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general government from the encroachments of the State governments; 3d, where any title, right, privilege, or exemption claimed under the Constitution, laws, or treaties of the United States has been denied by the State Courts, -a power intended to secure to individuals the immunities held out to them by the laws and treaties of the Federal Govern


Upon the powers conferred by this section, depended the appellate jurisdiction of the Supreme Court of the United States over the State Courts, and without those powers, the permanency of the Union itself would be left at the mercy of the State Governments; and the constitutionality of the United States bank, the tariff, and of all treaties, whether with Indian tribes or foreign nations, would be subjected to such construction as the caprice or interests of twenty-four distinct communities should prescribe.

In pursuance of the mode pointed out in the twentyfirst section, various causes were brought up to the Supreme Court, involving the constitutionality of State laws and the construction of the Constitution, laws and treaties of the United States. They were considered as causes over which the Supreme Court had jurisdiction, owing to the nature of the question to be determined.

Some of the causes of this description were between private citizens and States, members of the Union. Suits commenced in the name of a State wherein the constitutionality of a State law or the validity of a treaty was brought

in question, were not regarded as falling within an amendment, the object of which was to prohibit private citizens from prosecuting their claims against a State Government.

In the case of Cohens vs. the State of Virginia, (which was removed from the State courts by a writ of error from a judgment invalidating a law of Congress,) objections were raised to the authority of the Court; first, because a State was a party on the record; and second, because no writ of error could constitutionally issue from the Supreme Court of the United States to a State Court.

The jurisdiction of the Court was sustained, and the opinion of Chief Justice Marshall gives so clear and correct an exposition of the true construction of the eleventh amendment, that we shall insert a few extracts, in order to shew the grounds upon which that judgment was given.

To commence a suit, is to demand something by the institution of process in a Court of justice; and to prosecute the suit is, according to the common acceptation of language, to continue that demand. By a suit commenced by an individual against a State, we should understand process sued out by that individual against the State, for the purpose of establishing some claim against it by the judgment of a Court, and the prosecution of that suit is its continuance. Whatever may be the stages of its progress, the action is still the same. Suits had been commenced in the Supreme Court, against some of the States before the amendment was

introduced into Congress, and others might be commenced before it should be adopted by the State legislatures, and might be depending at the time of its adop


'The object of the amendment was not only to prevent the commencement of future suits, but to arrest the prosecution of those which might be commenced when this article should form a part of the Constitution. It, therefore, embraces both objects; and its meaning is, that the judicial power shall not be construed to extend to any suit which may be commenced, or which, if already commenced, may be prosecuted against a State, by the citizens of another State. If a suit, brought into one Court, and carried by legal process to a supervising Court, be a continuation of the same suit, then this suit is not commenced nor prosecuted against a State. It is clearly, in its commencement, the suit of a State against an individual, which suit is transferred to this Court, not for the purpose of asserting any claim against the State, but for the purpose of asserting a constitutional defence against a claim made by a State.'

Under the judiciary act, the effect of a writ of error is simply to bring the record into Court and submit the judgment of the inferior tribunal to re-examination. It does not in any manner act upon the parties ; it acts only 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

judgment 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 defendent who appeals from a judgment rendered against him, is never said to commence or prosecute a suit against a plaintiff who has obtained the judgment. The writ of error is given rather than an appeal, because it is the more usual mode of removing suits, at common law; and because, perhaps, it is more technically proper where a single point of law, and not the whole case, is to be re-examined. But an appeal might be given, and might be so regulated as to affect every purpose of a writ of error. The mode of removal is form, and not substance. Whether it be by writ of error or appeal, no claim is asserted, no demand is made by the original defendent; he only asserts the constitutional right to have his defence examined by that tribunal whose province it is to construe the Constitution and laws of the Union.'

'The only part of the proceeding, which is in any manner per

sonal, is the citation. And what is the citation? It is simply notice to the opposite party, that the record is transferred into another Court, where he may appear, or decline to appear, as his judgment or inclination may determine. As the party who has obtained a judgment is out of Court, and may, therefore, not know that his cause is removed, common justice requires that notice of the fact should be given him; but this notice is not a suit, nor has it the effect of process. If the party does not choose to appear, he cannot be brought into Court, nor is his failure to appear considered as a default. Judgment cannot be given against him for his non-appearance; but the judgment is to be re-examined and reversed or affirmed, in like manner as if the party had appeared and argued his cause.'

"The point of view in which this writ of error, with its citation has been considered uniformly in the Courts of the Union, has been well illustrated by a reference to the course of this Court in suits instituted by the United States. The universally received opinion is, that no suit can be commenced or prosecuted against the United States; that the judiciary act does not authorise such suits; yet writs of error, accompanied with citations, have uniformly issued for the removal of judgments in favor of the United States into a Superior Court, where they have, like those in favor of an individual, been re-examined, and affirmed or reversed. It has never been suggested that such writ of error was a suit against the Unit

ed States, and therefore not within the jurisdiction of the appellate Court."

It is, then, the opinion of the Court, that the defendent who removes a judgment rendered against him by a State Court into this Court, for the purpose of re-examining the question whether that judgment be in violation of the Constitution or laws of the United States, does not commence or prosecute a suit against the State; whatever may be its opinion, where the effect of the writ may be to restore the party to the possession of a thing which he demands.'

