attached by Mr. Webster to these words, we conceive quite unworthy of him. Every lawyer in the land must be sensible, that the insertion of this clause does not enlarge, but simply defines the jurisdiction of the Courts, as amounting precisely to what it would have been had the phrase been omitted. It would, indeed, be a novelty, that a government should be created and a judiciary established whose power did not extend by implication to the construction of its own laws, and also of the Constitution which is its supreme law. The express jurisdiction in question was therefore not necessary-it would attach by implication. But as regards this argument, it is immaterial whether the cognizance be express or implied. There can be no distinction in the character or functions of a Court, between a case, in which it is restricted to the use of a particular power in express terms, and the grant of the same power as a matter of acknowledged inference. If there, then, be no difference, and the extension of the judicial power to cases arising under the Constitution did not confer on the Court an atom of power which it would not otherwise have possessed, what becomes of its high prerogative to decide on the destinies of sovereign States. Will any rational man contend that if these phrases had been omitted, the Supreme Court would be invested with the magnificent power ascribed to it. And yet, if the opposite reasoning be correct, and it is the cognizance given in these cases which constitutes that Court as the arbiter, it would be equally entitled to the power, whether the cognizance be expressed or implied. The specification of "controversies to which the United States shall be a party," applies according to the admission of the Chief Justice, in Chisolm v. Georgia, to cases where the United States are plaintiff. There is, therefore, not a State court in the Union which has not the cognizance which the United States courts have. There is nothing to prevent the United States from bringing an action in a State court on a custom-house bond. And so the King of Great-Britain may become plaintiff in a State court, and a State court has concurrent jurisdiction with the Federal court, in all cases "arising under the Constitution."

The misconception prevailing in the public mind as to the true nature of the question between this State and the General Government, arises from the want of that distinction which must always subsist between a judicial and a political question. Both these questions under the federal compact may arise at the same time from the same subject of dispute. The first belongs solely to the judiciary. The second to the parties to the compact. The one affects the citizens of the

States. The other the State sovereignties. If a law be passed contrary to the compact, the judges have the power to declare that law null and void, if, in any case brought before them, its validity shall be drawn in question. This is a discretion with which all judges, both superior and inferior, must be invested as indispensable to the administration of justice. But this power to declare a law of Congress, or any of the States unconstitutional, is not, as Mr. Senator Rowan observes, "conferred or intended to be conferred upon the judiciary of any of the States, or of the General Government as a direct substantive power. The exercise of this power is incidental to the exercise of the mere judicial power which was conferred. The validity of a law, involved by a case, may be incidentally decided in deciding the law and justice of the case. But the decision must be made with an eye to the law and justice of the case, and not in reference to the just or unjust exercise of the legislative power which was exerted in making the law. Not with the view to check, control, or restrain the legislative power. It must be given in the exercise of merely judicial and not of political power." Such is the nature of judicial power, that it decides not only on the validity of the laws of the sovereignty to which it belongs, but also of the laws of other sovereignties. Were a New-Hampshire legislature to emit bills of credit, and make them a tender in payment of debts, contrary to the Constitution of that State, and a citizen were sued on his bond given in New-Hampshire in our Courts, on a plea of a tender having been made in those bills, such a plea would not be received, but our Courts would declare the law of New-Hampshire null and void. This circumstance conclusively shews, that the power of a Court to declare a law unconstitutional is not direct or substantive, but is merely incidental to the administration of justice; for a South-Carolina judiciary can have no direct or substantive power to set aside a law of New-Hampshire. The existence of the same question, as judicial and political at the same time, may be familiarly illustrated in the case of a common treaty between two sovereigns. In this instance, the judiciary of each government is intrusted with the exposition of the treaty, and it is the final arbiter in every case between a foreigner and a subject as to the validity of all rights claimed under the treaty. But still the interpretation given by the Courts does not preclude the two governments from giving their own interpretation independent of the judiciary of either. When the question is raised between individuals as to rights under a treaty, it is a judicial question. When the sovereigns themselves differ as to the meaning of the treaty as regards the same rights,

the question becomes political. Our own history furnishes somewhat of an example, and if such cases can occur in a common treaty, they may as naturally be expected to arise in a Confederation of republics which, in its formation, is essentially a treaty.

