OPINION OF JUDGE CABELL. This was, originally, an ejectment brought by David Hunter against Denny Fairfax, in the Winchester district court, for a tract of land lying in that part of Virginia commonly called the Northern Neck. In that court, the parties, by their counsel, agreed a case which it is deemed unnecessary to set forth at large. It will be sufficient to observe, that, upon the case agreed, it was contended, on the part of those claiming under Lord Fairfax, that Lord Fairfax being a citizen of this commonwealth, and seized in absolute fee-simple of the lands in controversy, died in Dec. 1781, having devised his lands in the Northern Neck, including those in controversy, to Denny Fairfax, who, it was admitted, was born in England, in the year 1750, and had never become a citizen of Virginia, or of any of the United States. That the said Denny Fairfax was capable of taking and holding the lands devised to him. until divested by an inquest of office or some equivalent act; and that no such act had taken place prior to the treaty of peace made and concluded between Great Britain and the United States of America, which, it was further alleged, protected his property and released any supposed right of the commonwealth to the lands in question. On the part of Hunter it was contended, that Denny Fairfax, being at the time of the devise aforesaid, and ever after, an alien, was incapable of holding lands in this commonwealth; that admitting an inquest of office to have been necessary under the general laws as applying to ordinary cases, the several acts of assembly stated in the case agreed, respecting the mode of acquiring titles to certain lands in the Northern Neck, were equivalent thereto and supplied the place thereof in relation to such lands, and justified the grant thereof, made by the common. wealth to Hunter on the 30th of April, 1789. The district court of Winchester, on the 24th of April, 1794, gave judgment upon the case agreed, for Fairfax, whereupon, Hunter appealed to this court, and Denny Fairfax having died, the appeal was revived against Philip Martin, his heir at law and de. visee. The cause was argued in May, 1796, and re-argued in October, 1809; and judgment was rendered on the 23d April, 1810, reversing the judgment of the district court. The entry on the order book then proceeds:" And this court pro ceeding to give such judgment as the said district court ought to have given, is of opinion, that the law arising on the case agreed in this cause, is for the appellant;" and judgment was accordingly en tered for him.-From Mr. Mun ford's report of this cause, how ever, it appears that the two | Judges who decided it were divid ed in opinion as to the effect of the several acts of assembly, and the treaty of peace set forth in the case agreed, which division of the court would have amounted to an affirmance of the judgment of the district court. But the court adverting to the act of compromise of the year 1796 (see sess-acts of 1796, and appendix to the 2d vol. Rev. Code, p. 71.) between the commonwealth, and the purchas ers under Denny Fairfax, by which the purchasers, in conside ration of a release by the common wealth of its claim to " any land specifically appropriated by Lord Fairfax to his own use, either by deed or actual survey," agreed to release to the Commonwealth "all claim to lands supposed to lie within the Northern Neck, which were waste and unappropriated at the time of the death of Lord Fairfax:" and it being admitted by the case agreed, that the lands in question were of this last description, and it appearing moreover that the purchasers had actually availed themselves of the said compromise, by reversing two judgments in favour of the commonwealth, and both Judges concurring in opinion, on opinion, on the ground of the compromise; the judgment of the district court was reversed, and judgment was entered for the appellant Hunter. To this judgment, Fairfax's de visee obtained a writ of error from the supreme court of the United States, under the 25th. section of the act of Congress, passed the 24th Sept. 1789, (1st vol. Laws of the U. S. p. 63) which declares "That a final judgment or decree in any suit, in the highest court of law or equity of a state, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or, where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the constitution, treaties or laws of the U. S. and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party under such clause of the said constitution, treaty, statute, or commission, may be reexamined and reversed or affirmed in the supreme court of the United States upon a writ of error, the citation being signed by the chief justice, or judge, or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the supreme court of the United States, in the same manner and under the same regulations; and the writ shall have the same effect, as if the judgment or decree complained of, had been rendered or passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the supreme court, instead of remanding the cause for a final decision as before provided, may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions or authorities in dişpute." The record having been carried by this writ of error into the supreme court of the United States, that court reversed the judgment of this court, and affirmed that of the district court of Winchester, and ordered the cause to be remanded to this court "with instructions to enter judgment for the appellant Philip Martin." By the mandate directed to this court, and reciting the judgment of the supreme court of the United States, the judges of this court are "commanded that such proceedings be had in the said cause, as, according to right and justice, and the laws of the United States, and agreeably to said judgment and instructions of said supreme court ought to be had." When the mandate was presented to the court, doubts were suggested whether the case comes within the intent and meaning of the provisions of the act of Congress aforesaid, and admitting it does come within them, whether the provisions themselves are authorised by the constitution of the United States. The suggestion of these doubts was followed by an argument from the bar, elaborate, able, and profound. According to the view which I have taken of the subject, however, I do not deem it necessary to give an opinion on all the points presented in the argu ment. I shall not inquire whether this is such a case as is contemplated by the act of Congress; I shall proceed upon the admission that it is so; that it is the case of a final judgment, in the highest court of a state, in which a decision in the suit could be had; that the record shows that the construction of a treaty has been directly drawn in question, and that the decision has been against the title set up or claimed by one of the parties, under that treaty. In such a case, has the Congress of the United States a right, under the federal had previously rendered. I am deeply sensible of the extreme delicacy and importance of this question. I have diligently ex amined it according to my best ability, uninfluenced, I trust, by any other feeling than an earnest desire to ascertain and give to the constitution, its just construction, being as little anxious for the abridgment of the federal, as for the extension of the state jurisdic tion. My investigations have ter minated in the conviction, that the constitution of the United States does not warrant the power which the act of Congress purports to confer on the federal judiciary. It was justly observed, in the argument, that our system of government is sui generis, unlike any other that now exists, or that has ever existed.