"that the state judicial sphere shall be subject to the controul of the federal judicial sphere ?" Or is it said, specially, that controversies as to jurisdiction between these two spheres shall be decided by one of the parties? Are controversies between the state and federal legislative spheres to be also decided by one of the parties? Neither conclusion can consist with the preceding opinion of Mr. Madison, that "the local or municipal au"thorities form distinct and independent portions of the supremacy no more subject within their respective spheres, to the general authority, than the general authority is subject to "them within its own sphere." However, therefore, we shift our words or phrases, in describing the powers delegated to the federal government and reserved to the states; whether we call them sovereign, supreme, legislative, executive or judicial; they still retain their spherical, limited, co-ordinate and independent nature, in relation to each other, according to the construction of contemporary writers of the best authority.

Fed. p. 456. H. "There is not a syllable in the plan which directly empowers the national courts to construe the laws "according to the spirit of the constitution, or which gives "them any greater latitude in this respect, than may be claimed "by the courts of every state:" Unequivocally rejecting the idea of judicial spherical subordination.

But this constitutional question is deliberately and distinctly stated, apparently upon the most profound consideration, in a style, and with a precision, which it would be presumptuous in me to defend, in certain resolutions of the Kentucky legislature, passed in the year 1798, said to have been drawn by Mr. Jefferson, and bearing internally, evidence of flowing from an enlightened mind. The first is in these words:" Resolved, "that the several states composing the United States of Ame"rica, are not united on the principle of unlimited submission "to their general government; but that by compact under the style and title of a constitution for the United States and of amendments thereto, they constituted a general government "for special purposes, delegated to that government certain definite powers, reserving each state to itself the residuary "mass of right to their own self-government; and that when"soever the general government assumes undelegated powers, «its acts are unauthoritative, void and of no force: That to this

"compact each state acceded as a state, and is an integral "party, its co-states forming, as to itself, the other party; that "the government created by this compact was not made the "exclusive or final judge of the extent of the powers delegated "to itself; since that would have made its discretion, and not "the constitution, the measure of its powers; but, that as in "all other cases of compact among parties having no common 'judge, each party has an equal right to judge for itself, as "well of infractions as of the measure of redress." The coordinacy of institution, the independence of each other, and the mutuality of the right of construing the federal constitution, are thus recognised and asserted, as existing in the federal and state governments; and the principle, which pervades the whole, must also pervade the parts. If the entire federal government possesses no supremacy over, and can require no subordination from the entire state governments, whilst acting within their respective spheres, no part or department of that government can exert a supremacy over, or exact a subordination from, the corresponding parts or departments of the state governments. The federal legislature having no supremacy over the state legislatures, the federal judicial power can have no supremacy over the state judicial power. The same prohibition of such claims, co-extensively forbids to both an enlargement of power by trespassing on the state sphere or state departments. It arises from the limited powers bestowed on the legislature and judiciary of the federal government, and the reservation of the residuary mass of right to the states.

With this construction, the oath of office prescribed by the federal constitution is a remarkable coincidence. Both legislators, judges and other officers, of the state as well as the federal governments, are required to take an oath to support the federal constitution; but neither federal legislators, judges nor other officers, are required to take an oath to support the state constitutions. The reason of this distinction is, that state legislators, judges and officers, have some duties assigned to them by the federal constitution, and would necessarily have others, arising from the laws of the United States; but, that federal legislators, judges or officers, having no duties to discharge under the state constitutions or laws, but being confined within the limited spheres defined by the federal consti

tution, no allegiance to state constitutions was necessary on their part. I cannot imagine a power more inconsistent with republican principles in general, and with ours in particular, than that claimed over the state laws, and consequently over the state constitutions, by the supreme federal court. It is under no obligation or responsibility of any kind to respect either. If it should violate its legitimate federal or spherical duties, it violates its oath; and is liable to trial and removal from office. But, in virtue of its supposed supremacy over the state courts, it might be tempted to annul state laws, to advance the power of congress, by whom it is paid and tried; and it might alter the institutions of the people according to its own pleasure, without even breaking an oath. The case is analogous in all its aspects to the claim of the British parliament, neither bound by an oath, nor elected, nor paid, nor removable by the people of the colonies, over the legislatures of these colonies; which were elected, paid and removable by the people, and also bound by an oath. A judicial power, though under the obligation of an oath, paid by the king of England, was justly considered in Massachusetts, as an outrage upon the principles of justice and liberty. It was a feather to one, created by and accountable to a native distinct government, emulous (as is the nature of man) of power, possessing a supreme power, over the laws of a collateral government, without being under any influence or responsibility to observe those laws.

