2. It is further contended on the other side, that this Court has no jurisdiction of the present case, because the writ of error presents no question ari lutions of the Legislature of that State, proposing an amendment to the constitution of the United States, by the appointment of an impartial tribunal to decide disputes between the State and federal judiciary, have had the same under their consideration, and are of opinion that a tribunal is already provided by the Constitution of the United States, to wit: The Supreme Court, more eminently qualified from their habits and duties, from the mode of their selection, and from the tenure of their offices, to decide the disputes aforesaid, in an enlightened and impartial manner, than any other tribunal which could be created. The members of the Supreme Court are selected from those in the United States who are most celebrated for virtue and legal learning, not at the will of a single individual, but by the concurrent wishes of the President and Senate of the United States; they will, therefore, have no local prejudices and partialities. The duties they have to perform lead them necessarily to the most enlarged and accurate acquaintance with the jurisdiction of the federal, and several State Courts, together with the admirable symmetry of our Government. The tenure of their offices enables them to pronounce the sound and correct opinions they may have formed, without fear, favour, or partiality. The amendment to the constitution proposed by Pennsylvania, seems to be founded upon the idea that the federal judiciary will, from a lust of power, enlarge their jurisdiction, to the total annihilation of the jurisdiction of the State Courts; that they will exercise their will instead of the law and the constitution. This argument, if it proves any thing, would operate more strongly against the tribunal proposed to be created, which promises so little, than against the Supreme. Court, which, for the reasons given before, have every thing connected with their appointment, calculated to insure confidence. What security have we, were the proposed amendment adopted, that this tribunal would not substitute their will 1821. Cohens V. Virginia. 1821. Cohens Virginia. sing under the constitution or laws of the United States. And to show this, it is said that the record speaks only of the validity of the act of Congress, and their pleasure in place of the law? The judiciary are the weakest of the three departments of government, and least dangerous to the political rights of the constitution. They hold neither the purse nor the sword; and even to enforce their own judgments and decrees, must ultimately depend upon the executive arm. Should the federal judiciary, however, unmindful of their weakness, unmindful of the duty which they owe to themselves and their country, become corrupt, and transcend the limits of their jurisdiction, would the proposed amendment oppose even a probable barrier to such an improbable state of things? The creation of a tribunal such as is proposed by Pennsylvania, so far as we are enabled to form an idea of it, from the description given in the resolutions of the legislature of that State, would, in the opinion of your Committee, tend rather to invite, than prevent a collision between the federal and State Courts. It might also become, in process of time, a serious and dangerous embarrassment to the operations of the general Government. Resolved, therefore, that the legislature of this State do disapprove of the amendment to the constitution of the United States proposed by the legislature of Pennsylvania. Resolved, also, that his excellency the Governor be, and is hereby requested to transmit forthwith, a copy of the foregoing preamble and resolutions to each of the Senators and Representatives of this State, in Congress, and to the executives of the several States in the Union, and request that the same be laid before the legislatures thereof." Extract from the Journal of the House of Delegates of the Commonwealth of Virginia: "Tuesday, January 23, 1810. The House, according to the order of the day, resolved itself into a committee of the whole house on the state of the Commonwealth, and after some time spent therein, Mr. Speaker resumed the chair, and and nobody denies its validity, and therefore no question arises under an act of Congress. But the words of the judiciary act are pursued by this writ of error, as they always have been in other cases. It is the validity of the act of Congress, and the validity of the act of Virginia, as compared with it, which are drawn into question. The Court below decided against the first, and in favour of the last, to the full extent of the case. The validity of the act of Congress, means the effect attributed to it by the defendant who sets it up as a defence against so much of the act of the State as inflicts a penalty upon him for doing what the act of Congress authorizes. The defendant relies upon the act of Congress, as creating an exception in favour of his case, out of the act of Virginia. He says it is valid, or available, or efficacious to create such an exception. That was the question which the record shows was before the Court below; and the Court decided that it was not so valid, or available, or efficacious. Whether it is so or not, is the question which the writ of error presents for inquiry; and it is such a question as the Mr. Robert Stanard reported that the committee had, according to order, had under consideration the preamble and resolutions of the select committee to whom were referred that part of the Governor's communication which relates to the amendment proposed to the Constitution of the United States, by the legislature of Pennsylvania, had gone through the same, and directed him to report them to the House without amendment; which he handed in at the clerk's table, and the question being put on agreeing to the said preamble and resolutions, they were agreed to by the House unanimously. 1821. Cohens V. Virginia. 1821. Cohens V. Virginia. appellate power of this Court can deal with. But the question on this motion to dismiss the writ of error, is not whether the act of Congress is valid as against the act of Virginia; but whether that question is presented by the record, so that this Court can determine it, after it has concluded to entertain the writ of error. It is the claim of a right, privilege, or exemption under the statute of the United States, which gives the jurisdiction." The decision upon that claim, as it appears upon the record, is the exercise of the jurisdiction. That the claim to exemption appears upon the record, cannot be denied in this case more than any other. The claim may even be an absurd one: but this Court cannot be called upon, on a motion to dismiss the writ of error, to condemn it as such. All argument upon the sufficiency of the claim is premature, so long as it is, sub judice, whether the Court can examine its sufficiency. But it is said, that the question does not arise under any statute of the United States, but under a mere by-law of the City of Washington; and that the case involves nothing but that by-law: and it is said to be absurd to call a by-law of the City of Washington a law of the United States. It is immaterial whether it be so or not. The by-law is the execution of a power given by a law of the United States. The effect of the execution of that power, involves the effect of the law; and although the execution of the power is not a law of the United a Wheat. Dig. Dec. tit. Const. Law, V. (B.) 186. States, yet that which gives the power is. The question, therefore, is, not what is the mere effect of the execution of the power in the abstract, or unconnected with the law which gives it, but what is the effect of the power by force of the law which gives it and that question compels you to mount up to the constitution itself. The course of the inquiry will then be, (1.) What has the party done? and what is the immediate authority under which he did it? (2.) What is the nature and extent of that authority? what its qualities under the law which gave it, and the constitution under which that law was passed? If an officer of the United States does any act for which a State Court calls him to account, and he relies in his defence upon the authority, real or supposed, of a statute of Congress, his act is not a law of the United States; but his defence is referred to the effect and validity of a law of the United States, and that is again referred to the constitution, which is the paramount law. The last act done need not be a law of the United States. It is sufficient, if it is attempted to be justified, or its consequences maintained, under a law of the United States, which it is alleged gave to it a protecting power in the case before the Court. It is, however, asserted, that the constitution gives jurisdiction only in cases arising under it, or the laws, or treaties of the United States; and that this case does not arise under a law of the United States, because the act of Congress now in question is not a law of the United States. An act of the Congress, 1821. Cobens V. Virginia. |