cases was held to overrule all state decisions and state legislation.1

§ 387. If, then, reasoning from the terms of the constitution, and the known principles of our jurisprudence, the appropriate conclusion is, that the judicial department of the United States is, in the last resort, the final expositor of the constitution, as to all questions of a judicial nature; let us see, in the next place, how far this reasoning acquires confirmation from the past history of the constitution, and the practice under it.

2

§388. That this view of the constitution was taken by its framers and friends, and was submitted to the people before its adoption, is positively certain. The Federalist says, "Under the national government, treaties and articles of treaties, as well as the law of nations, will always be expounded in one sense, and executed in the same manner; whereas, adjudications on the same points and questions in thirteen states, or three or four confederacies, will not always accord, or be consistent; and that as well from the variety of independent courts and judges appointed by different and independent governments, as from the different local laws, which may affect and influence them. The wisdom of the convention in committing such questions to the jurisdiction and judgment of courts appointed by, and responsible only to, one national government, cannot be too much commended." Again, referring to the objection taken, that the government was national, and not a confederacy of sovereign states, and after stating, that the jurisdiction of the national government extended to certain enumerated objects only, and left the resi

1 Dane's App. § 52, p. 65; Penhallow v. Doane, 3 Dall. 54; Journals of Congress, 1779, vol. 5, p. 86 to 90; 4 Cranch, 2.

2 The Federalist, No. 3.

case.

due to the several states, it proceeds to say: "It is true, that in controversies between the two jurisdictions (state and national) the tribunal, which is ultimately to decide, is to be established under the general government. But this does not change the principle of the The decision is to be impartially made according to the rules of the constitution, and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword, and a dissolution of the compact. And that it ought to be established under the general, rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated." 2

§ 389. The subject is still more elaborately considered in another number, which treats of the judicial department in relation to the extent of its powers. It is there said, that there ought always to be a constitutional method of giving efficacy to constitutional provisions; that if there are such things as political axioms, the propriety of the judicial department of a government being co-extensive with its legislature, may be ranked among the number; that the mere necessity of uniformity in the interpretation of the national law decides the question; that thirteen independent courts of final jurisdiction over the same causes is a hydra of government, from which nothing but contradiction and confusion can proceed; that controversies between the

1 The Federalist, No. 39.

2 See also The Federalist, No. 33.

3 The Federalist, No. 80.

4 The same remarks will be found pressed with great force by Mr. Chief Justice Marshall, in delivering the opinion of the court in Cohens v. Virginia, (6 Wheat. 234, 364.)

nation and its members can only be properly referred to the national tribunal; that the peace of the whole ought not to be left at the disposal of a part; and that whatever practices may have a tendency to disturb the harmony of the states, are proper objects of federal superintendence and control.

§ 390. The same doctrine was constantly avowed in the state conventions, called to ratify the constitution. With some persons it formed a strong objection to the constitution; with others it was deemed vital to its ex

1 In The Federalist, No. 78 and 82, the same course of reasoning is pursued, and the final nature of the appellate jurisdiction of the Supreme Court is largely insisted on. In the Convention of Connecticut, Mr. Ellsworth (afterwards Chief Justice of the United States) used the following language: "This constitution defines the extent of the powers of the general government. If the general legislature should at any time overlcap their limits, the judicial department is the constitutional check. If the United States go beyond their powers; if they make a law, which the constitution does not authorize, it is void; and the judicial power, the natio al judges, who, to secure their impartiality, are to be made independent, will declare it void. On the other hand, if the states go beyond their limits; if they make a law, which is a usurpation upon the general government, the law is void, and upright and independent judges will declare it. Still, however, if the United States and the individual states will quarrel; if they want to fight, they may do it, and no frame of government can possibly prevent it." In the debates in the South Carolina legislature, when the subject of calling a convention to ratify or reject the constitution was before them,* Mr. Charles Pinckney (one of the members of the convention) avowed the doctrine in the strongest terms. "That a supreme federal jurisdiction was indispensable," said he, "cannot be denied. It is equally true, that in order to ensure the administration of justice, it was necessary to give all the powers, original as well as appellate, the constitution has enumerated. Without it we could not expect a due observance of treaties; that the state judiciaries would confine themselves within their proper sphere; or that a general sense of justice would pervade the Union, &c. That to ensure these, extensive authorities were necessary; particularly so, were they in a tribunal, constituted as this is, whose duty it would be, not only to decide all national questions, which should arise within the Union; but to control and keep the state judiciaries within their proper limits, whenever they should attempt to interfere with the power."

