It would appear to me to follow, from the view I have taken of the subject, as congress has no right, under the con stitution, to transfer to the state courts any portion of the ju dicial power of the United States, that this court cannot legally comply with the requisition or mandate of the Supreme court to register its decree, and enforce the execution thereof; which appears to me to be plainly a demand upon this court to exercise a portion of that judicial power, which by the constitution is vested in the Supreme court, and such inferior courts as congress shall ordain and establish. Before there should be a compliance with the requisition of the Supreme court, it ought to be proved that this court is ordained and established by congress.

It is contended by the gentlemen who advocate the jurisdic tion of the Supreme court, that if the power of awarding a writ of error to the state courts, from the federal tribunals, be decided to be constitutional, the provision which enables a defendant to remove a cause to the courts of the United States, is equally so. If this consequence would result, it would not prove the power of the Supreme court, in the present instance. All that could be said would be, that both provisions are equally nugatory; and that it is not incumbent on those who contend against the jurisdiction of the court of the United States, in one case, to establish it in another. But it seems to me that the two provisions stand on essentially different ground. In the one case, all that congress say is, that in particular instances, coming within the acknowledged limits of federal jurisdiction, the state courts shall cease to act. They are not called upon to exercise federal jurisdiction, but to abstain from acting, in a case where cognizance is given, by the policy of the constitution, to the United States' tribunals. In the case now under discussion, the power attributed to the Supreme court is, to force a state court from its proper orbit, and to place it within the sphere of a system, of which it constitutes no part, and to which, by the terms of the constitution, it is foreign.

Another objection to the power contended for is, that the act of congress is not just or equal in its operation. If a deci sion is on one side, an appeal lies; but if on the other, it is conclusive. One object of the constitution was to establish justice. Can it be said to attain this end, when the conclusive-ness of a judicial sentence is made to depend, not on its con formity to the principles of law or equity, but to the side of the question which the court happens to approve?

The cases referred to on the other side do not appear to be applicable. Olmstead's case was that of a decision of the federal court, acting within its appropriate sphere, and triumphing over an improper opposition from state authorities. Nor can the respect which has been paid to the decisions of the federal courts, by those of the states, in treaty questions, particularly in those which related to the payment of British debts, be considered as a recognition of the right, in the courts of the United States, to exercise the appellate power claimed for them. It only proves the existence of a comity between those courts, which the public good requires, should always subsist; and that the state courts feel-as I trust they always will-great deference and respect for the decisions of able and enlightened men, particularly in relation to questions which depend on the construction of the laws of the United States, or treaties made under their authority.

The government of the United States, viewed as a national government, instituted for general objects, but operating on states, which retain their individual sovereignties, must be considered peculiar in its organization. No exact parallel is to be found in the ancient confederacies, or those of more modern times. This will afford an answer to any analogies which are supposed to exist between the courts in England, awarding writs of error, to the courts of the dependencies on that country, and a similar power exercised by the Supreme court, to those of the states. Though the ultimate resort from the courts of Ireland is to those of England,-the court of King's Bench warding writs of error to the King's Bench in Ireland, and an appeal lying from the Irish court of Chancery to the house

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of lords-yet it will be seen, by reference to the writers on English jurisprudence, that this appellate power in the English courts is founded on the acknowledged inferiority and dependence of Ireland on the crown of England; which dependence is not marked out by a particular charter, limiting its extent, but is general in its nature, and in a great degree regulated by expediency, in its application. [See 1 Blac. 104.] The same observations apply to the other colonies and dependencies on the British crown. But, surely, these examples are inapplicable to our case, where the authority of the head of the confederacy is specially defined; where all power, not given, is retained, and where the state sovereignties are admitted to exist; unless, indeed, it can be shown that the authority claimed is embraced by the charter, transferring to the general government a portion of the powers originally vested in the states and the people. It has already been attempted to be demonstrated, that nothing in the constitution impairs the independency of the state judiciaries, and that congress has no power to employ them as vehicles to administer the laws of the union,

Hay, as amicus curia. The questions which I propose to discuss, are these: 1. Is the 25th section of the judicial act, which gives to the Supreme court of the United States an appellative jurisdiction, in certain cases decided in the Supreme court of a state, authorized by the constitution of the United States? 2. If this section be not so authorized, can this court undertake to declare it unconstitutional; or does the right to make this declaration in this case, and in all cases affecting the jurisdiction of the Supreme court of the United States, belong, exclusively to that court?