As by that decision the Federal Judiciary was enabled effectually to vindicate the powers of the General Government, it became the particular object of censure and complaint with those, who deemed the rights of the States invaded. The present Congress was deemed a proper one to disenthral the States from the yoke, which had thus been fastened upon them, and as the most effectual mode of doing this, the Judiciary committee recommended the repeal of the twenty-fifth section of the Judiciary act. This would completely emancipate the State Courts from the control of the Federal judiciary, and under the specious notion of maintaining State sovereignty, the treaties and the Constitution of the United States, would be construed according to the fluctuating interests or caprices of the twenty-four independent States forming this confederacy.

In opposition to this report and bill, the minority of the commit

Letcher, Magee, Mallary, Martindale, Lewis Maxwell, McCreery, McDuffie, McIntire, Mercer, Miller, Mitchell, Monell, Muchlenburg, Norton, Pierce, Pierson, Powers, Reed, Richard

tee submitted a counter report, and upon reading the bill of the committee Mr Doddridge moved, that it be rejected without allowing it a second reading. After some desultory conversation, the second reading was postponed un-son, Rose, Russell, Sanford, til the 29th of January, when the Scott, William B. Shephard, Aug. subject again coming before the H. Shepperd, Shields, Sill, House, the previous question was Speight, Ambrose Spencer, Richordered, and the main question ard Spencer, Sprigg, Standefer, being put, shall this bill be re- Sterigere, Henry R. Storrs, Wm jected,' it was carried Ayes 137, L. Storrs, Strong, Sutherland, Nays 51. Swann, Swift, Taylor, Test, J. Thomson, Vance, Varnum, Verplanck, Vinton, Washington, Weeks, Whittlesey, C. P. White, Edward D. White, Williams, Wilson, Wingate, Young-137.

YEAS-Messrs Anderson, Armstrong, Arnold, Bailey, Noyes Barber, John S. Barbour, Barringer, Bartley, Bates, Baylor, Beekman, J. Blair, Bockee, Boon, Borst, Brodhead, Brown, Buchanan, Burges, Butman, Cahoon, Chilton, Clark, Condict, Cooper, Coulter, Cowles, Craig, Crane, Crawford, Crockett, Creighton, Crocheron, Crowninshield, John Davis, Deberry, Denny, De Witt, Dickinson, Doddridge, Dorsey, Drayton, Dwight, Eager, Earll, Ellsworth, G. Evans, Joshua Evans, Edward Everett, Findlay, Finch, Forward, Fry, Gilmore, Gorham, Green, Grennell, Gurley, Halsey, Hemphill, Hodges, Holland, Hoffman, Hubbard, Hughes, Hunt, Huntington, Ihrie, Ingersoll, Thomas Irwin, William W. Irvin, Johns, Cave Johnson, Kendall, Kennon, Kincaid, Perkins King, Adam King, Leavitt, Leiper, Lent,

NAYS-Messrs Alexander, Allen, Alston, Angel, Barnwell, Bell, James Blair, Bouldin, Cambreleng, Campbell, Chandler, Claiborne, Clay, Coleman, Conner, Daniel, Davenport, W. R. Davis, Desha, Draper, Foster, Gaither, Gordon, Hall, Harvey, Haynes, Hinds, Jarvis, Richard M. Johnson, Lamar, Lecompte, Lewis, Loyall, Lumpkin, Lyon, Martin, Thomas Maxwell, McCoy, Nuckolls, Overton, Patton, Pettis, Polk, Potter, Roane, Wiley Thompson, Trezvant, Tucker, Wickliffe, Wilde, Yancy-51.

So the bill was rejected, and the constitutional powers of the Supreme Court of the United States, vindicated and maintained.


Distinction between Federal and State Governments.-Prospects of the Country-Commerce.-Manufactures.—Internal Improvement.-Policy of Federal Government.—History of Policy.Madison's Veto.-Course of Congress.-Monroe's Veto.-Act of April, 1824.-Objects of Act.-Policy of Adams' Administration.-Progress of Internal Improvement.-Course of Jackson's Administration.-Veto.-Bills retained.-Grounds of Objection.-Report of Committee on Internal Improvement.-Debate in House.-Congress acts in opposition to sentiments of President.-President yields to Congress.

all legislation concerning corporations, the private relations of society, as between master and servant, parent and child, man and wife, guardian and ward; concerning real estate, wills, contracts, evidence, civil rights; and generally all municipal legislation, exclusively belong to the State Governments.

THE entire want of any settled policy in the management of domestic affairs, which has been before mentioned as characterising the present administration, did not so materially affect the general course of the business and prosperity of the country as might naturally have been expected. When a principle is once adopted by the Government of this country, as a Any mal-administration of the rule of action, although not follow- Federal Government does not ed out by the administration suc- consequently affect at once the ceeding that which adopts it, an community at large. Its duty is impulse is given to the public chiefly confined to the managemind; and the distribution of po- ment of topics of national concern, litical power among the Federal as the defence of the Union, the and State Governments affords administration of the impost sysmany opportunities of carrying tem, the public domains, the forthat policy into effect, even in the eign relations, and those powers absence of all action on the part which, for the sake of ensuring of the Federal Government. The tranquillity and of giving union to action of the State Governments the confederacy, were confided to becomes still more important, the national Government. Unless when we regard those subjects these affairs are so managed as to peculiarly within their jurisdiction. glaringly shock the public feeling, The ordinary administration of no great excitement is likely to criminal and civil jurisprudence; be produced in the body of the

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