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State. If on that day the States retained jurisdiction of most of the cases enumerated in the third article of the constitution, that jurisdiction must have been left to them by the constitution, and cannot be taken from them by Congress. The power either of a State legislature or a State judiciary, cannot depend on the use of, or neglect to use, a power, by Congress. Such State power is fixed by the constitution; the same to day as to-morrow, however Congress may legislate.

The judicial power of the United States is conferred by the constitution, and Congress cannot add to that power. Congress may distribute the federal judicial power among the federal Courts, so far as the distribution has not been made by the constitution. If the constitution does not confer on this Court, or on the federal judiciary, the power sought to be exercised, it is in vain that the act of Congress purports to confer it. And where the constitution confers original jurisdiction, (as in cases where a State is a party,) Congress cannot change it into appellate jurisdiction. The extent of the judicial power of the United States being fixed by the constitution, it cannot be made exclusive or concurrent, at the will of Congress. They cannot decide whether it is exclusive of the State Courts or not; for that is a judicial question, arising under the constitution. If the judicial power of the United States is exclusive, Congress cannot communicate a part of it to the State Courts, giving to the federal Courts appellate jurisdiction over them. If by the constitution the State judiciary has concurrent jurisdiction,

Congress cannot grant to the federal Courts an appellate jurisdiction over the exercise of such concurrent power. The state judiciary cannot have independent or subordinate power, at the will and pleasure of Congress.

The State judiciary have concurrent jurisdiction, by the constitution, over all the cases enumerated in the third article of the constitution, except, 1. Prosecutions for violating federal laws; 2. Cases of admiralty and maritime jurisdiction; and, 3. Cases affecting ambassadors, other public ministers, and consuls. No government can execute the criminal laws of another government. The States have parted with exterior sovereignty. As they cannot make treaties, perhaps they have not jurisdiction in the case of ministers sent to the federal government; as they cannot make war and peace, regulate commerce, define and punish piracies and offences on the high seas, and against the law of nations, or make rules concerning captures on the water, perhaps they have no admiralty jurisdiction. The jurisdiction of the State Courts over civil causes, arising under the constitution, laws, and treaties, seems to me to be unquestionable. The State judges are sworn to support the constitution, which declares them bound by the constitution, laws, and treaties. This was useless, unless they have jurisdiction of causes arising under the constitution, laws, and treaties, which are equally supreme law to the State Courts as to the federal Courts. The State judges are bound by oath to obey the constitutional acts of Congress; but they are not so bound to obey the decisions of

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the federal Courts: the constitution and laws of the United States are supreme; but the several branches of the government of the United States have no supremacy over the corresponding branches of the State governments.

The jurisdiction of the State Courts is admitted by Congress, in the judiciary act: for, by an odious provision therein, which does not seem to be impartial, the decision of the State Court, if given in favour of him who claims under federal law, is final and conclusive. Thus, the State Courts have acknowledged jurisdiction; and if that jurisdiction is constitutional, Congress cannot control it.

Congress cannot authorize the Supreme Court to exercise appellate jurisdiction over the decisions of the State Courts, unless they have legislative power over those Courts. Can Congress give an appeal from a federal District Court to a State Court of appeal? I presume it will be admitted that they And why can they not? Because they have no power over the State Court. And if they cannot give an appeal to that Court, they cannot give an appeal from that Court.

cannot.

The constitution provides, that the judicial power of the United States shall "extend to" certain enumerated cases. These words signify plainly, that the federal Courts shall have jurisdiction in those cases; but this does not imply exclusive jurisdiction, except in those cases where the jurisdiction of the State Courts would be contrary to the necessary effect of the provisions of the constitution. Civil

suits, arising under the laws of the United States, may be brought and finally determined in the Courts of foreign nations; and, consequently, may be brought and finally determined in the State Courts.

The judiciary of every government must judge of its own jurisdiction. The federal judiciary and the State judiciary may each determine that it has, or that it has not, jurisdiction of the case brought before it but neither can withdraw a case from the jurisdiction of the other. The question, whether a State Court has jurisdiction or not, is a judicial question, to be settled by the State judiciary, and not by an act of Congress, nor by the judgment of the Supreme Court of the United States. Shall the States be denied the power of judging of their own laws? As their legislation is subject to no negative, so their judgment is subject to no appeal. Sovereignty consists essentially in the power to legislate, judge of, and execute laws. The States are as properly sovereign now as they were under the confederacy; and we have their united declaration that they then, individually, retained their sovereignty, freedom, and independence. The constitution recognizes the sovereignty of the States: for it admits, that treason may be committed against them. They would not be entitled to the appellation of "States" if they were not sovereign.

Although the State Courts should maintain a concurrent jurisdiction with the federal Courts, yet foreigners would have what, before the adoption of the constitution they had not, a choice of tribunals, before which to bring their actions; and the State

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judges are now bound by treaties as supreme law. If an alien plaintiff sues in the State Courts, he ought to be bound by their decision; and if an alien Virginia, is sued in a State Court, he ought to be bound by the decision of the State in which he resides or sojourns, which protects him, to which he owes a temporary allegiance, and to whose laws he should yield obedience. The people could not have intended to give to strangers a double chance to recover, while citizens should be held bound by the first decision; that the citizen should be bound by the judgment of the State alone, while the stranger should not be bound but by the judgment of the State, and also of the United States. A statute contrary to reason, is void. An act of Congress which should violate the principles of natural justice, should also be deemed void. It is worthy of consideration, whether this clause in the judiciary act, which grants an appeal to one party, and denies it to the other, is not void, as being partial and unjust. If, in any case brought before them, the State Courts shall not have jurisdiction, the defendant may plead to the jurisdiction, and the Supreme Court of the State will finally decide the point. If this is not a sufficient security for justice, as I apprehend it is, an amendment to the constitution may provide another remedy. If the defendant submits to the jurisdiction of the State Court, and takes a chance of a fair trial, it is reasonable that he should be bound by the result.

As I deny to this Court authority to remove, by writ of error, a cause from a State Court, so I like