BY
J. M., BUNDY.
WITH  AN HISTORICAL LETTER
By SEiNATOR HOWE, of Wisconsin.
XE~W YORK:
(. iP;. Pttnam & 5,.
1870. 
THE NEW YORK PRINTING COMPANY,
8I, 83, ana 85 Cenire Street,
NEW YORK. 
PREFATORIY.
THE excuse for the republication of this pamphlet is to be
found in the following request, signed by several eminent members of the Wisconsin bar:
MILWAUKEE, October 26, 1869.
J. M. BUNDY, Esq.:
DEAR SIR We understand that the very able argument published by
you in pamphlet form, several years since, upon the general subject of
the appellate jurisdiction of the Supreme Court of the United States
over State Courts, in matters involving rights claimed under the Constitution and laws of the United States, is out of print, and cannot be
obtained. It formed part of an interesting discussion in our State, and
its ability and research ought not to be lost; because, although the immediate occasion for its original publication has passed, yet the general
question, in various phases, will continue for several years, under the recent legislation of Congress for the removal of certain cases from State
to Federal Courts.
We therefore suggest that you would render a great service to the
profession and the public by republishing your argument, and thus
affording the public an opportunity to obtain it.
Very respectfully,
MATT. IHI. CARPENTER,
TIMOTHY O. I-OWE,
S. J. TODD,
N. S. MURPHY,
WINFIELD SMITH,
EMMONS & VAN DYKE,
C. A. IHIAMILTON,
GEORGE COGSWELL,
J. M. BINGHAM,
WALTER S. CARTER,
JAMES G. JENKINS,
D. H. JOHNSON,
GEO. IHI. GOODWIN.
4
I
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ARE WVE A NATION?
The pamphlet referred to was written in the winter of 1859
and in the early spring of 1860, while I was a young lawyer, without clients, in the small interior city of Beloit in
Wisconsin.  It first appeared in the shape of a series of articles
contributed from week to week to the Beloit Journal, which
were intended to influence thoughtful Republicans to withhold
their support from the Calhoun theories of government at that
time popular in the State.  Having at my disposal a very
good collection of the authorities which develop the history of our Government, and having a strong tendency towards the investigation of such subjects, I lived at that time
among my books, and fiom the great men who founded our
Government was enabled to overlook the party exigencies of the
time, and to examine the issues they brought with more calmness
than a successful lawyer or politician could have commanded.
The immediate issue which my argument was intended to
meet was whether, in the choice of a Chief Justice, Wisconsin
would virtually vote to nullify the Fugitive Slave Law, and
to deny the sovereign power of the Union. Those who were
not in the State at that time can form no conception of the
strength of the popular sentiment which then ran in this direction.  In 1S57 this sentiment was so strong that Judge Howe,
then confessedly the foremost Republican leader in the State, was
defeated for the United States Senate, because he would not, by
a non-committal letter, enable the Republican members of the
Legislature to follow their own choice and at the same timnle to
reconcile their constituents to their action.  This happened,
although Judge Howe was one of the earliest and most determined enemies of the Fugitive'Slave Law.  It was not until the
ominous thllreatenings of another phase of'" State Rights" agitation were heard firom the South that this sacrifice of a fearless
and honest statesman  was atoned for by his almost unanimnous
election, in the winter of 1860-61, to the seat he has since held
and honored.
As Senator Howe was the foremost leader of those Wisconsin
Republicans who sustained the national authority, even when
that authority presented itself in its most odious character, I
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ARE WE A NATION.
wrote to him last winter, asking him to give a brief history of
the discussion which called out my humble argument.  I also
intended to rewrite the argument itself, and to eliminate its crudities and imperfections. But the engrossing cares of journalism
have left me no time for such a task, while, until recently, Senator Howe has not been able to find leisure to comply with my
request.
On the receipt of his very kind letter, which is given below,
I determined to reissue the argument just as it was originally
published, and to ask the indulgence of its readers for its many
imperfections. The letter of Judge Howe speaks for itself, and
will explain better than anything I could write why and how it
was that such a State as Wisconsin came so near to the dangerous attitude of actual nullification.  I give this letter without further comment:
GREEN BAY, WISCONSIN, Sept. 26, 1870.
MY DEAR MIAJOR BUNDY:
I am glad to learn, as I do, that you are about to publish a new edition of your excellent essay on the question of State Rights, the first
issue of which came out in 1860. It is true that the special occasion
which called the pamphlet out is long since passed. It is true that
the great debate in which it bore a prominent part is closed, it is
to be hoped, forever. It is true that the peculiar theory of government
which it so ably combated is finally exploded. But, notwithstanding, I
think it well and timely to reproduce your great argument.
The world is agreed upon the propriety of building monuments to
commemorate the birth of great truths.  Why is it not well, also, to
place head-boards by the graves where great errors are buried? No more
specious, and, if judged by its fruits, no more malignant falsehood than
that you assaulted hasbeen buried during this century.   Few, in any
century, have been destroyed at greater cost. It seems almost incredible now that there could have been lawyers, statesmen, patriots, so
recently as ten years ago, who could seriously insist that each State of
our Union had secured to it, in and by the Federal Constitution, the
high prerogative of determining for itself what Federal enactments were
or were not valid.  Historically we know-and we always knew when
we would listen to history-that it was that very prerogative which
5 
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proved so fatal to the States under the Confederation. It was that
very prerogative which it was the leading purpose of the Constitution
to wrest away from the States.
But there was a party in the country of those who did not mean to
surrender that prerogative. They were willing to enter into almost any
sort of league, but they were not willing to submit to a government.
And it must be confessed that it requires the exercise of great magnanimity, or the presence of urgent necessity, to persuade thirteen sovereigns to be resolved into one. But that necessity was upon the
fathers, and their magnanimity was equal to it.
Still, the party which protested against the surrender of that baneful1 State prerogative was very reluctant, after the Constitution was
adopted, to acknowledge that it had been surrendered.  Accordingly,
it has been asserted, more or less explicitly, on several different occasions in our history.
It was avowed with considerable emphasis in Virginia and Kentucky,
as a means of resistance to the obnoxious measures of John Adams'
administration.
It was rather vaguely threatened in New England, as a resort against
the war measures of Mr. Madison's administration.
It was openly proclaimed in South Carolina, as a method of abro:
gating the tariff laws, during General Jackson's administration.
It was urged with much popular zeal in Wisconsin, in opposition to
the Fugitive Slave Law.
It was finally asserted by the authorities of eleven States, in repudiation of all Federal control, under the administration of Mr. Lincoln.
It was then brought to the arbitrament of solemn war-as allknew, if
persisted in, it must sooner or later come.
The result, very fortunately for all the future, was a vindication of
national rights, and a condemnation of State pretences.
The particular occasion which gave rise to your pamphlet was the
discussion which this doctrine of State supremacy underwent in this
State during the years from 1854 to 1860.
Perhaps in no State of the Union was hostility to the Fugitive Slave
code more pronounced or more general than in Wisconsin. That hos tility was not confined to the ranks of any one political party.
In 1854 a fugitive, arrested under the provisions of that code, was
rescued by a mob, and sent out of the country.   Men of all political
parties joined in the rescue.   Subsequently two of the rescuers were
t
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arrested upon complaint for a violation of that law. A writ of Habeas
Corpus was issued and returned before a Democratic Justice of the
Supreme Court.  To the satisfaction of nearly the whole people, and
to the great delight of a large majority, he ordered the alleged culprits
to be discharged, and he pronounced the act to be unconstitutional
and void.
Subsequently the same parties were arrested in the United States District Court for this district, for the same offence. They were tried, convicted, sentenced to imprisonment, and actually imprisoned in pursuance
of the sentence. Application was thereupon made to the Supreme Court
for another writ of Habeas Corpus, which was issued, and upon its return the prisoners were again discharged. The three Judges, two of whom
were Democrats, held that no offence within the provisions of the
Fugitive Slave Act was charged in the indictment upon which the prisoners had been convicted. One of the Judges went further, anid asserted
the ultimate of the State sovereignty theory. He argued that the law
having been pronounced unconstitutional by the Supreme Court of the
State, it was therefore void within the State, regardless of what might
be thought or resolved by the Federal Courts. Even this proposition, as
it seemed to offer the surest protection against an odious act, was
hailed with great satisfaction by the great majority of those who opposed that law. And, although there were many Republicans who did
not believe in the soundness of that political theory, yet there was more
or less talk of incorporating the principles into the creed of Wisconsin
Republicanism.
The judgment of our Supreme Court, in the Habeas Corpus case,
was taken to the Supreme Court of the United States, and there reversed.
Here was open conflict between the highest judicial tribunals of the respective governments. The Supreme Court of the United States held the
imprisonment legal. The Supreme Court of this State held it illegal.
The question as to which of these two judgments should beqr rule in
Wisconsin became one of absorbing interest in the State.
In 1859 the composition of our Supreme Court had been considerably
changed. The former Chief Justice had died, and the present Chief
Justice had been appointed in his place. The term of one Associate
had expired; and the present Judge Paine, who had been of Counsel
for the prisoners in the Habeas Corpus cases, had been elected in his
place.
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The prisoners had been again confined, in pursuance of the judgment
of the Supreme Court of the United States. And to our court, constituted as above, they again applied for a discharge. The application was
denied. But it was understood that one Judge favored the application,
that another opposed it, and that Judge Paine, because of his former relations to the parties, declined to give any opinion in the case. In the
spring of 1860 an election was to take place for a Chief Justice in
place of Chief Justice Dixon, whose appointment would then expire.
The canvass for his successor at once commenced. As he had decided
to follow the judgment of the Federal Court, a very lively interest was
manifested to secure a successor who would concur in issuing the order
for the defiance of the judgment of the Supreme Court of the United
States.
Had that effort succeeded, it is not easy to see how Wisconsin could
bave escaped an open rupture with the National Government; so that
Mr. Lincoln, upon his advent to the Presidency, would have found instead of one, two hostile forces in the field, having not the least sympathy with each other, yet both denying the National authority.
It was during that canvass that your essay made its first appearance.
It was admitted then to be a very candid, dispassionate, and able discussion of the question. It contained the most complete presentation
of the authorities bearing upon the question which had appeared in the
whole course of the debate.
It is not too much to claim that it had an important influence in
producing the happy result of that struggle.
But notwithstanding the masterly array of authorities you presented
on the National side, it is somewhat doubtful if they were then considered with that enlightened candor to which they were entitled.
There is reason to believe that your argument would be read much
more considerately now than it was then. Its soundness has been vindicated by the result of the war. Its truth has been sanctified by the
sacrifice of a great deal of precious life. For these, among other reasons,
I am glad you are to give it again to the public.
Yours sincerely,
TIMOTHY O. HOWE.
8 
STATE RIGTS
STATE RIGHTS
AND THE
APPELLATE JURISDICTION OF THE SUPREME COURT OF
THE UNITED STATES.
TaE questions involved in a consideration of the Appellate
Jurisdiction of the Supreme Court of the United States, are of
a purely legal character.
They arise in the interpretation of the Constitution, and are
to be determined by a reference to the terms of that instrument, aided by all the light which the history of its formation,
and of the contemporaneous and subsequent exposition of,
and practice under it, may afford.
