of the United States. Were state courts contemplated as constituting any portion of the judicial power of the United States? If not, then as the third article throughout refers to "the judicial "power of the United States" only, it is not by a single word extended to the state judiciaries, though the gentlemen in favour of a national government may think that this ought to have been the case. The article proceeds to demonstrate its meaning, by declaring that these supreme and inferior judges, invested with the judicial power of the United States, "both of the supreme "and inferior courts, shall hold their oflices during good beha"viour, and receive salaries not to be diminished." All the judges in relation to whom Congress could legislate, were to be reached by these provisions; but they did not include state judges, whose tenures and salaries Congress could not fix. Congress was not invested with any legislative power over stato courts, since their legislative power is confined to judges embra red by these two federal provisions. The supremacy expressed tan therefore refer only to the inferior courts or judges described in the same section, as reached by the two provisions annexed to their offices, and not to stato courts, or judges, to whom these provisions did not extend. The projects for a national form of government in the convention, confirm the construction dictated by the words. One of these contemplated an abolition of the state governments; the other, an adoption of state legislatures, executives, and judiciaries, as subordinate parts of a national government. The latter contemplated a supremacy of national departments, legislativo, executive, and judicial, over the cor respondent state departments. Instead of this proposed national government, the constitution established a federal government, invested, not with supreme, but with limited powers; and the consolidating words used to describe both projects, were rejected in the deed. There would have been a manifest absurdity in coupling a supreme national judiciary with a legislature not national, as it would not have corresponded, either with the national government proposed, or the federal government adopted. Such a supreme judicial power, might have extended or diminished state powers, against the will of Congress and the president, and these powers would have lost the protection, designed

by the Virginia plan for a national government, to be derived

By an exclusive judicial powers, would have been Therefore, when the pro

from its proposed general supremacy. supremacy, federal, as well as state made subordinate to judicial power. jects for a national form of government were given up, the su premacy contemplated by them, for national legislative, executive, and judicial departments, was relinquished, and no supremacy over the powers reserved to the states, was incongruously given to a judicial department, exclusively of the other two.

The perseverance of the gentlemen in favour of a national government, proves that the subject was thoroughly considered; and the solemn preference of the federal form, demonstrates that no construction, by which that preference will be frustrated, can be just. Its basis was state sovereignty; compatible with a fe deral limited government, but incompatible with a supreme national government. Hence state sovereignty was denied by the gentlemen who proposed a national government. This sove reignty is the foundation of all the powers reserved to the states. Unless they are sustained by it, they are baseless. State legisla tive, executive, and judicial powers, must all or none flow from this source. All are necessary to sustain the state republican governments. Subject either to a master, and the others become subject to the same master. If the state judicial power, as flowing from state sovereignty, is not independent, state-legislative and executive power, cannot be independent, because all rest upon. the same foundation; and because, if a supreme federal judiciary can control state courts, it can also control state legislatures and executives. Thus a federal form of government would be rejected, though it was established, and a national government would be established, though it was rejected.

The second section of the article we are considering, begins with the following words: "The judicial power shall extend." The word extend, far from meaning supremacy, implies the reverse. The distinction is expressed in the first article. The legislation of Congress is not extended to the ten miles square, but made supreme over that district, in order to abolish a state concurrency of power within it. The powers of Congress are extended to specified objects, but as these extensions did not im

ply supremacy, the powers bestowed are concurrent, except when attended by positive prohibitions upon the states. As the word exclusive is used when exclusiveness was intended, and as the extension of federal legislative power to specified objects, was not considered as conveying a supreme power, but as establishing concurrent powers in the state and federal governments, flowing. to the states from their original sovereignties, and to Congress from delegations; so an extension of judicial power by delegations also, only created a concurrent state and federal jurisdiction in the cases, as to which it is not prohibited, arising under the constitution. No legislative, executive, or judicial power, is given to the states, for enabling them to exercise their reserved rights, because they were derived from their anterior sovereignty. From this source, and the special delegations, arose many cases of a concurrency in state and federal legislation, such as that of taxation, and this concurrency would have extended to all the delegated powers, except for the prohibitions of the tenth section of the first article. Those in relation to war, troops, and imports and exports, would have been useless, except that the states, in virtue of their sovereignty, would have retained an absolute power as to these objects, had no such prohibitions been inserted in the constitution. They might have declared war, raised armies, and imposed duties, though Congress might have done it also, upon the same ground that both the state and federal governments may tax. Now if an extension of some sovereign powers of the states to Congress, did not, without a special prohibition, take from the states their right to exercise the same powers, the constitution itself furnishes us with a construction of the judicial article. As the extension of legislative federal power to taxation, did not destroy the sovereign power of the states to tax, nor invest Congress with a supreme power to annul state laws for that purpose; so the extension of the federal judicial power to cases in law and equity arising under the federal constitution and laws, did not deprive the states of the inherent attribute of sovereignty to dispense justice to their people in these cases, nor expose their decisions in cases of law and equity, to be annulled by the federal judiciary. A concurrency of jurisdiction arose from the extension of judicial federal power, upon

