and be void, in the judgment of the Supreme Court of South And, in the first place, it ought to be the chief object Carolina. A State law in Virginia might in this manner of all Governments to protect individual rights. In al- be declared constitutional, whilst the same law, if passed most every case, involving a question before a State court by the Legislature of Pennsylvania, would be void. Nay, under this section of the judiciary act, the constitution, what would be still more absurd, a law or treaty of the laws, or treaties, of the United States are interposed for United States with a foreign nation, admitted to be conthe protection of individuals. Does a citizen invoke the stitutionally made, might secure rights to the citizens of protection of an act of Congress upon a trial before a State one State, which would be denied to those of another. court, which decides that act to be unconstitutional and Although the same constitution and laws govern the Union, void, and renders judgment against him? this section se- yet the rights acquired under them would vary with cures his right of appeal from such a decision to the Su-every degree of latitude. Surely the framers of the conpreme Court of the United States.

The minority of the committee will now proceed to advance, in a more distinct form, a few of the reasons why, in their opinion, the 25th section of this act ought not to be repealed.

When a citizen, in a suit before a State court, contends that a State law, by which he is assailed, is a violation of the constitution of the United States, and therefore void, (if his plea should be overruled,) he may bring this question before the Supreme Court of the United States.

stitution would have left their work incomplete, had they established no common tribunal to decide its own construction, and that of the laws and treaties made under its authority. They are not liable to this charge, because they have given express power to the Judiciary of the Union overall cases, in law and equity, arising under In like manner, when an individual claims any right be- this constitution, the laws of the United States, and treafore a State court under the constitution or laws of the ties made, or which shall be made, under their authority." United States, and the decision is against his claim, he The first Congress of the United States have, to a conmay appeal to the Supreme Court of the United States. siderable extent, carried this power into execution by the If this section were repealed, all these important indi-passage of the judicial act, and it contains no provision vidual rights would be forfeited. more important than the 25th section.

The history of our country abundantly proves that in- This section ought not to be repealed, because, in the dividual States are liable to high excitements and strong opinion of the minority of the committee on the judiciary, prejudices. The judges of these States would be more its repeal would seriously endanger the existence of this or less than men if they did not participate in the feelings Union. The chief evil which existed under the old conof the community by which they are surrounded. Under federation, and which gave birth to the present constituthe influence of these excitements, individuals, whose tion, was, that the General Government could not act dirights happen to clash with the prevailing feeling of the rectly upon the people, but only by requisition upon soState, would have but a slender hope of obtaining justice vereign States. The consequence was, that the States before a State tribunal. There would be the power and either obeyed or disobeyed these requisitions, as they the influence of the State sovereignty on the one side, thought proper. The present constitution was intended and an individual who had made himself obnoxious to to enable the Government of the United States to act impopular odium on the other. In such cases, ought the mediately upon the people of the States, and to carry its liberty or the property of a citizen, so far as he claims own laws into full execution, by virtue of its own authorithe same under the constitution or laws of the United ty. If this section were repealed, the General GovernStates, to be decided before a State court, without an ap-ment would be deprived of the power, by means of its own peal to the Supreme Court of the United States, on whom judiciary, to give effect either to the constitution which the construction of this very constitution and these laws called it into existence, or to the laws and treaties made unhas been conferred, in all cases, by the constitution? der its authority. It would be compelled to submit, in The Supreme Court, considering the elevated charac-many important cases, to the decisions of State courts; and ter of its Judges, and that they reside in parts of the Union thus the very evil which the present constitution was inremote from each other, can never be liable to local ex- tended to prevent would be entailed upon the people. citements and local prejudices. To that tribunal our The judiciary of the States might refuse to carry into ef citizens can appeal with safety and with confidence, (as fect the laws of the United States; and without that appeal