If, from all of these sources of investigation, there arises a
fair construction of the Constitution which is contrary to our
notions of what ought to be, we should still recognize its force
in considering what is, the fundamental law of the land. We
should, as a matter of course,  in endeavoring to ascertain
the powers given by the Constitution, throw aside -all considerations as to the inconveniences, or even as to the dangers,
likely to ensue from  any construction to which we may  be
led in an honest and thorough study of its provisions.
If dangerous powers are given by that instrument, it is certainly matter for deep regret, and the consideration of them
would have been proper for,the Convention which nmade, and for
~~~~~~~ _  
ARE WE A NATION?
the people who ratified it; and we find that both the Convention and the people did consider nearly all of the objections
which have since been made to the Constitution.
Or, if dangers are now apprehended from the exercise, by
any branch of the Government, or by the Government of the
United States collectively, of powers granted by the people in
the Constitution, that instrument provides a peaceful remedy
by amendment.
If the people of the United States have so far degenerated,
that under their authority unendurable oppression is suffered
by any portion of them, and there is no hope of peaceable
redress, there remains the Divine Right of Revolution.
But if we would ascertain what is the meaning of the Constitutioll, we must, as I have said before, look to its terms,
its history, and the expositions and practice of those whose
authority is the most conclusive upon the subject.
As those who have controverted the Appellate Jurisdietion
of the Supreme Court have always sought extraneous support
for their construction of the Constitution in a peculiar theory
of the nature and objects of that instrument, it will be proper
to go into a fuller consideration of the purposes of its
framers than  would otherwise be  neeessary.  A  plain  and
unforced interpretation presents so many difficulties in the
way of a denial of this jurisdiction, that it has always been
deemed necessary, by those who have wished to argue it out
of the Constitution, to go outside of that instrument fig phrases
and theories, apt for their object.
These phrases and theories may have had a limited circulation, and may have been adopted and believed in by a very
small moiety of the American people previously to 1829-30,
but it was not until the treasonable ambition of Mr. Calhoun
had found its fit supporters in the disloyal State government
10
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ARE WE A NATIoxN 
of South Carolina, that the hideous features of inullifcation
were presented to the country in such a manner as to excite
much attention.  The "Virginia resolutions of 1798," of which
so much use has been made, were in no sense the precursors
of nullification, as I shall hereafter show by the very best of
all authorities, that  of the author of them-Mr. Madison.
The bare suspicion of nullification which attached to the
" Hartford  Convention," sufficed to wither the prospects  of
some of the most worthy and ablest public men of New En,gland.  Yet, we know now that this suspicion was a bitter injustice to them.   It was the unenviable distinction of the
"Tory State of the Revolution," uinder the leadership of her
restless and far-seeing, statesman, to fling the gauntlet before
an astonished country, in behalf of doctrines which, at that
time, seemed to men of all parties to be dangerous innovations
upon the established political faith of the American people.
Mr. Calhoun was wise enough to see that in a few years the
control of the General Government would pass from Southern
to Northern statesmen, and he wished to establish in advance
a theory of the Constitution which would enable the Southern
States to defeat the national policy when it should become hostile to slavery. This theory, at whose birth Mr. Webster acted
rather unacceptably as accoucheur, was brought before the
Senate of the United States in 1830, and may be stated thus,
as MAr. Webster stated it, without any demur on the part of
Mr. Calhoun -: 
"1. That the political system under which we live, and under which
Congress is now assembled, is a compact to which the people of the
several States, as separate and sovereign communities, are the parties.
" 2. That these sovereign parties -have a right to judge, each for
itself, of any alleged violation of the Constitution by Congress; and in
case of such violation to choose each for itself its own mode and manner of redress."
*   *        *..
* * * * *
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In these propositions, and in their expositions by Mr. Calhoun, in the course of the debates arising out of them, we find
the originals of all the subsequent judicial decisions, speeches,
and newspaper  articles upon his side of the "State Rights"
question.  The arguments, the theories, the phrases, are all his,
and the question of the Appellate Jurisdiction is involved in
their truth or falsity.
I propose, therefore, to present, as briefly as the slubject will
admit. what I regard as the main features of the government
"established" by the Constitution.  In doing so, I shall follow
the safe rule of interpretation laid down by Mr. Jefferson, in
answer to doubts expressed by the Legislature of Rhode Island
as to the policy of his administration, he being supposed to be
hostile to the Constitution as it was.
Said he: "The Constitution shall be administered  by me
according to the safe and honest meaning of the people at the
time of its adoption, a meaning to be found in the explanations of those who advocated, not of those who opposed it.
These explanations are presented in the publications of the
time."  Of these publications, the "Federalist," written  by
Jay, Madison, and Hlamilton, who had as great a share in
making the Constitution as any, was the chief, and by far the
most influential, in securing the adoption of it by the people.
Looking first, then, to the Constitution itself, we find in the
Preamble a short, succinct, and authoritative declaration of
the great objects which were to be secured by its adoption,
and of the source of the powers to be exercised under  it,
namely, the people of the United States.  The first of these
objects was, "to form a more perfect Union." "More perfect;
than what?  Every one knows to what this refers, and what
must have been in the minds of those who inserted it.
The colonies had made several attempts at union. As early
.       *...     *. 
12 
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as 1643, Massachusetts,  Plymouth, Connecticut, and New
Haven, united for protection from the Indians and Dutch.
This union gave power to three-fourths of the delegates to bind
the whole confederacy, and lasted until 1686.  In 1754 there
was a Congress of Commissioners from New Hampshire, Maisachusetts, Rhode Island, Connecticut, New York, Pennsylvania, and Maryland.  This was called by the "Lords Colmissioiers for Trade and the Plantations," to consider the
defence of America in the case of a war with France, then
impending.   The object of the British government in this
movement was to make treaties with the Indians; the object
of Massachusetts in seconding it was to form articles of union
and confederation with the other colonies, for their general
security in peace as well as in war. This Convention resolved
unanimously that a union of the  colonies was absolutely
necessary for their preservation.   They proposed a plan of
Federal government, consisting of a general council of delegates to be chosen by the Provincial Assemblies, and a Presidenit-General, to be appointed by the crown.   This council
were to have powers of war and peace in respect to the
Indians; to make laws for the government of new territories; to
raise troops, and to make laws, and to levy general duties,
imposts, and taxes for these necessary purposes, subject to the
immediate negative of the President, and the eventual negative
of the King.   This plan was rejected by every provincial
assembly, as well as by the crown, on account of the jealousy
on the part of the crown and the people of each other. Soon
after the first attempt upon chartered privileges by the Stamp
Act, a Congress of delegates from nine colonies assembled at
New York in October, 1765.
This Congress digested a Bill of Rights. It was preparatory
to a more general Congress in September, 1774. The acts and
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claims of the British government alarmed the whole country,
and the twelve colonies united in sending delegates to Philadelphia. This, the first Continental Congress, asserted the
unalienable rights of British freemen, pointed out the system
of violence preparing against those rights, and bound them by
"the ties of honor and country" to renounce commerce with
Great Britain. The action of this Congress received prompt
and universal obedience, and the Union thus formed was continued by a succession of delegates in Congress.   In Mlay,
1775, a Congress again assembled in Philadelphia, and was
clothed with ample discretionary powers.  This Congress prepared the colonies for resistance, published a declaration as to
the causes and necessity of taking up arms, and proceeded at
once to levy and organize an army, to prescribe rules for the
government of their land and naval forces, to contract debts
and emit a paper currency; assuming all the powers of national
sovereignty, until they at last, on the Fourth of July, 1776, took
a separate and equal station among the nations of the earth,
by declaring the United Colonies to be "'free and independent
States."
The general conviction of the importance and value of the
Union appears evident in all the proceedings of Congress; and
as early as the Declaration of Independence it was thought
expedient, for its security and duration. to define with precision
and by a formal instrument the nature of the compact, the
powers of Congress, and Residuary Sovereignty of "the States.
On the 11th of June, Congress undertook to digest and prepare
articles of confederation; but notwithstanding the great perils
of delay, it was not until the 15th of November, 1777, that
Congress could so far unite the discordant interests and prejudices of thirteen distinct communities as to agree to the articles
of confederation. And when these were submitted to the State
14 
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Legislatures, they were declared to be the result of impending
necessity and of a disposition to conciliate; and were agreed to,
not for their intrinsic excellence, but as the best practical approximation thereto.  These articles were merely a digest, and
even a limitation in the shape of a compact, of those undefined
and discretionary powers delegated by the people to the Con-.
gress of 1775, which had been fieely exercised and implicitly
obeyed.
The confederation, from its very nature, was found less and
less adequate to the purposes of a united government, having,
in fact, scarcely any of the attributes of a government; and by
1785 it was a mere nullity, as all mere compacts between
sovereign powers must ever becolme.  Still, it will be seen by
any one who reads the history of this country, that from the
beginning the most advanced minds were looking for a closer
and more intimate Union of  all the colonies; and  it is
pleasing to trace the successive steps of the colonists in this
direction. Each attempt of this kind served as the basis for
another, more comprehensive and effectual.   The colonists
had tried the system of a compact between sovereign States,
and found it wholly deficient in meeting the needs of the
country, and, to use the words of John Jay, in the "Federalist,"
" Still continuing no less attached to Union than enamored of
Liberty, they observed the danger which immediately threatened the former, and more remotely the latter; and being
persuaded that anrple security for both could only be found ir
a national government more wisely friamed, they, as with one
voice, convened the late convention at Philadelphia to take
that important object into consideration.'
The second object was, "to establish justice."  The States
acting individually under the confederation gave undue preference to their own citizens in their legislation and in their
*   * t *  
if.-~ ~ Ac~..j*..*.
15
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courts, and interfered with private contracts; refusing to pay
foreign creditors, and involving the whole country in difficulties, by unjust and injudicious legislation.  With no more
efficient control over themi than was possessed by the Federal Congress, these results were inevitable. This was brought
prominently before the conventions called to consider the
adoption of the Constitution, and ably presented in all of
them.  The remarks of Oliver Ellsworth, one of the leading
minlds of the old Federal Congress, and of the Convention
which framed the Constitution, are a fair specimen of the
views of those who advocated its adoption. Addressing the
Connecticut Convention, he said, among other things: "Union
is necessary to preserve commutative justice between  the
States, &c., &c. A more energetic system is necessary. The
present is merely advisory.  It, has no coercive power.  Without this, government is insufficient,  or rather is no government
at all.  But, it is said, such a power is not necessary.  States
will not do wrong. They need only to be told their duty, and
they will do it.  I ask, sir, what warrant there is for this assertion? "  (Hollister's -Hstory Conn., vol. 2, p. 4:57.)
The  third object was to "ensure domestic tranquillity."
There were many strong reasons why a more vigorous and
national government  was needed to secure this object.   I
shall mention but a few, bearing on the questions to be considered. The controversies between Connecticut and Pennsylvania, between New York and Vermont, Connecticut and
Rhode Island, and in fact between nearly all of the States;
the apportionment of the public debt; laws in violation of private contracts, amounting to aggressions on the rights of the
States injured by them, and a hundred other sources of interininable domestic difficulties-appeared to the framers of the
Constitution to demand something more than a mere league of
*~e   ~@
16
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the States-something more than a mere compact, which the
States might construe as seemed right to each of them.
