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granted the State Courts to the federal Government; nor power to revise State decisions.

The power of the House of Lords to hear appeals from the highest Court in Scotland, has been mentioned as a precedent for the exercise of such a power as is claimed for this Court; but the cases are by no means similar: Scotland is consolidated with England under the same executive and legislature; and, therefore, ought to be subject, in the last resort, to the same judicial tribunal. If the States had no executive except the President, and no legislature except Congress, the cases would have some resemblance.

If you correct the errors of the Courts of Virginia, you either make them Courts of the United States, or you make the Supreme Court of the United States a part of the judiciary of Virginia. The United States can only pronounce the judgment of the United States. Virginia alone can pronounce the judgment of Virginia. Consequently, none but a Virginia Court can correct the errors of a Virginia Court.

There is nothing in the constitution that indicates a design to make the State judiciaries subordinate to the judiciary of the United States. The argument that Congress must establish a Supreme Court, and might have omitted to establish inferior Courts, thereby depriving the Supreme Court of its appellate jurisdiction, unless it should be exercised over the State Courts, seems to be without foundation. The judicial power of the United States is vested in the Supreme Court, and inferior Courts; the judges of

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the inferior Courts shall receive a compensation. The possibility of Congress omitting to perform a duty positively enjoined on them, cannot change the constitution, or affect the jurisdiction of the State Courts.

The federal judiciary and State judiciaries possess concurrent power in certain cases; but no authority is conferred on the one to reverse the decisions of the other. The State Courts retain a concurrent authority in cases wherein they had jurisdiction previous to the adoption of the constitution, unless it is taken away by the operation of that instrument. I say a concurrent authority, not a subordinate authority. The power of the judiciary of the United States is either exclusive or concurrent, but not paramount power. And where it is concurrent only, then, whichsoever judiciary gets possession of the case, should proceed to final judgment, from which there should be no appeal. If it shall be established that this Court has appellate jurisdiction over the State Courts in all cases enumerated in the third article of the constitution, a complete consolidation of the States, so far as respects judicial power, is produced ; and it is presumed that it was not the intention of the people to consolidate the judicial systems of the States, with that of the United States. It has been said, that the Courts of the United States can revise the proceedings of the executive and legislative authorities of the States, and, if they are found to be contrary to the constitution, may declare them to be of no legal validity; and that the exercise of the same right over judicial tribunals, is not a higher or

This con

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more dangerous act of sovereign power.
clusion seems to be erroneous. When the federal
Courts declare an act of a State legislature uncon-
stitutional, or an act of the State executive unlawful,
they exercise no higher authority than the State
Courts exercise, who will not only declare an act of
the State legislature, but even an act of Congress,
unconstitutional and void. This only proves that
the federal and State judiciaries have equally autho-
rity to judge of the validity of the acts of the other
branches of both governments, and has no tendency.
whatever to establish the claim set up by federal ju-
dicial power, of supremacy over State judicial power.

This writ of error brings up the judgment render-
ed in a State Court, in a criminal prosecution. Every
government must possess within itself, and indepen-
dently, the power to punish offences against its
laws. It would degrade the State governments, and
devest them of every pretension to sovereignty, to
determine that they cannot punish offences without
their decisions being liable to a re-examination, both
as to law and fact, (if Congress please,) before the
Supreme Court of the United States. The claim set
up
would make the States dependent for the execu-
tion of their criminal codes, upon the federal judici-
ciary. The cases "in which a State shall be a party,"
of which the Supreme Court may take cognizance,
are civil controversies. This seems obvious; be-
cause, to the Supreme Court is granted original ju-
risdiction of them. And it will not be contended

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that the Supreme Court shall have original jurisdiction of prosecutions carried on by a State, against those who violate its laws. If" cases in law and equity, ariVirginia. sing under the laws of the United States," comprehend criminal prosecutions in the State Courts, then every prosecution against a citizen of the State, in which he may claim some exemption under an act of Congress or a treaty, however unfounded the claim, may be re-examined, both as to law and fact, (if Congress please,) in the Supreme Court. And if "controversies" include such prosecutions, then every prosecution against an alien, or the citizen of another State, may be so re-examined, whether he claim such exemption or not. Can this Court bring up a capital case, wherein some exemption under a federal law is claimed by a prisoner in a State Court? Would an appeal lie, (should Congress so direct,) from a jury? It would not, even if the trial was had in a federal Court; for the accused has a right to a trial by a jury in the State and district wherein the crime shall be charged to have been committed. In all cases within the appellate jurisdiction of the Supreme Court, that jurisdiction may extend to the law and the fact. But such jurisdiction, as to the fact, cannot extend to criminal cases; consequently, it was not intended that the appellate jurisdiction should extend to criminal cases; and, therefore, the Supreme Court have no appellate jurisdiction in criminal cases. Can, then, the Court which was a criminal

take jurisdiction in this case,

prosecution, founded on the presentment of a grand

jury? Surely they cannot.

This case was not a qui

tam action, which is regarded as a civil suit." It was, both in form and substance, a criminal prosecution. And it has been declared by a judge of this Court, that "the Courts of the United States are vested with no power to scrutinize into the proceedings of the State Courts, in criminal cases.""

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That which is fixed by the constitution, Congress have no power to change. The jurisdiction of the State Courts is fixed by the constitution. It is not a subject for congressional legislation. The people of Virginia, in adopting the constitution of the United States, had power to diminish the jurisdiction of the State judiciary: but Congress have no power over it; they can neither diminish nor extend it; they can neither take from the State tribunals one cause, or give them one to decide. As they cannot impose on the State Courts any duties, so neither can they take from them any powers. Congress can neither add to or diminish the legislative power, the executive power, or the judicial power of a State, as fixed by the constitution. Congress may pass all laws necessary and proper to execute that power which is vested by the constitution in the judiciary of the United States; but this does not sanction a violation of the authority of the State Courts. None can enlarge or abridge the jurisdiction of the judiciary of Virginia, except the people of Virginia, or the legislature of that State. As was the jurisdiction of the State judiciary on the 4th day of March, 1789, so it stands at this day, unless altered by the

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Virginia.

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