1

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 1 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 ju> in question. It has settled the question forever, that it is dicial powers were confided to them.

"

5

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.

"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 provisions of the judicial act. Under that act, the appeal equally lies to the Supreme Court of the United States, where such uniformity already exists, and is denied where it is wanting.

tion of the act referred to the consideration of the com

mittee to be unconstitutional, they herewith report a bill to repeal the same.

COUNTER REPORT UPON THE JUDICIARY. HOUSE OF REPRESENTATIVES, JAN. 24. 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;

Hunter vs. Fairfax-4th Munford.

VOL. VII.--L

The constitution has also conferred upon the President,

3d Dalias, 473.

21st CONG. 2d SESS.]

66

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 judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding,'

is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the constitution, treaties, or laws 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 construc power of legislation over certain objects, and upon the tion of any clause of the constitution, or of a treaty or 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, or 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, upon the following strong and comprehensive language: "The a writ of error, the citation being signed by the chief jus judicial power shall extend to all cases, in law and equity, tice, or judge, or chancellor, of the court rendering or 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 cir stitution. It would have been a strange anomaly had that cuit court; and the proceeding upon the reversal shall 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 proauthority. The symmetry of the system would thus have vided, may, at their discretion, if the cause shall have been 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 beforementioned framers to create a Government which should have the questions of validity, or construction of the said constitu power of construing and executing its own laws, without tion, treaties, statutes, commissions, or authorities, in disany 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, arising under the constitution, the laws, and the treaties of the United States. This general language comprehends precisely what it ought to comprehend.

If the judicial power of the United States does thus extend to all cases" arising under the constitution, the laws and treaties of the Union, how could this power be brought into action over such cases without a law of Congress investing the Supreme Court with the original and appellate jurisdiction embraced by the constitution?

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.

any

those in which a State court should decide a law or treaty of the United States to be void, either because it violated the constitution of the United States, or for other reason. Ought there not in such cases to be an appeal to the Supreme Court of the United States? Without such an appeal, the General Government might be obliged to behold its own laws, and its solemn treaties annulled by the Judiciary of every State in the Union, without the power of redress.

The second class of cases is of a different character. It embraces those causes in which the validity of State laws is contested, upon the principle that they violate the constitution, 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 this 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 Supreme 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 Unite States?

All uniformity in their construction would thus be destroyed. 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 receive one construction in Pennsylvania, another in Vir- acts of Congress, nor of treaties, nor of State laws, ginia, and a third in New York. Some common and uni- called in question. This clause of the 25th section mercy form standard of construction was absolutely necessary. confers upon the Supreme Court the appellate jurisdic To remedy these and other inconveniences, the first tion of construing the constitution, laws, and treaties 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

denied by their decision. Without the exercise of this long as the 25th section of the judicial act shall remain power, in cases originating in the State courts, the con-upon the statute book) whenever they consider that their stitution, laws, and treaties of the United States, would be rights, under the constitution and laws of the United left to be finally construed and executed by a judicial States, have been violated by a State court. Besides, power, over which Congress has no control. 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 face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.

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.

of the United States. If the courts of twenty-four distinct, sovereign States, each possess the power, in the last resort, of deciding upon the constitution and laws of the United States, their construction may be different in every 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-fevery degree of latitude. Surely the framers of the conpreme Court of the United States.

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 ques tion 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 over "all 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 efcitizens can appeal with safety and with confidence, (as fect the laws of the United States; and without that appeal

to the Supreme Court which the 25th section authorizes, Virginia, (6 Wheaton, 264,) by which the affirmative of these laws would thus be entirely annulled, and could not these propositions is clearly established. It may be proper, be executed without a resort to force. however, that we should make a few observations upca This position may be illustrated by a few striking ex- this part of the question. Those who have argued in favor amples. Suppose the Legislature of one of the States, of these positions, assert that the general words of the believing the tariff laws to be unconstitutional, should de- constitution, extending the judicial power of the Union termine that they ought not to be executed within its lim-" to all cases, in law and equity," arising under the conits. They accordingly pass a law, imposing the severest stitution and laws of the United States, ought, by construcpenalties upon the collector and other custom-house offi- tion, to be restricted to such cases, in law and equity, as cers of the United States within their territory, if they may originate in the courts of the Union. They would should collect the duties on the importation of foreign mer- thus establish a limitation at war with the letter, and, in chandise. The collector proceeds to discharge the duties our opinion, equally at war with the spirit of the instru of his office under the laws of the United States, and he is ment. Had such been the intention of the framers of the condemned and punished before a State court for violating constitution, they well knew in what language to express this State law. Repeal this section, and the decision of that intention. Had it been their purpose to restrict the the State court would be final and conclusive; and any meaning of the general language which they had used in State could thus nullify any act of Congress which she the first clause of the section, they could have done so deemed to be unconstitutional. with much propriety in the second. This clause, after The Executive of one of the States, in a message to the providing that, in all cases affecting ambassadors, other Legislature, has declared it to be his opinion, that the land public ministers, and consuls, and those in which a State belonging to the United States within her territory is now shall be a party, the Supreme Court shall have original the property of the State, by virtue of her sovereign au- jurisdiction," proceeds to declare “that, in all the other thority. Should the Legislature be of the same opinion, cases before mentioned, the Supreme Court shall have apand pass a law for the punishment of the land officers of pellate jurisdiction, both as to law and fact, with such exthe United States who should sell any of the public lands ceptions, and under such regulations, as the Congress within her limits, this transfer of property might be virtu- shall make." On the supposition contended for, it is ally accomplished by the repeal of the 25th section of the wholly unaccountable that the framers of the constitution judicial act. Our land officers might then be severely did not limit the natural effect of the words used in the first punished, and thus prohibited by the courts of that State clause, by making the second to read "that, in all the from performing their duty under the laws of the Union, other cases before mentioned," arising in the inferior courts without the possibility of redress in any constitutional or legal form. In this manner, the title of the United States to a vast domain, which has cost the nation many millions, and which justly belongs to the people of the several States, would be defeated or greatly impaired.