Oliver Ellsworth fairly expressed the wants of that time,
in his speech before the Connecticut Convention,' which is
given at length in Hollister's History, vol. 2, p. 457.  "We
must unite," said he, "in order to preserve peace among ourselves. If we are divided, what is to hinder wars from breaking out among the States? States, as well as individuals, are
subject to ambition, to avarice, to those jarring passions which
disturb the peace of society.  What is to check them?  If
there is a parental hand over the whole, this and nothing else,
can restrain the unruly conduct of the members."
The next object was "to provide for the common defense."
The infinite difficulties which constantly beset the operations
of the army during the revolution, from the lack of a coercive
power in the confederation compact to enforce its requisitions,
had demonstrated the necessity of a General Government
vested with powers coextensive with all the exigencies of war.
The Congress of the Confederation had, nominally, unlimited
discretion in making requisitions of men and money, in the
government of the army and navy, and in the direction of
their operations, but in the words of Hamilton (Fed. No. 23):
"As their requisitions were made constitutionally binding on
the States,  *  *  the intention evidently was that the United
States should comnmand whatever resources were by them
judged requisite to the common  defense and general welfare.  *  *  The experiment has, however, demonstrated that
this expectation was ill-founded and illusory,  *  *  *  and
that there is an absolute necessity for an entire change in the
first principles of the system."
The next object was to "promote the general welfare."
Says Judge Story, in his commentary upon this passage, ~ 56:
2
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"The idea of a permanent and zealous co-operation of all the
States in any one scheme for the common welfare, is visionary. No scheme could be devised which would not bear unequally uponi some particular section of the country; and
these inequalities could not be, as they now are, ameliorated
and corrected under the General Government, by other corresponding benefits."  The adversaries of the Constitution, who
opposed it because too great powers were given by it to the
Federal Government, were thus answered by Hamilton (Fed.
No. 23):  "The powers are not too extensive for the objects
of Federal administration, or, in other words, for the managemnent of the national interests." The friends of the Constitution saw no other adequate means of " promoting the general
welfare," than in the establishment of a government having
powers as extensive as the interests it was to foster.
The concluding object stated in the Preamble is "to secure
the blessings of liberty to us and our posterity." This was the
grand object, that which with the friends of the Constitution
included all others dear to a people who had suffered, and
dared-as had our fathers in its defence. That no mere compact could secure its blessings to them permanently, was the
expressed conviction of nearly all the more prominent statesmen who had witnessed the weakness and imbecility of the
Confederation. Washington expressed the sense of the best
minds in the country when he wrote, in reply to a gloomy letter
of John Jay's, the following words of wisdom:-" We have
errors to correct. We have probably had too good an opinion
of human nature in forming our Confederation. Experience
has taught us that men will not adopt and carry into execution
measures the best calculated for their own good, without the
intervention of coercive power. I do not conceive we can exist
long as a nation without lodging, somewhere, a power which
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ARE WE A NATION?.
will pervade the whole Union in as energetic a manner as the
authority of the State governments extends over the States."Irving's Life, vol. 4, p. 449.
It was the opinion of the friends of the Constitution, "that,
the vigor of government is essential to the security of liberty;
that, in the contemplation of a sound and well-informed judgment, this interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal
for the rights of the people, than under the forbidding appearance of zeal for the firmness and efficiency of government."
Hiamilton, Fed. No. 1.
These practical men, who had bitter experience of the dangers
to liberty growing out of a Union of the States, which, having
no cohesive power except the sovereign will of each of them,
knew that no Union would secure the liberty of the people, from
foreign foes and domestic factions, unless it was "established
by the people," and though limited in its power, should be
supreme within its sphere of action."
The concluding phrase or predicate of the Preamble, and
the opening or subject, indicate plainly the nature of the Constitution.  "We, the people of the United States, * *  X  do
ordain and establish this Constitution for the United States."
Here we have the source of the power given, namely, the
people of the United States; and the nature of the act which
gives them, namely, an act of sovereignty-the words  "do
ordain and establish," being as authoritative as any which a
sovereign could use.   These words were a mere form until the
people had given them vitality and power —then, they became
the fiat of the sovereign authority, declaring by their ratification
the will of the sovereign people of the United States, which, by
the American philosophy, is the highest of all authorities.
This act, of course, derogated in many respects from the powers
19 
AR WE WA NATION?
of the existing State sovereignties. This fact was frequently
urged by the opponents, and admitted by the friends of the
Constitution when it was before the people for their ratification. It established a supreme law of the land, and a government adequate to its execution and administration.  Within
the sphere in which it was designed to operate, the people
thereby established a government as complete in all its departments and endowed with as plenary powers as any of the State
governments within the limits of the States. What trace is
there of a "compact between the States," in this unmistakable
declaration of the people's will?
If the States had desired to make a compact, they would
certainly have done so, and called it a compact, not a Constitution. The men of those days knew the meaning of words of
a legal or political character, and were as exact in the use of
them as the men of any time or country.
Of all the words in the language, this sacred word Constitution was to their minds surcharged with meaning, and of the
most definite and important character. In it was embodied
their noblest conception of legitimate and orderly Freedom
and their highest ideal of earthly authority, as a direct emanation from the will of the people, through whatever means it
may be expressed. The meaning of the word compact was, too,
quite as well understood by the framers of the Constitution,
as it is now, even with the aid of Alr. Calhoun's metaphysics.
They were tired of the confederation, principally, because it was
a compact, and they wanted in place of this a Constitutional
government, established by the people, for the whole Union.
It seems impossible that any one should study the language of
the Constitution and of the articles of Confederation, and not
see that while the latter may be construed as a compact between the States, the former is declarative of the sovereign
20
'I
I 
-         ~r l i- =at Idir
and executive."
And in the final report of the Convention, submitted by
" George Washington.   President.   By unanimous order of
Says the report: "It is obviously impracticable, in the Fed
eral government of these States, to secure all rights of independent sovereignty to each, and yet provide for the interest and 
safety of all. Individuals entering into society must give up
a share of liberty to preserve the rest."
In further proof that it was because of the inefficiency
of the then existing compact between the States that the
friends of the Constitution desired a government deriving its
powers from the people, and supreme, as to the objects committed by it, to the people-let us see what Hamilton (Fed.
No. 22), said in advocacy of the Constitution:
" It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the
People. Resting on no better foundation than the consent of
the several legislatures, it has been exposed to frequent and
intricate questions concerning the validity of its powers, and
has in some instances given birth to the enormous doctrine of
legislative repeal.  Owing its ratification to a law of a State,
it has been contended that the same authority might repeal
the law by which it was ratified.  However gross a heresy it
may be to maintain that a party to a compact has a right to
revoke that compact, the doctrine itself has had respectable
advocates. The possibility of a question of this nature proves. 
ARE WE A NATION?
the necessity of laying the foundations of our national govern-(
ment deeper than in the mere sanction of delegated authliority.v
The fabric of American empire ought to rest on the solid basis
of the consent of the people. The streams of national power
ought to flow immediately from that pure original fountain of
all legitimate authority."
The only function which the States performed in their governmental capacity, in relation to the Constitution, was of a
purely preparative character.  The powers of the State sovereignties, being entirely derivative, and for purposes and with
jurisdictions bounded by their respective territorial limits, it
was clearly impossible for them to establish a government
transcending these limits.   Accordingly  we find that they
only afforded the machinery by which the people in their
original sovereign capacity could act. They (the State sovereignties) appointed the delegates to the Convention which
framed the Constitution. It was reported to Congress, with a
recommendation "that it might be submitted to a Convention
of delegates, chosen in each State by the people thereof; for their
assent and ratification." In pursuance of this recommrlendation, and through the means provided by the State sovereignties, the people of each of the States assembled in convention
and ratified the proposal made to them through the instrumentality of their servants and agents, and then it became the
supreme law of the land. The government thus established
derived none of its powers from the existing State sovereignties, but proceeded directly from the people, as directly as any
of the State governments, and much more directly than some
of them. The State sovereignties "prepared the way" for
the action of a "greater than they)." They "proposed," but the
people "disposed."
The powers of the former were exhausted when they had
22 
AP.E WE A NAT.ON?
provided a convenient method of ascertaining the popular
will; the latter alone, the people, could create a new government, supreme within the limits assigned by them, over their
State sovereignties, which they retained for State and local
objects, while thus, by the most solemn expression of their wi]ll,
they subordinated them, in sonme respects, to the government
of the Union.
Says Chief Justice Marshall, in his decision of McCulloch
vs. State of Maryland, 4 Wheaton, 316: "It is true they assembled in their several States; and where else should they
have assembled?.No political dreamer was wild enough to
think of breaking down the lines which separate the States,.
and of compounding the American people into one common
mass. Of consequence, when they act, they act in their States.
But the measures they adopt do not on that account cease to be
the measures of the people themselves, or become the measures
of the State governments. From these conventions the Constitution derives its whole authority. The government proceeds
directly from the people, and is "ordained and established"
in the name of the people.  *  *  *  *  The assent of the
States in their sovereign capacity is implied in calling a
convention, and thus submitting that instrument to the people.
But the people were at perfect liberty to accept or reject it;
and their act was final. It required not the affirmance, and
could not be negatived by the State sovereignties.
"It has been said that the people had already surrendered
all their powers to the State sovereignties, and had nothing
more to give. But surely the question whether they may retain and modify the powers granted to government does not
remain to be settled in this country. Much more might the
legitimacy of the General Government be doubted, had it been
created by the States.   The powers delegated to the State
23 
xARE WE A NATION?
sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves.  To
the formation of a league, such as was the Confederation, the
State sovereignties were certainly competent.   But when, "in
order to secure a more perfect union," it was deemed necessary to change their alliance into an effective government,
possessing grave and sovereign powers, the necessity of referring it to the people, and deriving its powers directly from
them, was felt and acknowledged by all.  The government of
the Union, then,       *.*  is practically and truly a government of the people. In form and in substance it emanates
from them. Its powers are granted by them, and are to be
exercised directly on them, and for their benefit."
No apology is necessary for so lengthy an extract from this
celebrated decision. Aside from the high authority which has
always, among.all classes of Americans, attached to the decisions of this greatest of our jurists, whose accession to and
long continuance in his high office was regarded as a national
blessing, second only to that vouchsafed to us in the services
of Washington, there is a clearness and precision of statement
in this extract, as indeed there is in the whole decision, which
must win assent from all unprejudiced minds.
Twenty-five years before this decision was made, and only a
few years after the adoption of the Constitution, while yet
nearly all the framers of it were alive, and influential in direct ing public opinion, Judge Wilson decided against the high
claims of the State of Georgia, together with the majority of
the Court. The decision is of a highly philosophical character,
and I should like to extract the exhaustive discussion of the
word "Sovereignty" contained in it, but can only quote a few
words, pertinent to the immediate question in hand. The case
is reported in Dallas, 419, Feb. Term, 1793.
24 
ARE WE A NATION?
"To the Constitution of the United States, the term' sovereign' is totally unknown.   There is but one place where it
could have been used with propriety.  But, even in that place,
it would not, perhaps, have comnported with the delicacy of
those who'ordained and established' the Constitution. They
might have announced themselves'sovereign people of the
United States;' but serenely conscious of the fact, they avoided
the ostentatious declaration.  * *  As a citizen, I know the
government of that State (Georgia) to be republican, and my
short definition of such a government is, one constructed on this
principle, that the supreme power resides in the people.