—Resting on certain great principles which we contend to be fundamental, immutable, and of paramount obligation, it will not be found to want any of the powers of legitimate govern. ment; the distribution and modifi cation of those powers have no parallel. To the federal govern. ment are confided certain powers, specially enumerated, and prin. cipally affecting our foreign rela tions, and the general interests of the nation These powers are li mited, not only by their special enumeration, but by the positive declaration that, all powers not enumerated, or not prohibited to the states, are reserved to the states, or to the people. This de constitution, to confer on the su- marcation of power is not vain and preme court of the United States, ineffectual. The free exercise, by a power to re-examine, by way of the states, of the powers reserved appeal or writ of error, the decito them, is as much sanctioned sion of the state court; to affirm or and guarded by the constitution reverse that decision; and in case of the United States, as in the free of reversal, to command the state exercise, by the federal govern court to enter and execute a judgment, of the powers delegated to ment different from that which it that government. If either be im are nevertheless separate from, and independent of, each other. From this position, believed to be incontrovertible, it necessarily results that each government must act by its own organs: from no other can it expect, command, or enforce obedience, even as to objects coming within the range of its powers. paired, the system is deranged. | tween citizens of the same state, The two governments, therefore, not involving questions concernpossessing each its portion of the ing the construction of the constidivided sovereignty, although em- tution of the United States, nor bracing the same territory, and concerning the validity or conoperating on the same persons and struction of any statute, treaty, frequently on the same subjects, commission, or authority of, or under the general government, nor concerning the validity of any statute, commission, or authority of, or under, any state government; such encroachment of jurisdiction could neither be prevented nor redressed by the state government, or any of its departments, by any procedure acting on the federal courts. I can perceive nothing in the constitution which gives to the federal courts any stronger claim to prevent or redress, by any procedure acting on the state courts, an equally obvious encroachment on the federal jurisdiction.-The constitution of the United States contemplates the independence of both governments, and regards the residuary sovereignty of the states, as not less inviolable than the delegated sovereignty of the United States. It must have been foreseen that controversies would sometimes arise as to the boundaries of the two jurisdictions. Yet the constitution has provided no umpire, has erected no tribunal by which they shall be settled.-The omission proceeded, proceeded, probably, from the belief, that such a tribunal would produce evils greater than those of the occasional collisions which it would be designed to remedy. Be this as it may, to give to the general government or any of its departments, a direct and controlling operation upon the state departments as such, would be to change at once, the whole character of our system. The independence of the state authorities would be extinguished, and a superior, unknown to the constitu But whilst, on the one hand, neither government is left dependent upon the other, for the exercise of its proper powers, SO, OD the other hand, neither government, nor any of its departments, can act compulsively, on the other or any of its organs in their political or official capacities; with the single exception, perhaps, of the case where a state may be sued. In using the term compulsive action, I do not mean to restrain it to the idea of actual force, but to extend it to any action imposing an obligation to obey. The present government of the United States, grew out of the weakness and inefficiency of the confederation, and was intended to remedy its evils. Instead of a government of requisition, we have a government of power. But how does that power operate? On individuals, in their individual capacities. No one presumes to contend, that the state governments can operate compulsively on the general government or any of its departments, even in cases of unquestionable encroachment on state authority; as, for example, if the federal court should entertain jurisdiction, in personal actions, be tion, would be created, which | would, sooner or later, terminate in an entire consolidation of the states into one complete national sovereignty. If these principles be correct; if the two governments and their departments are separate, distinct from, and independent of, each other, and neither can act directly and compulsively upon the other, there is an end of the question now before the court; for the question is, in fact, whether the federal court can act directly on this court, by obliging it to enter a judgment not its own. But this principle of the separation and independence of the departments of the two governments, deserve farther developement. The writer commonly called the Federalist, and who has ably elucidated many of the principles of our government, lays down the position, that "the national and state systems are to be regarded as one whole." (Letter 82. p. 245, 246.) From this position, both he and the counsel for the appellee, have inferred the right of appeal from the state to the federal courts. The position it self, however, is assumed without proof or illustration, nor is the sense in which it is to be understood distinctly unfolded. There is only one sense in which it is believed to be true. The national and state governments are the depositories of all the powers known to our system of government. In this view, they may, perhaps, be considered as one whole. But this proves nothing, and leaves us where it found us. We must resort to some other source to ascertain the distribution of those powers, and the relation which the parts of this whole sustain towards each other. To justify the inference that has been deduced, it must first be proved that the parts are connected, and that the one is superior to, and has a direct, commanding, and controlling power over the other which is the very point in con. troversy. It may farther be ob served, that the courts of the U. States derive their powers from, and owe responsibility to, the people of the U. States; whereas the state courts derive their power from, and owe responsibility to, the people of their respective states. They emanate from differ ent sources, and have no common or connecting head. I can perceive no force in the argument attempted to be drawn from the sixth article of the con stitution of the United States, which declares that the constitu tion and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made un der the authority of the United States, shall be the supreme law of the land; and the Judges in every state shall be bound there. by. From this obligation no er emption will be claimed for the state courts. But it inposes a subjection to the constitution, and to the laws and treaties made un der its authority; not a subjection to the federal courts. What that constitution is, what those laws and treaties are, must, in cases coming before the state courts, be decided by the state Judges, according to their own judgments and upon their own responsibility.-To the opinions of the federal courts they will always pay the respect which is due to the opinions of other learned and upright Judges, and more especially when it is considered, that all the cases of federal cognizance, may, as I shall |