of the United States, "the Supreme Court shall have appellate jurisdiction." But no such restriction exists; and, from the fair import of the words used in both clauses, the Supreme Court possess the power of finally deciding "all cases, in law and equity," arising under the constitution, the laws, and the treaties of the United States, no matter whether they may have originated in a federal or in a State court, and no matter whether States or individuals be the parties.

Another illustration might be introduced. Suppose the Legislature of Pennsylvania, being of opinion that the charter of the Bank of the United States is unconstitutional, were to declare it to be a nuisance, and inflict penalties upon all its officers for making discounts or receiving de- But it is not our intention to enter into a protracted conposites. Should the courts of that State carry such a law stitutional argument upon the present occasion, because into effect, without the 25th section there would be no this question has long since been put at rest, if any conappeal from their decision; and the Legislature and courts stitutional question can ever be considered as settled in of a single State might thus prostrate an institution estab- this country. The Federalist, which is now considered a lished under the constitution and laws of the United text-book in regard to the construction of the constitution, States. and deservedly so, as well from the great merit of the In all such cases, redress can now be peaceably obtain- work, as the high character of its authors, is clear and exed in the ordinary administration of justice. A writ of plicit on this subject. After reasoning upon it at some error issues from the Supreme Court, which finally decides length, the author of the 83d number of that production the question whether the act of Congress was constitution- arrives at the following conclusion: "To confine, thereal or not; and if they determine in the affirmative, the fore, the general expressions which gave appellate jurisjudgment of the State court is reversed. The laws are diction to the Supreme Court to appeals from the suberthus substituted instead of arms, and the States kept within dinate federal courts, instead of allowing their extension their proper orbits by the judicial authority. But if no to the State courts, would be to abridge the latitude of such appeal existed, then, upon the occurrence of cases the terms, in subversion of the intent, contrary to every of this character, the General Government would be com- sound rule of interpretation." pelled to determine whether the Union should be dissolv- The Federalist, it will be recollected, was written beed, or whether there should be a recurrence to force-an tween the formation of the constitution and its adoption by awful alternative, which we trust may never be presented. the States. Immediately after its adoption, Congress, by We will not attempt further to portray the evils which passing the 25th section of the judicial act, now sought to might result from the abandonment of the present judicial be repealed, fully confirmed this construction. This apsystem. They will strike every reflecting mind. pellate jurisdiction has ever since been exercised by the

It has of late years been contended, that this section of Supreme Court in a great variety of cases; and we are the judicial act was unconstitutional, and that Congress do not aware that the constitutionality of its exercise has ever not possess the power of investing the Supreme Court with been questioned by the decision of any State court, except appellate jurisdiction in any case which has been finally in a single instance, which did not occur until the year decided in the courts of the States. It has also been con- 1815. And even in that case, (Hunter vs. Fairfax,) the tended, that, even if they do possess this power, it does judgment of the Supreme Court was carried into effect not extend to cases in which a State is a party. On this according to the existing law, without endangering the branch of the question, we would refer the House to the peace of the country.

very able and conclusive argument of the Supreme Court The last topic to which we would advert is, the claim of the United States, in the cases of Martin vs. Hunter's which has been set up to exempt the judgments obtained lessee, (1st Wheaton, 304,) and Cohens vs. the State of by the States of this Union, before their own courts, in