"As a judge of this Court I know, and will decide upon the
knowledge, that the citizens of Georgia, when they acted upon
the large scale of the Union, as a part of the'people of the
United States,' did not surrender the supreme power to that
State; but, as to the purposes of the Union, retained it to
thelmselves. As to the purposes of the Union, therefore,
Georgia is not a sovereign State."
I have thus shown from the history and contemporaneous
construction of the Constitution, as well as from the obvious
meaning of the Preamble, the nature and objects of the government established by it.  I have cited from Chief Justice Marshall and Judge Wilson, and will now proceed to cite from
Judge Story, whose fame as a jurist, unimpeachable integrity
of judgment, and great ability as an expounder of the Constitution, entitle whatever he says upon this matter to very great
weight, aside from the authority belonging to his position upon
the Supreme Bench.  Says he, in "Martin vs. Hunter's Lessee."
1 Wheaton, 304:  " The Constitution of the United States
was ordained and established, not by the States in their sovereign capacities, but emphatically, as the Preamble declares, by
"the people of the United States." There can be no doubt,
25 
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that it was competent to the people to invest the General Government with all the powers which they might deemn proper
and necessary; to restrain these powers according to their own
good pleasure, and to give them a paramount and supreme
authority. As little doubt can there be that the people had a
right to prohibit to the States the exercise of any powers which
were, in their judgment, incompatible with the objects of the
general compact, to make the powers of the State governments,
in given cases, subordinate to those of the nation; or to reserve
to themselves those sovereign authorities which they might not
choose to delegate to either."
We have, thus, an emphatic and authoritative exposition,
by two of the greatest jurists of this or any other country, as
to the true meaning and import of the Constitution, in respect
to the nature and powers of the government established by it.
These expositions have been received as correct by the courts
of nearly every State in the Union, by the executive and legislative branches of the General Government, with few exceptions,
and have become incorporated into the belief of a great majority of the American people capable of considering them. I
may say farther, and can prove, that they are accepted by nearly
all of the leaders of both political parties, especially by the leaders of the Republican party,* the Calhoun doctrines having
* NOTE.-Since writing the above, I happened upon the following passage
in a speech of Judge Collamer, in the Senate, delivered March 8th of this
year. These remarks of the Senator were directed to Senator- Toombs of
Georgia, and were in reply to some of the " State Rights" notions of the
brilliant but illogical Georgian.   The extract here given is worthy of careful
attention for its vigor and conciseness of argument. It need hardly be added that Judge Collamer is one of the ablest jurists in the Senate or the
country.
Says the Judge:
"I deny, in the first place, that the States, as several States, entered into
this compact. That, however, is repeated so often that, upon the whole, I do
not know but it is believed. When a State acts, it acts in its organized capa
26
* i
I.
I 
ARE WE A NATION?
lately spread to a considerable extent among the pro-slavery
fanatics of the South.
As Mr. Madison's name has been used somewhat freely, in
connection with nullification doctrines, and as he is an authority of the highest character, and is free, besides, firom any
imputation of "Federalism," his testimony upon this question
is certainly worthy of the careful study of every one. Mr.
Benton's "Thirty Years' View" furnishes it for us, in very
convenient shape. The following extracts are from the 1st volume of that work, p. 355.
The first extracts are from a letter to Mr. Everett, pub
lished in the North American Review of August, 1830:
" It (the Constitution of the United States) was formned by
the States, that is, by the people in each of the States, acting
in their highest sovereign capacity; and formed consequently
by the same authority which fornmed the State Constitutions.
city, by its organs, by its legislature, or by its Executive. There never was
one of the States of this nation that acted in that way in the adoption
of the present Constitution. The people of the United States, meeting in
the conventions of their several States, adopted the United States Constition. The States never acted upon it as States. It would be a paradox that
they should have done so.   How could the legislature of North Carolina,
for instance, invested as it was, at the time, by the people with the power to
levy and collect duties upon imports-how could the State, in its organized
capacity, through that organ, delegate that power to another body? It could
not be done.  It never was done.   It never was attempted to be done.  The
people of the United States had to meet in their several States in their original condition, as people in convention, for these reasons: first, it was more
convenient; next, if the people of North Carolina had invested their legislature with the power to levy and collect duties, the people of North Carolina
alone would have the power to invest that in another body, to wit, Congress.
If you called the whole people of the United States, it would be a different
set of people to take that power away from the one who gave it. No, sir, it
is not true that this is in that sense a confederacy. It is a national Government. I say it is a national Government, operating by its own act on individuals, and enforcing its own laws by its own executive power. The old
Confederation was a failure.  This is a national Government."
There is, as far as I know, no Republican Senator of national reputation
who does not agree with Judge Collamer upon this question.
2 
ARE WE A NATION?
"Being thus derived from the same source as the Constitutions of the States, it has, within each State, the same authority as the Constitution of the State, and is as much a Constitution in the strict sense of the term, within its prescribed sphere,
as the Constitutions of the States within their respective
spheres; but with this obvious and essential difference, that,
being a compact among the States in their highest sovereign
capacity, and constituting the people thereof one people for
certain purposes, it cannot be altered, or annulled at the will
of the States individually, as the constitution of a State may
be, at its individual will.
" Nor is the Government of the United States, created by
the Constitution, less a government, in the strict sense of the
term, within the sphere of its powers, than the governments
created by the Constitutions of the States are, within their
several spheres.  It is, like them, organized into legislative,
executive and  judicial departments.   It operates like them,
directly on persons and things.   And, like them, it has at
command a physical force for executing the powers committed to it.
"Between these different constitutional governments, the
one operating in all the States, the others operating separately in each, with the aggregate powers of government divided
between them, it could not escape attention, that controversies would arise concerning the boundaries of jurisdiction.
"That to have left a final decision, in such cases, to the
States, could not fail to make the Constitution and laws of the
United States different, in different States, was obvious, and
not less obvious, that this diversity of independent decisions
must altogether distract the Government of the Union, and
speedily put an end to the Union itself.
"To have made the decision under the authority of the in
28 
ARE WE A N.ATION?
dividual States co-ordinate, in all cases, with decisions under
the authority of the United States, would unavoidably produce
collisions incompatible with the peace of Society.
" To have referred every clashing decision under the two
authorities, for a final decision, to the States as parties to the
Constitution, would be attended with delays, with inconveniences and expenses, amounting to a prohibition of the expedient.
"To have trusted to negotiation for adjusting disputes between the Government of the United States and the State
governments, as between independent and separate sovereignties, would have lost sight altogether of a Constitution and
Government of the Unioin, and opened a direct road, from a
failure of that resort, to the ultima ratio between nations
wholly independent of and alien to each other. * * * * * *
Although the issue of negotiation might sometimes avoid this
extremity, how often would it happen amoing, so many States,
that an unaccommodating spirit would render that resource
unavailing."
After thus stating, with other powerful reasons, why all
those fancifuil and impracticable theories were rejected in the
Constitution, the letter proceeds to show what the Constitution
does adopt and rely on, " as a security of the rights and
powers of the States," namely:
1. " The responsibility of the Senators and Representatives,
in the Legislature of the United States, to the legislatures and
people of the States; 2. The responsibility of the President;
to the people of the United States; and, 3. The liability ofi
the executive and judicial functionaries of the United States
to impeachment by the representatives of the people of the
States, in one branch of the legislature, and trial by the representatives of the States in the other branch."
29 
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In the letter to Mr. Cabell, of May 31, 1830, he says:
"You will see, in vol. III., page 429, of Mr. Jefferson's correspondence, a letter to W. C. Nicholas, proving that he had
nothing to do with the Kentucky resolutions of 1T99, in which
the word'nullification' is found.   The resolutions of that
State, in 1T98, which were drawn by him, and have been republishea with the proceedings of Virginia, do not contain
this or any equivalent word."
In another letter to Mr. Trist, dated August 25, 1834: "The
letter from Mr. Monroe to Mr. Jefferson, of which you enclose
an extract, is important. I have one from Mr. Monroe, on
the same occasion, more in detail, and not less emphatic in its
anti-nullifying language."
Says Mr. Benton, in concluding this testimony, which he
gives more at large: "These extracts, voluminous as they are,
are far from exhausting the abundant material which these
admirable writings of MIr. Madison contain on the topic of
nullification. They come to us for our admonition and guidance, with the solemnity of a voice from the grave; and I
leave them without comment, to be pondered in the hearts of
his countrymen."
The nature of the subject suggests the name of the heroic
President who met the first overt ebullitions of State Rights
fanaticism so coolly and triumphantly, by his iron nerve and
good'hard sense' suppressing the treason so artfully masked
in the refined metaphysical theories of Mr. Calhoun, and affixinig an odium to these theories which can never be wholly
shaken off.
Said Andrew Jackson, in his memorable "Proclamation,"
which was hailed with hearty enthusiasm, by men of all
parties and sections outside of South Carolina: "The right
to secede is deduced from the nature of the Constitution,
30 
ARE WE A NATION?
which, they say, is a compact between sovereign States, who
hlave preserved their whole sovereignty, and therefore are subject to no superior; that, because they made the compact, they
can break it, when, in their opinion, it has been departed from
by the other States. Fallacious as this reasoning is, it enlists
State pride, and finds advocates in the honest prejudices of
those who have not studied the nature of our government suffl ciently to see the radical error on which it rests.
" The people of the United States formed the Constitution,
acting through the State legislatures in making the compact,
to meet and discuss its provisions, and acting in separate conventions they ratified those provisions; but the terms used in
its construction show it to be a government in which the people of all the States collectively are represented.
X *  *     X- *  X    *      *    *    *    *    *2
"The Constitution of the United States, then, formed a government, not a league; and whether it be formed by a compact between the States, or in any other manner, its character
is the same. It is a government in which all the people are
represented, and which operates directly on the people individually, not upon the States-they retained all the power
they did not grant."
As I began with a quotation from Mr. Calhoun, I will conclude
this branch of the subject with a quotation from that speech of
his great opponent which has since had such wide-spread
fame and has become an authority a]most as highly respected as any judicial decision.
Said Mr. Webster (Senate Debates, 16th Feb., 1833): " There
is no language in the whole. Constitution applicable to a confederation of States. If the States be parties, as States, whlat
are their rights, and what their respective covenants and stipulations? And where are their rights, stipulations and cove
31 
ARE WE A NATION?
nants expressed?  The States engage for nothing they prornmise nothing. In the articles of the confederation, they did
make promises, and did enter into engagements, and did plight
the faith of each State for their fulfilment; but in the Constitution there is nothing of that kind. The reason is, that in
the Constitution, it is the people who speak, and not the States.
The people ordain and therein address themselves to the States
and to the legislatures of the States, in the language of injunction and prohibition. The Constitution utters its behests
in the name and by the authority of the people, and it exacts not
from the States any plighted public faith to maintain it. On
the contrary, it makes its own preservation depend on individual duty, and individual obligation.  *  *  *  If the Constitution is a government, existing over all the States, though
with limited powers, it necessarily follows that, to the extent
of those powers, it must be supreme. If it be not superior to
the authority of a particular State, it is not a national government.  But as it is a Government, as it has a legislative power
of its own, and a judicial power coextensive with the legislative, the inference is irresistible, that this Government thus
created by the whole, and for the whole, must have an authority superior to that of the particular government of any one
part."
