and unconstitutional federal judgments binding? Can any other principle sustain the mode of amending the constitution, and the mutual check between the federal and state departments, so highly praised by the Federalist? If Congress, or the supreme court, can annul state laws or judgments, to what species of go vernment are those of the states to be assigned?

Thus we are conducted to the restriction contained in the words "cases in law and equity." Their true meaning must be preserved, or the plain intention of the constitution destroyed. A power to try cases in law and equity, has never been understood to comprise a power of common legislation, and much less the higher power of altering constitutions or forms of government. The English judiciary try cases in law and equity, but this does not comprise a power to alter the rights of the English political departments. These are the guardians of their own rights, not to be altered except by a concurrence of all. The state governments are also the guardians of their own rights, not to be altered except by a concurrence of three-fourths. The se nate of the United States is a precaution for preventing evasions of this concurrence, which would be defeated, if the supreme court could acquire a power of controlling the state governments, because the senate cannot revise judgments or decrees in cases of law and equity.

Controversies may arise under the constitution between political departments, in relation to their powers; between the legislative and treaty-making departments; between the senate and the house of representatives; betwee.. the president and the senate; or between the state and federal departments; but they would not be cases in law and equity, nor is any power to decide them given to the federal judiciary. One species of controversy relates to the form of government; he cher flows from its operation. The power by which a gover: dent is formed or altered,' is not the power by which the law-suits of individuals are tried; and therefore a power to try suits in law and equity, was never supposed to comprise the former power.

Among the cases to which the federal jurisdiction is extended,' not one is to be found recognising a power to decide controver sies between any of these political departments. It is incon-'

ceivable that a jurisdiction, transcending beyond comparison the jurisdiction cautiously specified, should have been tacitly given without any specification. In two cases only, the federal courts have received an exclusive jurisdiction, arising from the circumstance that these were cases created by the constitution, and not comprised by the anterior state sovereignties; in all other cases the states have a concurrent jurisdiction, because they were. Any other parties may institute suits in the state courts, and upon the same principle, an ambassador or consul fleeing from punishment for a criminal act, would be surrendered to the justice of the state tribunals.

The second section of the third article, resorted to as an extension of federal judicial power, into a supremacy over state judicial power, is in these words: "In all cases affecting ambassa"dors, other publick ministers, and consuls, and those in which "a state shall be a party, the supreme court shall have original ❝ jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law "and fact, with such exceptions, and under such regulations, " as the Congress shall make." The words "original and ap"pellate," both refer to the federal courts, and are used for dividing the federal judicial power previously defined, between these courts; and not for the purpose of extending that power to a supremacy over state judicial power, and thereby defeating its specified limitation. They are a consequence of the legislative power "to constitute tribunals inferior to the supreme court." This inferiority could only be effected by appeals from the inferior federal courts, to the supreme federal court. As Congress could not constitute state courts, these were not the inferior courts to which its legislative power is extended, and therefore the appellate jurisdiction is limited from the inferior courts which Congress could constitute. And as the word original created no new judicial power, so the word appellate gave none. Both the words are expressly restricted to the judicial powers previously bestowed, by repeating that portion of them to which the original jurisdiction of the supreme court is extended, and including the rest by the words "in all other cases before mentioned." No language could more positively have excluded the idea, that this

second section created any additional judicial federal power. And therefore, as the judicial power previously defined and expressly referred to by this second section, does not give to the federal courts any power to try cases in law and equity arising under state constitutions and laws; nor controversies between political departments; nor the least power, original or appellate, over the state courts; the second section can give no such pow. ers, because it is restricted by its reference to the first. The ap. pellate jurisdiction from the inferior federal courts to the supreme federal court, provided for, was to extend both to "law and "fact, with such exccptions and under such regulations, as the "Congress shall make." Could the words "law and fact," have been intended to refer to political controversies between the state and federal governments? What idea would be conveyed by a power to try the constitution, according to law and fact? These appeals were to be tried by such law and fact as Congress might establish, or regulate. Had therefore an appellate jurisdiction from the state courts been given to the supreme federal court, a power in Congress to regulate the law and fact by which they were to be tried, would have comprised a federal legislative power to regulate the proceedings in the state courts themselves. In empowering Congress to regulate these appeals, a power of regulating the modes of proceeding prescribed by state govern ments to state courts, could not have been contemplated, because these are various; and though it was proper that the federal government should regulate the trials in federal courts, both as to law and fact, such a power in relation to state courts, would have produced infinite confusion, provoked litigation, and must have terminated in a national government. But as supremacy means, and appellate implies, dominion, the commentators have said, that this clause invests the supreme federal court with dominion over the state courts.