the same principles which produced a concurrency of legislation between the federal and state governments. Original sovereign." ties were not in either case surrendered to a delegated participa tion. It is owing to a concurrency of jurisdiction in the federal and state governments, that the judges of both are required to take an oath to support the constitution; and this concurrency is distinctly admitted by the federal judges, in revising state judgments, and affirming them, if right; whereas, if the state courts had no jurisdiction in cases of law and equity arising under the federal constitution and laws, all their judgments would have been coram non judice, and void. Their jurisdiction is thus admitted, and the only question is, whether Congress can em power the federal court to annul it.

If the concurrent powers of the states were not destroyed by delegations, and if the exclusive or supreme powers of the fede ral government, did not flow from these extensions, but from positive prohibitions; wherever no such prohibitions exist, the sovereign powers of the states remain; and these comprise the right of trying all suits in law and equity whatsoever. The prohibitions are acknowledgments of this position, and even contain a construction of themselves, by which it is vindicated. The prohibition upon the states to engage in war, is void in cases of invasion or imminent danger. In these cases, the sovereignty of the states is absolved from the prohibition, and is not absorbed by the delegated power to declare war. It was not therefore absorbed by a delegated power to try law-suits.

The constitution creates federal legislative, executive, and ju dicial departments; and such departments also are established by state sovereignties. Are these departments concurrent or exclusive rights, or does their extension to the federal government create a supremacy in the departments delegated, over the departments reserved? In either view, we discern the only ima ginable distinction between a federal and a consolidated national government, and behold the identical question which long divid ed the convention. The abolition of these state departments, or their subordination to a national government, was contended for. Our alternative is yet the same under the construction of the constitution subsequently advanced, as it was in the convention.

We must either vindicate the concurrency of powers, except where the positive prohibitions intervene, or accept of the proposed subordination.

The federal judicial power is extended to all "cases in law "and equity arising under this constitution, the laws of the "United States, and treaties." If the judicial power of the states, in virtue of their sovereignty, extends also to these cases, we have only to enquire, whether the constitution invests the federal judicial power with a coercing supremacy over itself, or whether this concurrency establishes a mutual independency, as in the case of federal and state legislative powers. Towards the solution of the question, we must determine, whether the enumeration of federal judicial powers, is not a limitation and restriction, like the enumeration of federal legislative powers. Congress is empowered to "make all laws necessary and proper ❝for carrying into execution the powers vested by the constitu "tion in the government of the United States." The federal judicial power is extended only "to all cases in law and equity arising under the constitution." The analogy between these expressions is considerable. Neither conveys a power to alter the terms of the compact between the states. Both must therefore have been intended as respectively prohibiting the federal legislative and judicial departments from effecting this end, either by laws or judgments. Otherwise Congress, by laws, or the federal courts, by judgments, might alter the constitution. The constitutional mode of amendment subverts this construction. It prohibits us from supposing that a concurrent power of amendment, was lodged in Congress, the supreme court, and threefourths of the states. A power in any department of the federal government to amend, would have defeated the precaution of requiring three-fourths of the states to effect an alteration. If such a power is not given, how can its exercise be prevented, or does our federal system contain no principle of self-preservation? Suppose Congress should alter the constitution by laws, and the federal courts should execute them. Can the usurpation be prevented by any other principle, than a concurrent power in the state and federal governments to construe and preserve the constitution; or are unconstitutional federal laws void,