If I had access to large libraries, it would be easy to enlarge
immensely the list of authorities corroborating, the views I
have set forth; but the limits necessarily imposed  upon  an
essay like this would prevent more numerous citations. If,
however, from these obvious reasons, my authorities are few,
they are certainly the highest and most venerable known to
our Constitutional Jurisprudence.
I have cited from Washington, Jefferson, Madison, and
Jackson; from Ellsworth, Jay, Wilson, Marshall, and Story;
32 
ARE WE A NATION?
from Hiamilton, Webster and Benton. Mr. Jeffersonii's opinions were different, in many respects, from those of the fi'amers of the Constitution, but as President, sworn to observe the
Constitution, as it was, as "the " supreme law of the land," he
felt bound by its provisions, "as interpreted by its advocates."
All of these " advocates and friends of the Constitution, at
the time of its adoption," believed that it established a national
Government, limited in its sphere of operations, and instituted
for certain definite purposes, but supreme within that sphere,
and for those purposes.
It is obvious that the recorded opinions of these men are of
the greatest weight, in reference to the meaning of that which
was, to a great extent, the work of their hands. The great
oracle of the old common law, Lord Coke, has given us a canon of interpretation which is strictly applicable to our present
subject.
" Great regard, "says he, "oughlt, in construing a statute,
to be paid to the construction which the sages of the law, who
lived about the time, or soon after it was made, put upon it;
because they were best enabled to judge of the intention of
the makers at the time when the law was made. "-Dwarris
on Stat. 693.
This sound rule of interpretation never applied with more
force, than to the " Federalist," of which that great jurist,
Chancellor K~ent, says, in his Commentaries, vol. 1, page 256.
"There is no work on the subject of the Constitution, and on
Republican and Federal governments generally, that deserves
to  b   e more thoroughly studied  *  *  *  "The numbers of
the Federalist were read with admiration, and enthusiasm as
they   s uccessively appeared.  No  Constitution of government
ever received a more masterly and successful vindication. I
know not, indeed, of any work on the principles of free gov         -  3
33 
ARE WE A NATION?
ernment, that is to be compared, in instruction, and in intrinsic
value to this small, and unpretending volume of the Federalist;  not even if we resort to Aristotle, Cicero, Machiavel,
Montesquieu, Milton, Locke, or Burke.   *  X  X   Mr. Justice
Story acted wisely in making it the basis of his Commentary."
With the strong support of so high an authority, expressed
so emphatically, I need not apologize for the frequent use I
have made, and shall make, of the " Federalist," in ascertaining the contemporaneous construction of the Constitution. A
work so illustrious from its authorship, which was so influential in forming public opinion in a great crisis, which has
been, ever since its publication, the text book of statesmen,
and judges to an extent  unparalled  in political literature,
and which, by the masculine vigor of its thought, the range of
its historical illustrations, and the plain, unanswerable cogency
of its reasoning, is sure of an immortalitv of usefullness; such
a work as this, is surely in no danger from newspaper squibs
or Judicial, or Senatorial'oratory.'
After this brief, and perhaps necessary digression, I will
returin to the more direct consideration of my subject.
The framers of the Constitution, felt the difficulties inseparable from a merely recoin mendatory general government,
whose powers were subject to the interpretation of thirteen
independent sovereignties, and  so they provided  that the
Constitution and the laws of the United States which shall
be made in pursuance thereof, and all the treaties made or
which shall be made, under the authority of the Uinited States,
shall be the supreme law of the land; and tile judges of every
State shall be bound thereby, anything in the Constitution or
laws of any State to the contrary notwithstanding." This
would have been of but little utility, but for the previous provision, that "The judicial power shall extend to all cases in law
34 
ARE WE A NATION?
and in equity, arising under this Constitution, the laws of the
United States, and treaties made, or which shall be made, under
their authority, &c."
This provision was made definite and effectual, by the previous section vesting the judicial power-in these words:
1. " The Judicial power of the United States shall be vTested
in one Supreme Court, and in such infbrior courts as the Congress may, from time to time ordain and establish, &c."
In pursuance of these provisions, the first Congress, at its
first session, established, in the Judiciary Act, a m-ethlod of
effecting them, and for bringing all questions of constitutional
power to the final decision of the Supreme Court.
This, together with the act organizing the Northwestern
Territory, having been passed under the influence of the men
who made the Constitution, and as a completion of their designs, is of nearly the same solemnity, and authority, as the
Constitution itself, and these acts stand on higher ground than
any subsequent enactments of the national will.
Sixteen of the thirty-nine framers of the Constitution, were
in that Congress, and of the members of the Committee who reported the Judiciary act, five out of the eight, had been memhers of the Convention, viz.: Oliver Ellsworth, Wmn. Patterson, Caleb Strong, Richard Bassett, and Wm. Few.
It may be presumed of such men as these, that they knew
hlow to frame a Constitutional Act, and it will hardly be suggested that they would knowingly violate the letter or spirit
of the Constitution which they had helped to make and sworn
to observe.
The 25th section of the act of the first Congress of the
United States, approved September 24th, 1789, provides as
follows:
"That a final judgment or decree in any suit in the highest.
35 
ARE WE A NATION?
court of law or equity of a State in which a decision of the
suit could be had, where is drawn in question the validity of a
treaty or statute, 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 or of an authority
exercised under any State on the ground of their being repugnant to the Constitution, treaties, or laws of the United States,
and the decision is in favor of their validity; or where is
drawn in question the construction of any clause of the Constitution, or of a treaty or statute, or of a 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 Constitution, treaty,
statute, or commission, may be re-examined, 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 proceedings
upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the case 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 ease as aforesaid, than such as appears on the face of the
record, and immediately respects the before mentioned question of validity or construction of the said Constitution, trea.ties, statues, commissions, or authorities in dispute."
36 
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When this act was passed, the government was complete in
all its branches.  As Mr. Webster said in reply to Hayne:
"It then, sir, became a government. It had the means of
self-protection; and but for this, would, in all probability,
have been now, among the things which  are past.  Having
constituted the government, and declared its powers, the people have further said, that, since somebody must decide on the
extent of these powers, the governiment shliall itself decide, subject always, like other popular governments, to its responsibility to the people."
I will now show with what view these clauses of the Constituttion and the legislation in pursuance of them were regarded by the framers of that instrument, and with what interpretation they were presented to the people for their ratification and assent.
Mr. Madison, whose name is so often used by the opponents
of the Appellate Jurisdiction, and Mr, IHamilton, both seem to
have entertained the same opinions as to the effect of these
provisions.
Says lMr. Madison, Pled. No. 39, after showing in what
respect the government established by the Constitution was
neither wholly national, nor wholly federal: "In this relation, then, the proposed government cannot be deemed a
national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary
and inviolable sovereignty over all other objects.  It is true,
that in controversies relating to the boundary between the two
jurisdictions, the tribunal which is ultimately to decide, is to
be established under the General Governnient (the Supreme
Court). But this does not change the principle of the case.
The decision is to be impartially made, according to the rules
of the Constitution; and all the usual and effective precautions
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are taken to secure this impartiality.  Some such tribunal is
clearly essential to prevent an appeal to the sword, and a dis solution of the compact; and that it ought to be established
under the general, rather than the local government; or to
speak more properly, that it could be safely established under
the first alone, is a position not likely to be combated."
It is to this decided expression of his views that Mr. Madison refers in the following extract from the letter to Mr.
Everett, already quoted from, which was written forty years
after the publication of the "Federalist."
"With respect to the judicial power of the United States, and
the authority of the Supreme Court in relation to the boundary
of jurisdiction between the Federal and the State governments, I may be permitted to refer to the thirty-ninth number
of the "Federalist," for the light in which it was regarded by
its writer, at the period when the Constitution was depending;
and it is believed, that the samne was the prevailing view then
taken of it, that the same view has continued to prevail, and
that it does so at this time notwithstanding the eminent exceptions to it."
Says Hamilton, Fed. No. 80, "If there are such things as
political axioms, the propriety of the Judiciary power of a
government, being co-extensive with its legislative, may be
ranked among the number. The mere necessity of uniformity
in the interpretation of national laws, decides the question.
Thirteen independent courts of final jurisdiction, over the same
causes, arising upon the same laws, is a Hydra in government
from which nothing but contradiction and confusion can proceed."
Again, in treating the same subject, No. 82, " Here another
question occurs: what relation would subsist between the National and State Courts, in these instances of concurrent juris
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diction? I answer, that an appeal would certainly lie from
the latter to the Supreme Court of the United States. The
Constitution in direct terms, gives an appellate jurisdiction to
the Supreme Court, in all the enumerated cases of federal
cognizance, in which it is not to have an original one, without
a single expression to confine its operation to the inferior Federal Courts.  *  *  *  the National and State systems are to
be regarded as one whole.  The Courts of the latter, will, of
course, be natural auxiliaries to the execution of the laws of
the Union, and the appeal from them will naturally lie, to that
tribunal, which is destined to unite and assimilate the principles of national justice, and the rules of national decision.
The evident aim of the Convention is, that all the causes of
the specified classes shall, for weighty public reasons, receive
their original, or final determination in the Courts of the
Union."
Oliver Ellsworth, one of the greatest of the framers of the
Constitution, in a speech advocating its adoption by the Connecticutt Convention, said:
" This Constitution defines the extent of the powers of the
General Government. If the general legislature should, at
any time, overleap its limits, the Judicial department is a
constitutional check. If the United States go beyond their
powers, if they make a law which the Constitution does not
authorize, it is void; and the judiciary power, the national
judges, who, to secure their impartiality, are to be made independent, will declare it to be void. On the other hand, if the
States go beyond their limits, if they make a law which is an
usurpation upon the General Government, the law is void;
and upright, independent judges will declare it to be so."
1[r. Ellsworth reported the judiciary act of 1789.
It is often assumed, it is to be hoped ignorantly, that the old
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ARE WE A NATION 
"Republican" party, or a majority of its leaders. entertained
views similar to those now advocated by the opponents of the
Appellate Jurisdictioni, and that they regarded this jurisdiction
as dangerous to the freedom of the citizen. I have not the
space, had I the time, to develop the historical evidence which
might easily be brought to bear upon this question; still, a
few representative and illustrative facts may be presented,
which will, perhaps, be acceptable to those who have not investigated this subject.
A majority of the N. Y. Convention, called to consider the
Constitution, were decidedly hostile to Federalism, and, for
some time, to the adoption of the Constitution. It was not
until they heard of the unexpected accession of the Virginia
Convention, and after the ratification of the Constitution by the
nine States, which was necessary to the establishment of the
new government, that they were brought to the point of ratification. Yet, even then there was only the small majority of
five, and they accompanied their consenting vote with several
proposed amendments. Among these, we find one for depriving the " Inferior Courts," to be established by Congress in
pursuance of the " Judiciary Clause," of their original jurisdiction, except in Admiralty and Maritime cases, and others
of like character, "and in all other eases, to which the judiceial power of the United States extended, and in which the
Supreme Court had not original jurisdiction, the causes should
be heard in the State Courts, with right of appeal to the Supreme or other Courts of the United States." Pitkin's History
TU.S., vol. 2, p. 282.
In other words, they wished to remove as many cases of
original jurisdiction from the Federal District-Courts as possible, without limiting or altering the revisory power of the Siupremne Court. The " Republicans" of those days disliked; not
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the Appellate jurisdiction of the Supreme Court, but the original jurisdiction of the District Courts.   These Courts were
odious to them, because they were to discharge functions previously performed by the State Courts, because they would
entail unnecessary expense in Court Houses, salaries and fees,
and because they would be likely to alienate the friendly feelings of the people from the General Government.