The constitution is susceptible of three distinct characters, which will shed much light on its construction. It ought to be considered as a compact, an organization of a government limited by the compact, and as a law in relation to individuals. Its essential stipulation as a compact, is the division of power between the state and federal governments. This feature is impressed

it in the strongest lines, by the guarantee of a republican upon form of government to every state, and the reservation of undelegated powers. Can a government be called republican, or even be any government, if its powers may be taken away by another governmnet, or if it is responsible, not to the people, but to a few judges, who are themselves responsible to another government? The argument used in the convention, now again advanced, that the states are subordinate corporations, is refuted by the constitution itself in its guarantee and reservation. Who are the guardians of the compact, the guarantee, and the reservation; the people of each state, or the supreme federal court? Is this court a state. 2 republican form of government for every state, and the receptacle of the reservation? Even a criminal is to be tried by his peers. Suppose the guarantee to convey a power, instead of imposing a duty, the state forms of government fall under the jurisdiction of the United States, and cannot be regulated by a jurisdiction to try suits in law and equity. If the guarantee is only a duty, the state governments, to be republican, must be regulated by the people of each state. How can they be republican, if they may be tried, their laws and judgments annulled, and their powers abridged, by a court, which is neither their peer, their master, nor their guarantee? To abridge the powers of state governments, is equivalent to the suppression of state legislatures. The constitution, in accordance with its character as a compact, composes a jury consisting of three-fourths of the contracting parties, for its own trial, because they were compeers; and neither subjected itself as a compact, nor these compeers and mutual guarantees, to the power of a few men only enabled to try cases in law and equity.

By organizing a federal government to execute, the constitution did not intend to alter the compact. Its organick, was intended to be subservient to its contracting character, and not to be exalted above it. The departments and officers of the federal government were a skeleton, intended as the residence of one soul of the compact, and the departments and officers of the state governments were considered as the residence of the other soul. The federal soul might have been infused into a difierent piece of mechanism. I have therefore objected to Mr. Madi

son's idea, that the house of representatives, one part of the mechanism or skeleton, contrived as a receptacle for the principles of the compact, can alter those principles on account of the mode in which this limb is moulded. The president, senate, and house of representatives, all limbs of a federal mechanism, are somewhat formed after monarchical, aristocratical, and republican models, but this does not alter the principles of the compact, nor change the soul of the skeleton from federal to national, any more than the mode of making the presidential limb, can make our government a monarchy.

The third article of the constitution is both organick and legal, Organick, in establishing a federal judiciary; legal, in creating several new individual legal rights; but its legal character, to be discerned in this and other articles, is addressed to all indivi duals, and of course to all tribunals. The mechanism of a su preme and inferior courts, does no more create a supreme na tional judicial power, than the mechanism of Congress can create a supreme national legislative power. None of these wheels or pullies were intended to destroy the state governments, or their republican forms, or the reservation by which only life is infused into those forms. Hence the mechanism of the federal courts into supreme and inferior, was only intended as an auxiliary to wards enforcing the legal character of the constitution, and not as an instrument for altering its organick, or its contracting cha racters. The constitution, as a law, would produce cases in law and equity. To such cases only, and not to the principles of the compact, nor to the mechanism of our system, the judicial power of the United States is extended. The state courts may also try cases in law and equity, but this gives them no power to alter the mechanism or principles of constitutions, or to deter mine the controversies of political departments. Authorities might be cited in great number, to prove that such powers have never been considered as annexed to a jurisdiction in cases of law and equity, but only a federal and state construction is adduced. Congress have given to the courts of Columbia a power to try all cases in law and equity. Do these words convey a power to regulate the political departments or principles by which the district is governed? The states gave to the federal