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which the Court can sustain a claim equivalent to exclusive jurisdiction for itself, is, the importance and even necessity of "uniformity of decisions throughout the whole United States," upon all subjects within the purview of the Constitution. It is, no doubt, desirable, that there should be "a revising authority, to control jarring and discordant judgments, and harmonize them into uniformity, so that the Constitution, the laws and treaties of the United States might have precisely the same and not an opposite construction, obligation and efficacy in all the States.” However cogent this argument might have been in the Convention on the question, whether an appeal ought or ought not to be given from the State courts, it certainly can have no weight in construing a Constitution, where limited powers are given to the judiciary, and it is the admitted rule in construction, that nothing is to be claimed which is not expressly given, or results by clear inference. Nor can an implication be attempted to this effect, unless it be shewn, that without the appellate jurisdiction, a serious want of uniformity and other public mischiefs would naturally follow. Less room would there be for such an implication, if it should appear that the provisions of the Constitution are such, as will rather prevent collision than engender it between the State and federal tribunals. Were cases arising under treaties between the United States and foreign powers of frequent occurrence, and jarring and discordant decisions given in Courts of the different States, some public mischief might be discovered in the interruption of the national harmony to arise out of this state of things. But the rights of foreigners under treaties are so well guarded by the Constitution, that these difficulties can seldom occur, unless, with the liberty they have of preferring their claims before the federal tribunals, which are in every State, foreigners choose to become suitors in the State courts. In such instances, we should scarcely suppose, that to deprive them of av appeal would give cause of offence to their sovereign. There could here be no violation of a treaty. But it is said, that foreigners may be dragged into a State court as defendants. This is true. But as this objection, together with others, is combated by Judge Roane of the Supreme Court of Appeals of Virginia, in Hunter v. Martin, we prefer to give bis own words in a very copious extract.
“An idea was early taken up by Congress, founded upon the opinions of the federal writers, (Federalist, passim) that the State judiciaries could not be considered as impartial in the case of treaties, and would embroil the United States with foreign nations. This disparagement of those authorities finds no counterpart in the Constitution itself. It
is true that the sixth article declares, that the Constitution, laws and treaties of the United States shall be the supreme law, and, that the judges of the several States shall be bound thereby, any thing in the laws or Constitution of any State to the contrary, notwithstanding. This article merely declares the supremacy of the Constitution, laws and treaties of the United States, (made in pursuance of that Constitution) over those of the several States, but evinces no distrust of the State judges. The only circumstance from which the contrary could possibly be inferred, is the oath imposed on them by the article ; but that inference is completely demolished by the consideration, that the oath is a general one to support the Constitution of the United States, and is required to be taken by the Federal, as well as the State judges. But if such distrust was deducible from the clause of the Constitution, the antidote is also provided : it exists in the oath imposed on them to support the Constitution of the United States. This is, in that view, if I may so express myself, the agreed remedy for the evil; and after this, it does not lie in the mouth of any to raise the objection. It is not for Congress to distrust those in whom the Constitution has confided; to distrust them in the exercise of an ancient and ordinary jurisdiction, and which has not been taken away or impaired by any specific grant in the Constitution. Whilst it is not material to enter into any comparison of the fitness of the respective judiciaries for that service, it may be asked, however, is it insinuated or expected that the Federal judges will yield to political consequences, and adapt themselves, in matters of treaty, to the policy of the administration ? I hope not : and yet it is difficult to assign any other ground on which their monopoly of jurisdiction on this subject has been so zealously contended for.
“ If the power, now in question, belongs to the State tribunals, when attaching therein, in exclusion of the Courts of the United States, the fact is well known to foreign nations, and must be submitted to by them. If it could even be deemed an outrage upon them, they must be content to receive the magnanimous answer given by the Queen of England to the Russian Emperor, (1 Black. Com. 256) namely, that she was not warranted by the laws of England in doing the arbitrary act which he required. I presume that the British nation, at least, would not quarrel with us, for following what has ever been deemed a proud example in her own annals. They would not condemn us for adjudging the decision of that tribunal to be fipat which her subjects, with a choice of jurisdiction before them, elected to resort to, and which (under the actual law of Congress on the subject) is final if found in their favour.
“ The power now contended for is no such mighty boon in favour of the State judiciaries, as may have been supposed. It is exercised, as I have already remarked, by the Courts of every civilized nation. On the ground of the contract following the person of the debtor, the laws of the country in which it originated, (including treaties and all) are to be decided on by foreign tribunals. They, indeed, would wish to conform to the constructions of the Courts of the State in which the contract originated: but their decisions, if otherwise, are, nevertheless,
final. Why shall the sovereign States of America, sovereign, in respect of all powers, not clearly and specifically granted to Congress, not possess the rights claimed and exercised by every other State? Why shall foreign nations require the head of a confederated government, to exercise powers not granted to it by the Constitution, and which would embroil it with the members of which the Confederacy is composed? Why shall we run this risk, and establish these preferences, in behalf of the subjects of nations, certainly yielding us no equivalent therefor, and at most, permitting foreigners to stand on the same footing, in their Courts, with themselves ?"
“It is here to be observed, that in most of the suits depending in this country, in which foreigners are parties, they will be plaintiffs and not defendants. They will not be defendants, because in general they remain in their own countries. As plaintiff's they have elected their jurisdiction, and there is no hardship in their being compelled to abide by it: and even in the few cases, in which they may be defendants, here this election is also extended to them, by the twelfth section of the judicial act; the constitutionality of which, bowever, I do not mean to inquire into. In every instance, therefore, in which a State tribuval passes upon the cause of a foreigner, he has made his election of the State judiciary. But if this were even otherwise, as to foreign defendants in the State courts, as in most instances, foreigners will be plaintiffs, when suing in this country, the rule of construction forcibly applies, that laws are to be expounded in relation to those cases que frequentius accidunt."