These objections were all fully brotught out, in the course of
the debates in the first Congress upon the Judiciary Bill.
Mr. Livermnore, one of the New Hampshire Representatives,
was an ardent and leading " Republican," was opposed to the
provisions of the "Judiciary Act," reported by the Senate
committee, and moved a change in some of these provisions;
yet, as we shall see, recognized as an unquestionable fact the
Appellate Jurisdiction.   He opposed the system of Inferior
Courts, provided for in the act  "Because it would be attended with great inconvenience and
expense. The salaries of thirteen district Judges, and the
necessary buildings for their accommodation, is no inconsiderable saving to a people oppressed so severely by the burdens of
the late war.   *   *  The Bill proposes that the State courts
shall have concurrent jurisdiction with the District  Courts.
Now, under these two establishments, debtors may be worried
and distiessed more than is necessary for the plain and simple
administration of justice," &c. Debates of Congress, vol. 1,
page 827.
Mr. Jackson, of Georgia, another leading "Republican,"
coincided with these views. These gentlemen, who may be
considered as fair exponents of the " Republicanism" of that
day, in their respective sections, argued that the State Courts,
and Federal Admiralty Courts, being bound by oath to observe
the Constitution, would be safe tribunals for trying all the
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cases proposed to be included within the jurisdiction of the
District Courts.   But, what were the arguments of these men,
who were the most jealous of Federal power?  Says Mr. Livermore, " If Justice cannot be had here  (in the State and
Admiralty Courts), there will be an appeal to the Federal Supreme Court, which is all that can be required." Says Mr.
Jackson: "Hle was clearly of opinion that the people would
much rather have but one appeal, which, he conceived, would
answer every purpose; he meant from the State Courts immediately to the Supreme Court of the Continent."   And afterwards, in reference to the necessity that every government
should have the means of enforcing its own laws: "Are not the
Judges of the different States bound by oath to support that
Supreme law? * * * But does there not remain the Appellate
Jurisdiction of the Supreme Court, to control themn and bring
them to their reason?  Can they not reverse or confirm the
State decrees, as they may find them right or wrong?"
Both of these learned gentlemen coincided with Judge Smith
in his supposition that the State Judges were bound by the
Constitution, and that they might be relied upon to be governed
by it in their decisions; but neither entertained the notion that
from these decisions there was to be no appeal, but seemed to
regard it as a matter of course that the Supreme Court was to
be the final arbiter.
Mr. Livermore's amendment to the Senate Bill, which provided for State and Admiralty Courts, in the place of the District Courts, was supported by such thorough "Republicans,"
as Mr. Burke, Mr. Sumter, of South Carolina, and Mr. Stone,
of North Carolina, and it will be remembered that Mr. Livernmore contemplated a direct appeal from the State Courts to the
Supreme Court.
The same views were expressed in the heated Congressional
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debates upon the Judiciary, in 1802, by the majority of the
leaders of the "Republican" party of that day.  The appointmnent, by John Adams, of an  army of District Judges for
whom offices had been created, during the last days of his administration, was calculated to provoke the wrath of the incomning party, and it would not have beep strange, had the
whole  system  of our Federal  Judiciary, been  materially
changed, if not destroyed; yet we find in the debates, no arguinents, or but few at least-so few as to be difficult of discovery-against the Appellate Jurisdiction.
Governeur Morris  and  Mr. Jackson took opposite  positions in these debates, in the Senate. Senator Morris represented the "Federal," and Senator Jackson, the " Republican" party, and both of them spoke as ably as any members
of either House. Towards the close of this debate (Annals of
Cong. 1802, p. 181), there was a warm appeal and reply, on
the part of these Senators respectively.
"Experience uinder the old confederation had shown," said
Senator Morris, " that applications  made  to  Coigress,  to
large communities, were nugatory, and that to carry on the
business of the National Government, it should be vested with
the right of applying directly to individuals. But then, the
danger.that it might swallow up the sovereignty of the States,
became evident.   To provide against this danger, the Constitutional doctrine was established, that no powers should be
exercised by Congress, but such as are expressly given, or
were necessarily incident, and as a farther security, provision
was made, prohibiting certain acts.  But of what avail are
such securities, when  your legislative authority is bounded
only by your discretion?"
In reply to this, and other remarks, Senator Jackson, citing
the Judieim.- clause of thle Constitution, said, "the gentleman
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therefore, may dismiss his fears, as to what may be done by
the inferior (that is, the State Courts), for there is always an
appeal to the Supreme Court. 
Such was the unanimity among the men of both parties,
during the generation which was cotemnporary with the Constitutional Convention, and the first administrations under it,
in regard to the construction of the Judiciary clause, as to the
Appellate Jurisdiction.  The objects which were to be attained by the new government, as well as the keenly remembered
evils of the old confederation, and the predominant influence
of the great men who had led them fiom the anarchy and
woes of the latter, to to the order and blessings resulting from
the former, all concurred in producing a great uniformity of
opinion on this point.
In pursuance of the provisions of the "Judiciary Act," of
1789, appeals were taken from the Supreme Courts of various
States. The first, was firom IRhode Island, and the question
of the Appellate Jurisdiction was not even raised, and after
this, there were appeals from  lvIaryland, Connecticut, New
York and South Carolina successively, and in none of these
cases, was the Jurisdiction of the Supreme Court, questioned.
In the case of Smith vs. State of Maryland, 6 Cranch 286, decided in 1810, the question was raised, but not noticed by the
court.  Then, in the case of Fairfax vs. Hunter, 7 Cranch 603,
the judgment of the Virginia court of Appeals, was reversed.
The decision in that court was rendered in 1810,,and it furnished a certified copy of its record to the Supremie Court,
without questioning its appellate power, thus sanctioning the
action of the Legislature of that State, which, in that year, responded to a proposition on the part of Pennsylvania, "to
amend the Constitution, so as to provide a separate and independent tribunal, for the settlement of conflicts between the
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State and Federal authorities," that the Supreme Court of the
United States, as then constituted, had all needful jurisdiction,
and that, they had confidence in its rectitude, and impartiality.
This resolution was passed in the Virginia Legislature by a
unanimous vote.
But in 1814, where the mandate friom the Supreme Court,
came to the Virginia Court, the State was intensely excited,
on account of the difficulties between New England and the
South, growing out of the Embargo; the federal principles of
the former section, were involved in the unpopularity of certain acts and measures, and the action of the Court of Appeals was biased by the prevailing political excitement, as appears from the record itself. On the refusal of the Court of
Appeals to obey the mandate in Fairfax vs. Hunter, the case
was again presented to the Supreme Court, in 1816.  Up to
this time, the Supreme Court of the United States had not
been called upon to determine expressly the limits of its Appellate Jurisdiction.  In other words, the government had
gone on for a quarter of a century, under the guidance of
" the Fathers," who made the Constitution, with such unanimnity of opinion, as to the true construction of the Constitution,
upon this point, that a case had never been presented to the
Supreme Tribunal of the Union, in which the Appellate Jurisdiction had been fairly, and fully, put in question.-DtDuring
all this time, appeals had gone up, from the highest courts of
several of the States, as quietly, as rati:rally, and as unquestioned, as from their various Circuit, or County Courts, to the
Supreme Tribunals of the States.  And no question might
have been made, for years longer, had not extraneous considerations warped the Virginia Court.
Yet it was fortunate, that the question was thus raised, at
this time, when the Supreme Court was in the palmiest days
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of its renown, when it was honored, and revered, to a greater
degree than any other Judicial Tribunal in the world, not so
much for the exalted prerogatives with which it was clothed,
as for the distinguished talents, the spotless characters, and
the great learning of its Judges.
In the great case which I have mentioned, and which is reported in 1 Wheaton 304, the whole question of the Appellate Jurisdiction was ably discussed, and as ably decided. The
case excited the attention of the whole country at that time,
and the decision of the Court upon it, became incorporated into the public opinion of the nation, to an extent which we,
who live in the times of " Dred Scott" decisions, and partisan
Judges, can hardly realize. A clearer, more luminous and
convincing decision, was never pronounced.  It would be well
were every citizen of Wisconsin to read it carefully and
thoughtfully, and yield to the force of its reasoning what might
be denied to the mere authority of any judicial opinion, as
such.  The opinion of the court was delivered by Judge Story,
then in the zenith of his reputation.
After stating several cases, in which points of Constitutional
law might be raised in the State courts, and in which, they
ought, from obvious reasons, to entertain jurisdiction, " It
must therefore," says the Judge, "be conceded, that the Constitution not only contemplated, but meant to provide for, cases
within the scope of the judicial power of the United States,
which might yet depend before the State Tribunals.  It was
foreseen that in the ordinary exercise of their jurisdiction
State courts would, incidentally, take cognisance of cases arising under the Constitution, the laws, and treaties of the United States. Yet to all (;f these cases, the judicial power, by
the very terms of the Constitution is to extend. It cannot extend by original jurisdiction, if that was rightfully, and exclu
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sively attached in the State courts, which as has been already
shown, may occur. It must, therefore, extend by appellate
jurisdiction, or not at all.
"It would seem to follow, that the appellate power of the
United States must, in such cases, extend to State tribunals;
and if, in such cases, there is no reason why it should not
equally to all others within the purview of the Constitution.
It has been argued, that such an appellate jurisdiction over
State Courts is inconsistent with the genius of our Governmient
and the spirit of the Constitution. That the latter was never
designed to act upon State sovereignties, but only upon the
people; and that if the power exists, it will materially impair
the sovereignty of the States and the independence of their
Courts. We cannot yield to the force of this reasoning; it
assumes principles and draws conclusions to which we do not
assent. It is a mistake that the' Constitution was not designed to
operate upon States in their corporate capacities. It is crowded with provisions which restrain, or annul, the sovereignty of
the States, in some of the highest branches of their prerogatives.
The o10th section of the 1st Article contains a long list of disabilities and prohibitions imposed upon the States. Surely,
when such essential portions of State sovereignty are taken
away, or prohibited to be exercised, it cannot be correctly
asserted that the Constitution does not act upon  the States.
The languag,e of the Constitution is also imperative upon the
State legislatures, to mnake laws prescribing the time, places,
and manner of holding elections for Senators and  Representatives, and for Electors for President and Vice President. And
in these, as well as some other cases, Congress have a right to
revise, amend, or supercede, the laws which may be passed by
the State Legislatures.
"When, therefore, the States are stripped of some of the
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highlest attributes of sovereignty, and the same are given to
the United States; when the legislatures of the States are, in
some respects, under the control of Congress, and in every
case are, under the Constitution, bound by the paramount authority of the United States; it is certainly difficult to support the argument, that the appellate power over the decisions
of State Courts is contrary to the genius of our institutions.
The Courts of the United States can, without question, 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 vitality.
Surely, the exercise of the same right over judicial tribunals
is not a higher, or more dangerous act of sovereign power.
Nor can such a right be deemed to impair the independence
of State Judges. It is assuming the very ground in controversy, to assert that they possess an absolute independence of the
United States.  In respect to the powers granted to the United States, they are not independent; they are expressly bound
to obedience by the letter of the Constitution. And if they
should, unintentionally, transcend their authority, or misconstrue the Constitution, there is no more reason for giving their
judgments an absolute and irresistible force, than for giving it
to the acts of the other co-ordinate departments of State sov
ereignty.