* Debates in 1788, printed by A. E. Miller, 1831, Charleston, p. 7.

istence and value. So, that it is indisputable, that the constitution was adopted under a full knowledge of this exposition of its grant of power to the judicial department.2

§ 391. This is not all. The constitution has now teen in full operation more than forty years; and during this period the Supreme Court has constantly exercised this power of final interpretation in relation, not only to the constitution, and laws of the Union, but in relation to state acts and state constitutions and laws, so far as they affected the constitution, and laws, and treaties of the United States. Their decisions upon these grave questions have never been repudiated, or impaired by congress.1 No state has ever deliberately or forcibly resisted the execution of the judgments founded upon

1 It would occupy too much space to quote the passages at large. Take for an instance, in the Virginia debates, Mr. Madison's remarks. "It may be a misfortune, that in organizing any government, the explication of its authority should be left to any of its co-ordinate branches. There is no example in any country, where it is otherwise. There is no new policy in submitting it to the judiciary of the United States." 2 Elliot's Debates, 390. See also Id. 380, 383, 395, 400, 404, 418. See also North Carolina Debates, 3 Elliot's Debates, 125, 127, 128, 130, 133, 134, 139, 141, 142, 143; Pennsylvania Debates, 3 Elliot's Debates, 280, 313. Mr. Luther Martin, in his letter to the Maryland Convention, said: By the third article the judicial power is vested in one Supreme Court, &c. These courts, and these only, will have a right to decide upon the laws of the United States, and all questions arising upon their construction, &c. Whether, therefore, any laws, &c. of congress, or acts of its president, &c. are contrary to, or warranted by the constitution, rests only with the judges, who are appointed by congress to determine; by whose determinations every state is bound." 3 Elliot's Debates, 44, 45; Yates's Minutes, &c. See also The Federalist, No. 78.

66

2 See Mr. Pinckney's Observations cited in Grimké's Speech in 1828, p. 86, 87.

3 Dane's App. § 44, p 53, 54, 55; Grimké's Speech, 1828, p. 34 to 42. 4 In the debates in the first congress organized under the constitution, the same doctrine was openly avowed, as indeed it has constantly been by the majority of congress at all subsequent periods. See 1 Lloyd's Debates, 219 to 596; 2 Lloyd's Debates, 284 to 327.

them; and the highest state tribunals have, with scarcely a single exception, acquiesced in, and, in most instances, assisted in executing them.1 During the same period, eleven states have been admitted into the Union, under a full persuasion, that the same power would be exerted over them. Many of the states have, at different times within the same period, been called upon to consider, and examine the grounds, on which the doctrine has been maintained, at the solicitation of other states, which felt, that it operated injuriously, or might operate injuriously upon their interests. A great majority of the states, which have been thus called upon in their legislative capacities to express opinions, have maintained the correctness of the doctrine, and the beneficial effects of the power, as a bond of union, in terms of the most unequivocal nature. Whenever any

1 Chief Justice M'Kean, in Commonwealth v. Cobbett, (3 Dall. 473,) seems to have adopted a modified doctrine, and to have held, that the Supreme Court was not the common arbiter; but if not, the only remedy was, not by a state deciding for itself, as in case of a treaty between independent governments, but by a constitutional amendment by the states. But see, on the other hand, the opinion of Chief Justice Spencer, in Andrews v. Montgomery, 19 Johns. R. 164.

2 Massachusetts, in her Resolve of February 12, 1799, (p. 57,) in answer to the Resolutions of Virginia of 1798, declared, "that the decision of all cases in law and equity, arising under the constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the judicial courts of the United States ;" and "that the people in that solemn compact, which is declared to be the supreme law of the land, have not constituted the state legislatures the judges of the acts or measures of the federal government, but have confided to them the power of proposing such amendments," &c.; and "that by this construction of the constitution, an amicable and dispassionate remedy is pointed out for any evil, which experience may prove to exist, and the peace and prosperity of the United States may be preserved without interruption." See also Dane's App. § 44, p. 56; Id. 80. Mr. Webster's Speech in the Senate, in 1830, contains an admirable exposition of the same doctrines. Webster's Speeches, 410, 419, 420, 421. In June, 1821, the House of Representatives of NewHampshire passed certain resolutions. (172 yeas to 9 nays,) drawn