But cannot judges declare unconstitutional laws void? Certainly. Constitutions are only previous supreme laws, which antecedently repeal all subsequent laws, contrary to their tenor; and the question, whether they do or do not repeal or abrogate such subsequent laws, is exactly equivalent to the question, whether a subsequent repeals a previous law. Therefore, judges, juries and individuals have a correspondent power of deciding this question in all legitimate occurrences. But the constitutionality of state laws cannot legitimately be decided by the federal courts, because they are not a constituent part of the state governments, nor have the people of the state confided to them any such authority. They have confided it to the state courts, under the securities of an oath, and of various modes of responsibility. The people also have confided to the federal

courts a power of declaring an unconstitutional federal law void, under similar securities; but where such a power is neither bestowed by the people, nor any security against its abuse provided, its assumption by inference is repelled by the absence of every regulation for moderating its exercise. In fact, the spheres of action of the federal and state courts are as separate and distinct, as those of the courts of two neighbouring states. Because the judges of each state are empowered under certain regulations to declare a law of their own state void, it does not follow, that the judges of another state can abrogate it. The federal judges owe no allegiance to the state governments, nor are more a component part of them, nor are more responsible to them, than the judges of a different state. Ramsay's United States, Vo. 1. p. 202. "Great Britain contended, that her "parliament, as the supreme power, was constitutionally in"vested with an authority to lay taxes on every part of the "empire." "If the British parliament, said the colonies, in " which we are unrepresented, and over which we have no con"troul, can take from us any part of our property, they may "take as much as they please, and we have no security for any thing that remains." p. 303. "That by the novel doctrine "of parliamentary power, they were degraded from being the "subjects of a king, to the low condition of being subjects of subjects." p. 306. "Where parliamentary supremacy ended, " and at what point colonial independence began, was not ascer"tained." p. 307. "The omnipotence of parliament was so familiar a phrase, that few in America, and still fewer in "Great Britain, were impressed, in the first instance, with the illegality of taxing the colonies.” Let us parody this quotation. The federal court contends, that as the supreme power, it is constitutionally invested with an authority to abrogate state laws, and contract state revenue. If, say the states, this court, over which we have no controul, can take from us any law, or any revenue, it may take away as many or as much as it pleases, and we have no security for retaining any. By the novel doctrine of federal judicial supremacy, we are degraded from the right of internal self-government, to the low condition of being subjects of subjects. Where the federal jurisdiction ends, and where state jurisdiction begins, is ascertained by the federal constitution, but the omnipotence of federal supremacy,

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legislative and judicial, may become so familiar a phrase, that few may be impressed, in the first instance, with the consequences to which it tends, or the evils in which it may termi

nate.

The first instance of a spherical supremacy which I recollect, was the claim of the treaty-making power, to bind the taxing or legislative power, by stipulating in a treaty for the payment of money. This was a dispute between two federal political spheres; but the principles, upon which it has been or must be settled, are those by which the rights of the federal and state political spheres can alone be ascertained. In both cases, to find where powers begin and end, we must either conclude, that one sphere cannot be let into another under a claim of supremacy, or by any verbal construction, so as to abridge rights bestowed by the constitution; or concede, that the constitution has unsuccessfully attempted to establish divisions of power between political departments. The federal legislative and treaty-making powers are obviously more interwoven with each other, than the federal and state powers delegated and reserved; yet the federal legislature would not be at a loss to find limits for the treaty-making power, nor to discern the powers confided by the constitution to itself. As the federal legislative sphere may justly deny to the treaty-making power, a right to abridge the powers delegated to itself by the constitution, under a claim of supremacy, or by any species of construction; so, the state spheres may justly deny to the federal legislative or judicial spheres, a right to abridge by similar modes the powers reserved to them. Suppose the treatymaking power should stipulate with England to declare war against France; would that deprive congress of the right of preserving peace, with which it is invested by the constitution? Suppose in like manner that congress should stipulate with a corporation by one of those laws called charters (in awkward. imitation of monarchical sovereignty,) that its property should not be liable to state taxation; can that deprive the states of a right as distinctly given to them by the constitution, as the right of declaring war is given to congress? Previously to an incorporation, its funds, of whatever species of property composed, were by the constitution subjected to state taxation. Could congress or the supreme court have exempted this pro

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