"The arguments used from the possibility of the abuse of the
revising power, is equally unsatisfactory.   It -is always  a
doubtful course to argue against the existence of a power, from
the possibility of its abuse.   It is still more difficult, by such
an argument, to ingraft upon a general power a restriction,
which is not to be found in the terms in which it is given.
From the very nature of things, the absolute right of decision,
in the last resort, must rest somewhere. Wherever it may be
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vested, it is susceptible of abuse. In all questions of jurisdiction, the inferior or appellate Court must pronounce the final
judgment; and comm on sense, as well as legal reasoning, has
conferred it upon the latter. It has been further argued against
the existence of this appellate power, that it would form a
novelty in our judicial institutions.  This is certainly a mis
take."
The Judge here instanced the right of appeal, in all cases of
captures given in the Articles of Confederation, to Courts to
be created by Congress. " It is further argued, that no great
public mischief can result from a construction which shall
limit the appellate power of the United States, to cases in
their own Courts: first, because State Judges are bound by
an oath to support the Constitution of the United States, and
must be presumed to be men of learning and integrity; and
secondly, because Congress must have an unquestionable right
to remove all cases within the judicial power, from the State
Courts to the Courts of the United States, at any time before
final judgment, though not afterward. As to the first reason,
admitting, that the judges of the State Courts are, and always
will be, of as much learning, integrity and wisdom as those of
the United States, which we very cheerfully admit, it does not
aid the argument.
"It is manifest that the Constitution has proceeded upon a
theory of its own, and given, or withheld powers, according to
the judgment of the American people, by whom it was adopted. We can only construe its powers, and cannot inquire
into the policy or principles which induced the grant of them.
The Constitution has presumed, whether rightly or wrongly,
we do not inquire, that State attachments, State prejudices,
State jealouses, and State interests, might sometimes obstruct
and control, or might be supposed to obstruct and control, the
4D
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regular administration of justice.   Hlence, in controversies
between States; between citizens of different States; between a
State and its citizens, or foreigners; it enables the parties, under
the authority of Congress, to have the controversies heard, tried,
and determined before the national tribunals.
"This is not all. A motive of another kind, perfectly compatible with the most sincere respect for State tribunals, might
induce the grant of appellate power over their decisions. That
motive is the importance, and even the necessity of uniformity
of decisions throughout the whole United States upon all subjects within the purview of the Constitution.   Judges of equal
learning and integrity, in different States, might differently
interpret a statute or a treaty of the United States, or even the
Constitution itself. If there were no revising authority to control these jarring and discordant judgments, and harmonize
them into uniformity, the laws, the treaties, and the Constitution of the United States, would be different in different States,
and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two States.  The public mischiefs that would attend such a state of things would be truly deplorable; and it cannot be believed that they could have escaped
the enlightened Convention which framed the Constitution.
"'What indeed might have been prophecy, has now become
fact; and the appellate jurisdiction must continue to be the
only adequate remedy for such evils.
" There is an additional consideration, which is entitled to
great weight.   The Constitution of the United States was
designed for the common and equal benefit of all the people of
the United States. The judicial power was granted for the
same benign and salutary purposes.  It was not to be exercised
exclusively for the benefit of parties who might be plaintiffs,
and would elect the national forum; but also for the protection
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of defendants, who might be entitled to defend their rights, or
assert their privileges before the same forum. Yet, if the construction contended for be correct, it will follow that, as the
plaintiff may always elect the State Court, the defendant may
be deprived of all the security which the Constitution intended
in aid of his rights.   Such a state of things can in no respect
be considered as giving equal rights." The Judge, after showing the inadequacy of the supposed power of removal of suits
from State to Federal Courts by Congress, to meet the ends of
the Constitution, concludes:
"On the whole, the Court are of opinion that the appellate
power of the United States does extend to cases pending
in the State Courts; and that the twenty-fifth section of the
Judiciary Act, which authorizes the exercise of the jurisdiction
in the specified cases by a WVrit of Error, is supported by the
letter and spirit of the Constitution.  -We find no clause in that
instrument which limits this power; and we dare not oppose a
limitation where the people have not been disposed to create
one.   Strong as this conclusion stands upon  the general
language of the Constitution, it may still derive support from
other sources. It is an historical fact that this exposition of the
Constitution extending its appellate power to State Courts was,
previous to its adoption, uniformly and publicly avowed by its
friends and admitted by its enemies, as the basis of their respective reasonings, both in and out of the State Conventions.
" It is an historical fact that at the time when the Judiciary
Act was submitted to the deliberations of the first Congress,
composed, as it was, not only of men of great learning and
ability, but of men who had acted a principal part in framing,
supporting, or opposing that Constitution, the same exposition
was explicitly declared and admitted by the friends and the
opponents of that system.
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"It is an historical fact that the Supreme Court of the United
States have, from time to time, sustained this appellate jurisdiction in a great variety of cases, brought from the tribunals
of many of the most important States of the Union; and that
no State tribunal has ever breathed a judicial doubt on the
subject, or declined to meet the mandate of the Supreme Court,
until the present occasion. This weight of contemporaneous
exposition, by all parties, this acquiescence of enlightened
State Courts, and these judicial decisions of the Supreme
Court, through so long a period, do, as we think, place the
doctrine upon a foundation of authority which cannot be
shaken without delivering over the subject to perplexing and
irremediable doubts."
So absolute and complete a demonstration as this is calculated to compel the assent of every in man's reason; nor canll its
force be resisted by any one who reads it, unless he is under
the thraldom of very strong prejudices;  and, indeed, the
reasoning of the Court appears to have overcome even the
violent prejudices of Virginia, since we do not find her questioning the appellate jurisdiction after this; for in 1821, when
the case of Cohens vs. Virginia came ulp, the Court of Appeals
recognized it by making a return to the writ of Error, though
the question was discussed, and Chief Justice Marshall decided
it again, and as an original question; bringing to bear upon it,
all of his unrivalled powers of reasoning, his massive judicial
endowments, and his intimate acquaintance with the events,
the men, and the measures of our Revolutionary and Constitutional eras.   I regret that I cannot give any extracts from this
decision, since I have already made as extensive quotations as
my limits will permit.
During the interval between the case of Fairfax vs. Hunter
in 1814, and the year of this case, in 1821, the appellate juris
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diction was asserted, without denial on the part of the State
Courts, over cases from Massachusetts, Rhode Island, New
York, Pennsylvania, Maryland, in the historical case of Dartmouth College vs. Woodward, from Newv Hanmpshire, so often
quoted and recognized as the law of the land, and again in
a case from Pennsylvania, the decision of which has moulded
the jurisprudence and legislation of that State ever since,
upon the questions and principles involved in it. Soon after
this, the legislative and judicial policy of the State of New
York, in reference to the steamboat monopoly of its waters,
was reversed by the decree of the Supreme Court in the
memorable case of Gibbons vs. Ogden, which not only involved
millions, but was calculated to enlist State pride, and to stimulate the feeling of State sovereignty in the "Empire State" of
the Union; and notwithstanding all Of the Courts of that State
had solemnly pronounced the legislation thus completely set
aside to be Constitutional. In this case no question of jurisdiction was raised.
After this, appeals were taken successively from the Supreme
tribunals of Ohio, Vermont, New York, Tennessee, Louisiana,
Kentucky, Maryland, Mississippi,  Delaware,  Pennsylvania,
South Carolina, and  Missouri;  from  some of them  more
than once; all of them obeying the mandates of the Supreme Court, and recognizing its appellate jurisdiction.   Then
there were two cases from the State of Georgia, Worcester vs.
State of Georgia, and Butler vs. State of Georgia, 6 Peters
515 and 537, in which the Supreme Court of that State
refused obedience to the mandates of the Federal Court. The
plaintiffs in these cases were convicted of the crime of preaclhing the gospel to the Cherokees.   But the  moving  cause
of the popular excitement, and that which swayed theCourt,
was jealousy of suspected interference with the institution of
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slavery.   Under the pressure of this outside excitement, the
Georgia Court assumed for its decrees a finality, which they
knew was necessary to avert the just judgment of the Supreme
Court, as they may again, under the  first Administration,
which really tries to punish the slave traders of that State
citing, perhaps, the decision of our own Judge Smith as authority.
Since these "Georgia cases," the mandates of the Supreme
Court have been obeyed by the Courts of nearly every State
in the Union, including Wisconsin.   No  resistance has been
made to the exercise of the appellate jurisdiction, except in
the Booth case.  From an able contribution upon this subject
in the State Journal, which has rendered  my labor much
easier in this particular, we learn that " upwards of Two Hundred cases have been removed from State Courts to the Supreme Court of the United States, as follows:
From Rhode Island.............. 3
" Maryland............... 16
" Connecticut....      2......... 2
" New York..............17
" South Carolina............. 3
" Ohio.................. 16
"  Louisiana......... 28
" Mississippi.............. 8
"  Delaware.............. 3
Missouri................ 17
" Kentucky.............. 8
" Michigan.............. 3
" Indiana................ 4
"  Texas.................. 2
Of these, sixty-five have bee
within the act of Congress; sixty-eight have been reversed,
and the judgments of reversal acquiesced in, in all, it is believed, except the cases from Georgia and the Booth case
from Wisconsin. In the remainder of these cases, the judgments of the State Courts were affirmed."
54
From Virginia................
Massachusetts...........
Pennsylvania...........
New Hampshire.........
Vermont...............
Tennessee..............
Georgia................
Arkansas...............
Maine..................
Illinois.................
Alabama...............
Iowa...................
Wisconsin..............
Florida......
5
13
13
2
4
5
2
it
2
6
19
4
4
2
dismissed as -not coining 
ARE WE A NXATION?.
Thus, it has been shown that the constitutionality of the
Judiciary Act of 1789, under the provisions of which the appellate jurisdiction has been exercised for seventy years, has
been recognized as unquestionable by the highest Courts of
nearly all of the States of the Union, and has been denied in no
case save in Virginia, whose Court has since twice recognized
it, in Georgia,' and in Wisconsin, in the Booth case,* and our
own Court has recognized this jurisdiction in other cases. In
the exercise of its controlling power as a Court of Appeals
the Supreme Court has reversed the judicial policy of great
States, again and again, in cases where State interests or State
prejudices have distorted the principles of law.
Every citizen of the Union has received his share of the
benefits arising from the uniformity, the iiiipartiality, and the
beautiful symmetry of our Jurisprudence ensured by this
system of appeals; which was designed by the Fathers to produce these happy results, and which has so'uniformly met the
approbation of the wisest Judges of the various State tribunals, that a Judge who dissents from this, their uniformity of
agreement, is apt to become, perforce, an Ishmael among his
* NOTE. -It is singular that there should exist so much misapprehension as
to the positions taken by the different Justices of the Supreme Court in this
case.
Judge Smith's "State Rights" theories, developed in the various stages
of this case, are strengthened in the minds of many by a supposed concurrence, to a greater or less extent, of Chief Justice Whiton, a Judge who never
was famous for " theories," but rather for his clear, practical insight into the
law as it is, and a studious avoidance of extraneous matters in his decisions.
This supposed concurrence of Judge Whiton is well known to be a mistake, by those who have read the Report of the case.