.“I have said, that this controlling power was not essential to preserve the peace of the nation. Without going into other considerations or authorities on the subject, it is sufficient to remark, that the American people have decided that it is no cause of offence to foreign nations, to have their causes decided, and exclusively and finally decided by the State tribunals. In that amendment to the Constitution, by which the jurisdiction of the Federal courts is prohibited, in suits brought against the State by foreign citizens or subjects, this construction is most undoubted, and has never been complained of. Since the adoption of that amendment, the election of jurisdiction has been entirely taken away from foreigners in suits against the States, and those suits can now be only brought in the State courts, in exclusion of every other:* and that, too, in cases in which, from the circumstance of the States themselves being parties, it might perhaps be plausibly argued, that the judges of the State courts were not free from bias. I consider that this clear declaration by the American people, and which has never excited a murinur in foreign nations, has put down the notion now in question. It has settled the question forever, that it is no cause of war to foreign nations, that the State judiciaries should finally decide the causes elected to be brought therein by their subjects. It has, consequently, overthrown the only foundation on which the whole superstructure of the 25th section of the judicial act has been supposed to rest.”
A State cannot be sued without its consent. This, however, makes the judge's position the stronger, for the foreigner cannot sue at all.
“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 not even 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. If, for example, the Supreme Court has decided against a treaty, and the Supreme Court of a State decides the same way, then this uniformity already exists, yet the appeal is allowed. If, on the other hand, the former Court decides against a treaty, and the latter in favour of it, this uniformity is wanting, and yet the appeal is denied.'
“The preceding remarks apply, a fortiori, to the limited and partial power of reversal, conferred on the Supreme Court by the 25th section of the judicial act.' It is, indeed, the natural offspring of the parent from which it has proceeded. The novel spectacle of a judgment being final or not, as it may chance to be, on one side or the other, and of a Court being of the last resort, or otherwise, as its decisions may happen to have been for one or other of the parties, is worthy of a system, which only admits the (State) judges to be impartial on one side of a given question. That, however, is a chimera, existing only in the imagination of a former Congress. It was an after-thought, well calculated to aggrandize the General Government, at the expense of those of the States; to work a consolidation of the Confederacy; and can only be pretended to be justified by the broad principles of construction, which brought the alien and sedition laws into our code. I would consign it to a common tomb with them, as members of the same family, and originating in the same era of our government."-4 Munford, 41.
There are, no doubt, other cases besides those in which foreigners are defendants. Cases may, possibly, arise between citizen and citizen in State Courts, involving questions under the Constitution and laws of the United States, in which flagrant injustice may be done to one of the parties, by a violation of his constitutional rights. A State may pass a law, making paper money a tender in payment of debts, or a law impairing the obligation of contracts. In such cases, if the Judges of the highest Court of Appeals in a State, choose to diregard their vaths, and palpably violate the Constitution, by giving validity to such acts, this is a case not more oppressive than many others which may now occur, and for which there can be no remedy, without opening a door to mischiefs infinitely worse, amongst which stands foremost, the degradation of Courts competent to take jurisdiction of the subject matter, into the vassal tribunals of a distinct sovereignty. Who would not prefer that injustice should be occasionally done to our citizens, through the ignorance or corruption of our judges, (and for which the remedy would be by impeachment) than to see humbled to the dust, the independence of the State judiciary, without which, it
is impossible there can be State sovereignty, or any security that the federal compact shali be preserved. Under such a state of things, the independence of the State judiciary would be an empty title. Experience has taught us, that Congress usurps power and not the States. Suppose that Congress should exercise any of the powers expressly prohibited to it Ly the Constitution, such as to pass a bill of attainder, or an ex post facto law, or lay a beavy tax on rice or cotton exported from our State, and no hope is.entertained that the Federal courts will give relief, if applied to in the first instance, what is the remedy. The Constitution provides it. The State courts are left, by that instrument, to the exercise of their inherent concurrent jurisdiction, and the State judges are bound, by oath, to support the Constitution, and they will, and must, give relief. To the Constitution it was indifferent to what tribunal, Siate or Federal, an oppressed citizen should apply for relief, when his chartered rights are violated. It relies upon all the tribunals to do equal and exact justice. It makes no distinction between the State and Federal judges. It has equal confidence in all. It has established for all, legislators as well as judges, one, and only one supreme law, (the Constitution) to which all must be bound, and for the observance of this supreme law, it has taken all the security which it could possibly have, to wit, the oaths of the Federal, as well as of the State judges, and the oaths of every legislator or public officer of the States, or United States. If Congress passes an unconstitutional law, oppressing the citizens of any State, the judges of that State would not hesitate to decide against its validity in all cases which might come before them. If the State, by its laws, violates the constitutional rights of its citizens, and its judges are corrupt, there is no remedy. The jurisdiction being concurent in many cases, whichsoever Court first possesses the case, proceeds to judgment. The judges of the Federal and State courts are but servants of the same master, THE CONSTITUTION, equally commissioned to obey its will, and fulfil its injunctions. Ņeither. Court is answerable to the other for its misconduct. They are mutually independent. But if the Federal judiciary can check a State court, because it renders invalid an act of Congress repugnant to the Constitution, and the State judiciaries have not a similar check upon a Federal court when it gives efficacy to unconstitutional laws, then the Supreme Court, and not the Constitution, is SUPREME, and the State judiciary is the servant of the Federal. Where was the necessity of requiring all these oaths to support the Constitution, to be taken by every public functionary of a State, from its governor down