In the definitive treaty of peace with Great-Britain, there was an article, that "creditors on each side should meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts her tofore contracted." Many questions arose under this treaty, a notice of which will be found in the proceedings of the Board of Commissioners who were appointed to liquidate the claims of British creditors under Mr. Jay's treaty of 1794. Amongst them were these. Does the fourth article of the treaty of peace, confine the debts to such as existed at the date of the treaty, or had it a retrospective operation, so as to embrace the demands of British creditors, confiscated before the treaty? What are lawful impediments within the meaning of the treaty? Is a plea a lawful impediment, &c.? These questions were made in the different tribunals, and some of them on appeal to the Supreme Court. But whilst our judges were considering the judicia! question, and some of them deciding against the British creditors, the two governments were discussing the political question, whether the treaty had not been violated in spirit or letter, or in both. There was crimination and recrimination. Our goverment complained that the Western posts had not been delivered up. Lord Carmarthen retorted, that the treaty was violated on our part by'its misinterpretation in our courts, and by the enactment of instalment and other laws impeding the recovery of British debts. The two governments then entered into a special negotiation, and the result was the treaty of amity, commerce and navigation of 1794. It so happened, that our government did not essentially differ, if it may be said to have differed at all, with England as to the true interpretation of the treaty, but had Mr. Jefferson wholly coincided in opinion with some of our courts, there would have been presented this perfect example, that whilst the construction of a particular article of that treaty was a judicial question constantly occurring in our tribunals of justice; it was, at the same time, a political question between Mr. Jefferson and Mr. Hammond, and, at length, was made the subject of negotiation between the high contracting parties. May not this be the case as regards our present dispute. Whether the tariff be unconstitutional or not, is, between a citizen and the government on a custom-house bond, a judicial question, and, if finally litigated in the Supreme Court, that Court, under the

Constitution, is the final arbiter, not only because it had express jurisdiction, but also upon the same principle that our courts, in the case of the British treaty, were the arbiters. But as soon a. the citizens shall be so oppressed by the operation of this law, as to make it expedient for the sovereign parties to the Federal compact to interfere, it then becomes a political question or international dispute, with which the Judges have no concern; and, in the event of such a question being once raised between the States, we conceive, it would be as much the duty of the Federal judiciary to await the decision of the States, as it would be the duty of the judges of England and France to suspend their judgments in all cases, where, on either government becoming dissatisfied with the interpretation of a treaty by the other, it becomes a political question between their respective cabinets. The judicial exposition of the treaty must, then, conform itself to the political interpretation as agreed upon by the parties.

The analogy between these cases, under a treaty, and a collision between a State and the government may, perhaps, be denied on the ground that there is constituted by the compact, a judiciary power for the especial purpose of giving an interpretation to that compact, which is not the case in a common treaty. True; and the objection would, of course, be fatal, if the judicial power had been expressly instituted for the purpose of interpreting the compact, in all cases of difference, as well between the parties to the compact, as between citizen and citizen in the ordinary administration of justice. Any such provision would have made the Supreme Court a special arbiter, and the States would have been as strictly bound by the award of this tribunal, as the Cautons composing the Helvetic confederacies were by the special provisions which their leagues contained. But this is not the case here. The apparent want of similitude between a treaty and the American Constitution, arises from our not adverting sufficiently to the true cause of the establishment of the judicial power. Such a power was indispensable. Our anomalous government, though strictly a league in its creation, is yet national in its operation. It was to act upon the citizens of the contracting parties, and therefore, it was indispensable that tribunals should be instituted to execute its own laws. Once constituted, these tribunals would, necessarily, whether the power was given or not, have to give a construction to the compact whenever the citizens, on whom the compact was to operate, should bring before it a specific controversy. For this purpose, and no other, was the judicial power created, and not to decide a political question which might arise between their constitu

ents, the States. We think we cannot place the objection to our aualogy, in a stronger point of view than by presenting to the opposite argument this alternative-either to consider that it was the plan of the Constitution that there should be appointed a special arbiter between a State and Congress, and a power given for such purpose; or, that no such intention existed. If the choice falls upon the first proposition, a judicial power is still necessary to decide the same, or other cases arising under the Constitution between a citizen and the government. If the last be adopted, there is the same necessity for a judicial power in the same cases. The distinction suggested between our Constitution and a treaty is, in this respect, a distinction without a difference. In the one case, a tribunal is provided by the parties to the compact to decide on all differences between citizen and citizen, as to the meaning of the compact; whereas in the other case, tribunals are already at hand, who have the same indisputable power of interpreting the treaty, and to which tribunals all parties confide, as the arbiter to decide between their respective subjects, as to all rights claimed on either side under the treaty. Let the words "cases arising under the Constitution" be expunged. The United States courts would still have the power, and then, where exists the difference between the two cases? The Federal courts have the power to interpret the Constitution by implication. The French and English Courts have the same power in a treaty between France and England. The result is, that the Supreme Court is not more the special arbiter between one citizen and another, or between the government and a citizen, in cases arising under our Constitution, than the courts of England and France are the arbiters in cases arising under their treaties. All these courts can bind individuals, but neither can bind the sovereign parties. Every court in the world is equally an arbiter to decide rights under treaties, when such questions incidentally arise before them, no matter between whom the treaties are made, and yet no judicial power on earth was ever known to bind the parties to a treaty.

To us, then, it is clear, that it is not committed to the judiciary to give an interpretation to a political compact in case of a difference between the sovereign parties themselves. They have no concern with political questions. Our author, of "Caroline," very properly observes:

"Controversies may arise under the Constitution between political departments in relation to their powers; between the legislature and treaty making departments; between the Senate and House of Representatives; between the President and the Senate; or between the State and Federal departments; but they would not be cases in law and