For the benefit of such as have not the time to read this rather voluminous document, I will state briefly the various stages of this case, as far as is
given in the 3d vol. of our Reports. The later proceedings are fresher and
more familiar
The first application of Mr. Booth was made to Justice Smith alone. In
his decision upon this application, the Judge criticises the course of Mr.
515 
AARE WE A NATION?
judicial brethren, and to mnake use of the vague generalities of
the politician, instead of the precise  language of Jurispru
dence.
He is likely to insist on reiterating phrases applicable only
to a state of things which the Constitution was made to remedy,
as if reassertions could endow them with vitality or could clothe
them with truth.
Hle is compelled, in order to sustain his position, to assert
that the Constitution is a "compact between the States," not
withstanding it contains no covenants between the States, that
the States are not mentioned in it as parties, that, by its own
terms it emanates from " the people" as directly as the Con
stitutions of the States, that its language throughout is not the
language of compact or treaty, but the imperative dialect of
command, to the States as well as to the citizen; and in face
Booth in allowing two opportunities of applying to the whole Court to pass
unimproved. Says the Judge: " I am at a loss to conceive the motive
which may have induced him or his advisers to forego such opportunities.
" Whether by design or from neccessity, this application has been made to
me."  (Rep. vol. 3, p. 9.) Mr. Booth had waived the technical defences
which were sufficient to discharge him, and saw fit, in the words of the Judge
"to demand his discharge upon the invalidity of the law by virtue of which
the warrant was issued, or not at all," and the Judge remarks most properly,
" I can neither permit, nor accept an such issue." It seems rather strange,
after such an introduction, that the Judge should go on, and give a very
lengthy opinion, not only as to the constitutionality of the Fugitive Slave
Law, but also as to the nature of our Government, enunciating the State
Rights theories which have been so much talked about, and so little understood, in this State.   One is led to fear that the Judge did, in  this way
(involuntarily) further the very designs which Mr. Booth entertained.
This was the first proceeding.
Afterwards a writ of "Certiorari" was allowed, and the case came before
the whole Court, where it should have come in the first instance. The
Justices delivered separate opinions. all of them agreeing as to the vital
point in the case, viz., the discharge of Mr. Booth on account of the defectiveness of the process by which he was held, but each giving his own views as to
other matters.   Chief  Justice Whiton believed  the Fugitive  Slave Law
unconstitutional, but nowhere assents, any more than Justice Crawford, to
the State Rights Theories of Justice Smith. In fact, he expressly admits the
56 
ARE WE A NATION?
of the fact that those who made the Constitution intended to
supercede an inefficient "compact" by a Government endowed
with the sovereign characteristics inherent in the very idea of a
government.
He is compelled to say that the State and general governments  are  "co-ordinate  and co-equal within the respective
spheres of the departments of the system," while, in fact, these
terms are no more applicable than they would be to the respec
tive orbital spheres of Saturn, and of this Earthl, which groans
under so mnany fallacies.
authority of the Federal Supreme Court, for in reply to the objection that the
Supreme Court of the U. S. had passed upon the Law in question, he says
that there had been no adjudication by that Court upon the "Act of 1850,"
consequently (these are his very words),  " we are not at liberty to consider
the question of the right of a person claimed as a fugitive to a trial by jury
before he can be surrendered, or delivered up to the claimant, as already
settled by the Court which has the power finally to decide all questions growing
out of an alleged violation of the Constitution of the United States by an Act
of Congress. We must consider the question an open one." Wis. Rep., vol 3.
p. 63.
Let this be always remembered, when it is sought to fortify the individual
views of Judge Smith, by the supposed concurrence, in some degree, of the
venerable Chief Justice. This was the second proceeding.
Then, on the 21st of July, 1854, Mr. Booth made another application for a
"Habeas Corpus," to deliver him from imprisonment on a warrant from the
District Court of the U. S. This the Court refused to grant, on the ground
that the District Court had obtained jurisdiction.
This was the third proceeding.
Then, the two applications of Booth and Ryecraft, which were the same
in all respects, were presented to the Court, Jan. 26, 1855.  These applications prayed for relief from imprisonment by virtue of a verdict rendered in
the District Court.   The Justices delivered their opinions seriatim.  Chief
Justice Whiton declaring the petitioners entitled to their discharge, on the
ground that the District Court had, in these cases, " no jurisdiction to pronounce a judgment," referring to the opinion of Justice Crawford for a fuller
exposition of that question. Justice Smith comes to the same result, but theorizes quite at large upon the Constitution. Judges unanimous as to the discharge of the petitioners, Judge Smith, as in the previous instances, alone and
unsupported in his State Rights theories, by his Associates. The subsequent
proceedings are familiar to every body.
57 
ARE WE A NATION?
He is compelled to assert that "the Fathers provided no
final umpire to decide, in the last resort, between the States
and the General Government," in face of the recorded declarationis of these "Fathers" to the contrary, expressed so plainly,
and with so much precision, that one would suppose  that
even the Calhoun metaphysics could not refine away their
ineaning.
tie is compelled to reply to the objection of an endless
diversity of interpretations, were the State Courts the final
arbiters of Constitutional construction, by the trifling query,
" what of it? "  But it must have been difficult to have forgotten, that it was the avowed object of the Fathers who made the
Constitution, to terminate the discordant wrauglings of Thirteen
Independent States, each construing,'finally and differently, the
Articles of the Confederation.
Hle is compelled to argue the equal propriety of an appeal
firom  the Federal to a State Court, with that of a State to
the Federal Court, by putting the irrelevant inquiry, " Is his
Honor, Mr. Justice Nelson, aly more competent to determine
the law or the Constitution in Washington than in Albany?
as a Judge of the Supreme Court of the United States, than of
the Court of Appeals of his own State?" while it would have
been just as apposite to ask "why his Honor Judge Paine,
sitting at Madison, on the Supremie Bench, should be  more
competent to construe the law finally, rather than when sitting
.as County Judge at Milwaukee?"
It is difficult to ignore the plain meaning of the Constitution, the circumstances of its origin, and the objects which
were sought by its framers, which were  presented by its
friends and advocates to the people who adopted it as their
supreme law, and which indicate plainly the extent of the
powers thus granted by them.   It would seem difficult to im
58 
ARE WE A NATION.
pugn the wisdom of the greatest judicial minds of the country,
who have, for seventy years, in the various State tribunals,
acknowledged the appellate jurisdiction of the Supreme Court
as the "key-stone of our Constitutional Fabric."
But there are, unfortunately, no limits to assumptions or to
their acceptance. The wildest legal chimeras that ever sprung,
"like Minerva, full-girown from the head of Jove," if clad
with some tattered rags of legal and political phraseology,
however motley or ill-adjusted, and tricked out with a few
"grand, swelling phrases" of liberty, will find disciples, defenders, and friends enough to drown the "still, small voice "
of dissenting reason.
The people are always sound ill their fundamental convictions of right and wrong, but are apt to associate the errors
and iniquities of the officer with any question involving the
powers belonging to his office, and to desire the curtailment of
powers which have been abused.   If our own  State Court
were to decree palpable and gross injustice, or to pervert our
laws to any dangerous extent, it would soon find that the
powers entrusted to it were given for good, and not for evil
purposes, and that these powers would be treated as nullities
by an indignant people. There is a " Higher Law," of earlier
and more authoritative origin than any human enactments; a
law which is the ideal standard of wise law-givers, and which,
as human laws approach, in that proportion' are they excellent-whose mandates can never be disobeyed without  danger
of penalties which are awful and infinite.
But men of education and ability should never attempt to
deceive the people, to trifle with the high behests of conscience, or make it the interpreter of a written and definite
Constitution; they should not pervert historical facts; con temn the authority of men who are entitled to our reverence;
59 
ARE WE A NATION?
nor substitute fanciful speculations as to what our government
should be, for the real government established by the people,
and endowed by them with substantial powers; which has
been effectual for good, yet is liable in bad hands to produce
evil; which has accomplished, and is yet to accomplish, the
work of a substantial government, supreme within its clearly
defined sphere, and which is no more than adequate to the
growing exigencies of a vigorous and homogenous people.
We have embarked, as a people, upon a new and untried
experiment in self-government, in the success or failure of
which we all feel a common interest. The fibres of our national life are all knitted closely together in a solidarity of
happiness or woe, and are all affected when one is unstrung
or diseased.  We are all in one boat, are exposed to common
dangers, and all suffer from the evils or the misfortunes of
the remotest districts. 3laine and California, Wisconsin and
Georgia, are as far apart as England and Turkey, as France
and Egypt, but the ties of interest and the pulsations of feeling
are as strong and tremulous as between any neighboring
counties of England.
When our fellow-citizens in Kentucky or Virginia are wantonly stripped of their constitutional rights, we in Wisconsin
instinctively feel that the Aegis of our common government
ought to shelter them from the fierce storms of State fanaticism.   When  the jurisprudence of great States has become
perverted  into an  instrument  of oppression  and  cruelty,
we all, firom Mlaine to California, naturally look to the Tribunal which was instituted by our fathers "to establish justice,"
and we feel assured that they gave to it powers adequate for
the attainment of this benign object.
Nor will we, if we are wise, abridge or refine away the
plainly given and necessary powers of the government to suit
,60 
ARE WE A NATION?
the requirements of a finely-spuni theory, which was devised
thirty years ago by the subtlest and most dangerous brain
ever influential in our politics, in anticipation of events which
are yet fully to develop tlemselves, and to provide for an
unfortunate section of our country in advance, a Constitutional
doctrine, by virtue of which the rights of citizens of the
United States, the Constitutional safeguards to life, liberty
and property, and the authority and laws of the General Government, might all be subject to the "discretion" of State
despotism.
If dangers thicken around the pathway of our national progress; if the "whole head" of our nation is sick, and the
"whole heart faint," by reason of Executive corruption, and
of judicial partizanship which poisons the very fountains of
justice and paralyzes the influence which has belonged, and
will yet belong, to the tribunal of final resort; it becomes,
more than ever, the duty and necessity of the people to fill
these high places with true men, and such as are equal to the
stern requirements of the times.  The work will be arduous,
protracted, and beset with trials of our faith, but it must be
done; it will be done.   Even  now all the omens are encourag,ing.
It is not, however, by evasive or forced constructions, which
would palsy the energy and powers of the General Governmenit, and would lead us back to chaos again, that we can restore
the glorious era of our first Presidents, when the Executive
arm was efficient for the good of the whole country, when
the National Legislature cared for all of the national interests,
and when the Supreme Tribunal of the Union was the universally venerated fountain of our jurisprudence, the recognized arbiter of every Constitutional question which assumed
the form of a case for its decision, and the refuge of the
61 
ARE WE A NATION?
wronged  and oppressed, fiorm the  erroneous or prejudiced
judgments of State Courts.
The whole government, through the dominant influence of
an immense monied interest, corrupt and corrupting, through
the criminal political apathy of good men and the demoralizing strifes of parties, has been drifting away from the noble
purposes and aims of its founders, until it seeins to be already
upon the fatal rocks and breakers; but, now that we are thus
broug,ht face to face with near perils involving all Americans
in common disasters, shall we take to the boats, because our
pilots have betrayed their trust?   Should we not, rather,
speedily fill their places with loyal men, and strain every sail
and spar, until we have regained our lost track, and are
again steering by the old charts, over the old course, cheered
by the auspicious constellations which beamed upon our
fatlhers?
62