civil and criminal suits, prosecuted in their name, from amendment is, that it was intended for those cases, and being reviewed by the Supreme Court of the United States for those only, in which some demand against a State is upon a writ of error. Much stress has been laid by those made by an individual in the courts of the Union. If we who sustain this claim, upon the general proposition that consider the causes to which it is to be traced, we are cona sovereign independent State cannot be sued, except by ducted to the same conclusion. A general interest might its own consent. But does this proposition apply, in its well be felt, in leaving to a State the full power of conextent, to the States of this Union? That is the question sulting its convenience in the adjustment of its debts, or for discussion. of other claims upon it; but no interest could be felt in We have in this country an authority much higher than so changing the relation between the whole and its parts, that of sovereign States. It is the authority of the sov-as to strip the Government of the means of protecting, ereign people of each State. In their State conventions by the instrumentality of its courts, the constitution and they ratified the constitution of the United States; and so laws from active violation. The words of the amendment far as that constitution has deprived the States of any of appear to the court to justify and require this constructhe attributes of sovereignty, they are bound by it, because tion. such was the will of the people. The constitution, thus call- "To commence a suit, is to demand something by the ged into existence by the will of the people of the several institution of process in a court of justice; and to proseStates, has declared itself, and the laws and treaties which cute the suit, is, according to the common acceptation of should emanate from its authority, to be "the supreme language, to continue that demand. By a suit commenced law of the land;" and the judges in every State shall be by an individual against a State, we should understand a bound thereby, any thing in the constitution or laws of process sued out by that individual against the State, for any State to the contrary notwithstanding. the purpose of establishing some claim against it by the

Why, then, should a State, who has obtained a judg- judgment of a court; and the prosecution of that suit is ment in her own courts against an individual, in violation its continuance. Whatever may be the stages of its proof this "supreme law of the land," be protected from gress, the actor is still the same. Suits had been comhaving her judgment reversed by the Supreme Court of menced in the Supreme Court against some of the States the United States? Is there any reason, either in the con- before the amendment was introduced into Congress, and stitution or in natural justice, why judgments obtained by others might be commenced before it should be adopted a State in her own courts should be held sacred, notwith-by the State Legislatures, and might be depending at the standing they violated the constitution and laws of the time of its adoption. The object of the amendment was > Union, which would not apply, at least with equal force, not only to prevent the commencement of future suits, in favor of individual plaintiffs? The constitution subjects but to arrest the prosecution of those which might be to the review of the Supreme Court all cases in law or commenced when this article should form a part of the

tion of the United States.

If a

equity arising under itself, or the laws of the Union. It constitution. It therefore embraces both objects; and excepts no case bearing this character. Whether the its meaning is, that the judicial power shall not be conparty be a State or an individual, all must alike bow to the strued to extend to any suit which may be commenced, Sovereign will of the people, expressed in the constitu- or which, if already commenced, may be prosecuted against a State, by the citizens of another State. In suits brought by a State against an individual in her suit, brought in one court, and carried by legal process to own courts, there is much greater danger of oppression, a supervising court, be a continuation of the same suit, considering the relative power and influence of the par- then this suit is not commenced nor prosecuted against a ties, than there would be in controversies between indiState. It is clearly, in its commencement, the suit of a viduals. And are these to be the only cases selected, in State against an individual, which suit is transferred to which the citizen shall not be permitted to protect him- this court, not for the purpose of asserting any claim self by the constitution and laws of the Union before the against the State, but for the purpose of asserting a conSupreme Court of the United States? Is it not sufficient stitutional defence against a claim made by a State. that, under the constitution, the States cannot be sued as "Under the judiciary act, the effect of a writ of error defendants, without adding to this, by a strained and un-is simply to bring the record into court, and submit the natural construction, the additional privilege that the judgment of the inferior tribunal to re-examination. judgments which they may obtain as plaintiff's or prose- does not, in any manner, act upon the parties; it acts only cutors before their own courts, whether right or wrong, shall in all cases be irreversible?

We will not repeat the considerations which have been already urged to prove, that, unless this provision of the constitution applies to the States, the rights of individuals will be sacrificed, all uniformity of decision abandoned, and each one of the States will have it in her power to set the constitution and laws of the United States at defiance.

The eleventh amendment to the constitution of the United States interferes in no respect with the principles for which we have contended. It is in these words:

It

on the record. It removes the record into the supervising tribunal. Where, then, a State obtains a judgment against an individual, and the court rendering such judg ment overrules a defence set up under the constitution, or laws of the United States, the transfer of this record into the Supreme Court, for the sole purpose of inquiring whether the judgment violates the constitution or laws of the United States, can, with no propriety, we think, be denominated a suit commenced or prosecuted against the State, whose judgment is so far re-examined. Nothing is demanded from the State. No claim against it, of any description, is asserted or prosecuted. The party is not to be restored to the possession of any thing. Essentially, it is an appeal on a single point; and the defendant who appeals from a judgment rendered against him, is never said to commence or prosecute a suit against the plaintiff, who has obtained the judgment. The writ of Chief Justice Marshall, in delivering the opinion of the error is given rather than an appeal, because it is the more court in the case of Cohens vs. Virginia, has given so usual mode of removing suits at common law; and beclear, and, in our opinion, so correct an exposition of the cause, perhaps, it is more technically proper, where a true construction of the amendment, that we shall, in con- single point of law, and not the whole case, is to be reclusion, present to the House a few extracts from that examined. But an appeal might be given, and might be opinion, instead of any argument of our own. He says so regulated, as to effect every purpose of a writ of error. that "the first impression made on the mind by this The mode of removal is form, not substance. Whether

"The judicial power of the United States shall not be construed to extend to any suit, in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State."