Before I engage in the discussion of the first question, to which my attention will be principally directed, I will submit a few remarks not yet presented to the court, which possibly may contribute to make straight the way, leading to the ground about to be explored.

There is a radical difference between a state government and that of the United States. The first possesses a general, the latter a special power of legislation. A state government No. XXIII. 3 C

possesses a right to legislate on all subjects, those only excepted, on which it is forbidden to act. The government of the United States, on the other hand, possesses no power to legislate, except on those subjects on which it is expressly empowered to act.

The inference from the proposition just stated, is, that when the validity of a state law is denied, he who makes this denial, must prove that it is forbidden by the constitution of the state, or that of the United States. But when a law of the United States is brought into question, it must be proved to be made in conformity to the federal constitution.

This inference applies directly to the case before the court. A claim of appellate jurisdiction over this court, is made in behalf of the Supreme court of the United States, and the 25th section before mentioned, is exhibited as the foundation of the claim. I require proof that the constitution of the United States gave to congress power to pass this law. The onus probandi lies on my opponents; it is not enough for them to create a doubt upon the subject; as long as there is doubt, the claim cannot be allowed; they must prove that the law is warranted by the constitution of the United States. But I am content to relinquish this point, and am willing to concede, what in strictness cannot be required, that every law passed by the congress of the United States and approved by the president, ought, not only in the courts of the United States, but in this court and in all courts, to be presumed to be warranted by the constitution of the United States. Under this concession, it is incumbent on me to prove that the law in question is not so warranted. This task I undertake to perform, not by subtle and technical disquisition, not by means of that sort of special pleading, which after being almost driven from the law, has lately found refuge in politics; but by a fair, rational, candid, and I may add, a liberal interpretation of the constitution.

The court, I trust, will not deem it improper in me to remark, that in advocating this doctrine, I am not delivering with a view to suit my own argument, an opinion recently formed, the result of reflections since the commencement of this dis

cussion; but an opinion, adopted and maintained several years past, after mature deliberation. I am now travelling through a country, which I have frequently explored.-Some of the judges of this court, perhaps all, will distinctly understand me.

I will submit another preliminary remark. The great and fatal defect of the old confederation, was, that the exercise of its most important powers, depended on the co-operation of the state governments. Instead of raising men for the defence of the nation and money to supply the public wants by its own authority, acting directly and immediately on the people, it was compelled to rely on requisitions addressed to the legislatures of the states.

The object of the new confederation was to remedy this defect, by making the powers of the general government, entirely independent of the state governments, and by applying them, without the concurrence of any intermediate authority, directly to the people. It is believed, that this policy has been uniformly maintained throughout the constitution. Not a single instance is recollected in which the effect of a power, granted to the general government, is left to depend on the consent or co-operation of the states. But the construction of the constitution, now contended for by the appellee's counsel, in giving to the Supreme court of the United States an appellate jurisdiction over the Supreme court of a state, produces an anomaly in our system, which it is difficult to believe could have been intended. If the state court will not suffer its record to be sent up, or refuses to register the edict of reversal, a collision, against which the government is in all other cases effectually secured, is unquestionably produced.

A third preliminary remark, may not be unworthy of attention.

Great stress has been laid on the fact, that the law in question was adopted by many of the men who formed the constitution; and the inference is, that they must have understood the meaning and spirit of the constitution, which they had themselves contributed to establish. This reasoning is repelled by many considerations, cogent, if not conclusive.