any reason to suppose that they ever would refuse; and therefore there is no provision made for authorising this court to execute its own judgment in cases of that de scription. But not so in cases brought up from the state courts. The framers of that law plainly foresaw that the state courts may refuse; and not being willing to leave ground for the implication, that compulsory process must be resorted to, because no specific provision was made, they have provided the means, by authorising this court, in case of reversal of the state decision, to execute its own judgment. In case of reversal only was this necessary, for in case of affirmance this collision could not arise. It is true, that the words of this section are, that this court may, in their discretion, proceed to execute its own judgment. But these words were very pro In the case before us, the collision has been on our part wholly unsolicited. The exercise of this appellate jurisdiction over the state decisions has long been acquiesced in, and when the writ of error in this case was allowed by the president of the court of appeals of Virginia, we were sanctioned in supposing that we were to meet with the same acquiescence there. Had that court refused to grant the writ in the first instance, or had the question of jurisdiction, or on the mode of exercising jurisdiction, been made here originally, we should have been put on our guard, and may have so modelled the process of this court as to strip it of the offensive form of a mandate. In this case it may have been brought over to what proba-perly put in, that it might not be bly the 25th section of the judiciary act meant it should be, to wit, an alternative judgment either that the state court may finally proceed, at its option, to carry into effect the judgment of this court; or if it declined doing so, that then this court would proceed itself to execute it. The words "sense" and "operation" of the 25th section on this subject, merit particular attention. In the preceding section which has relation to causes brought up by writ of error from the circuit courts of the United States, this court is instructed not❘ to issue executions, but to send a special mandate to the circuit court to award execution thereupon. In case of the circuit court's refusal to obey such mandate, there could be no doubt as to ulterior measures; compulsory measures might unquestionably be resorted to. Nor, indeed, was there made imperative upon this court to proceed indiscriminately in this way; as it could only be necessary in case of the refusal of the state courts; and this idea is fully con firmed by the words of the 13th section, which restrict this court in issuing the writ of mandamus, so as to confine it expressly to those courts which are constituted by the United States. In this point of view, the legis lature is completely vindicated from all intention to violate the independence of the state judiciaries. Nor can this court, with any more correctness, have imputed to it similar intentions. The form of the mandate issued in this case is that known to appellate tribunals, and used in the ordinary cases of writs of error from the courts of the United States. It will perhaps not be too much in such cases, to expect of those who are conversant in the forms, fictions and technicality of the law, not to give to the process of courts too literal a construction. They should be considered with a view to the ends they are intended to answer, and the law and practice in which they originate. In this view, the mandate was no more than a mode of submitting to the court the option which the 25th section holds out to them. Had the decision of the court of Virginia been confined to the point of their legal obligation to carry the judgment of this court into effect, I should have thought it unnecessary to make any further observations in this cause. But we are called upon to vindicate our general revising power, and its due exercise in this particular case. Here, that I may not be charged with arguing upon a hypothetical case, it is necessary to ascertain what the real question is which this court is now called to decide on. In doing this it is necessary to do what, although in the abstract of very questionable propriety, appears to be generally acquiesced in, to wit: to review the case as it originally came up to this court on the former writ of error. The 'cause then came up upon a case stated between the parties, and under the practice of that state having the effect of a special verdict. The case stated, brings into view the treaty of peace with Great Britain, and then proceeds to present the various laws of Virginia, and the facts upon which the parties found their respective titles. It then presents no particular question, but refers generally to the law arising out of the case. The original decision was obtained prior to the treaty of 1794, but before the case was adjudicated in this court, the treaty of 1794 had been concluded. The objection arises under the the construction of the 25th section above alluded to; which, as far as it relates to this case, is in these words: "A final judgment or decree in any suit, in the highest court of law or equity of a state, in which a decision in the suit could be had," "where is drawn in question the construction of any clause of the constitu tion or of a treaty," "and the decision is against the title set up or claimed by either party under such clause, may be re-examined and reversed, and affirmed," &c. "But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and imme diately respects the before mentioned questions of validity or construction of the said treaties," &c. The first point to be decided under this state of the case was, that the judgment being a part of the record, if that judgment was not such, as upon that case it ought to have been, it was an error apparent on the face of the record. But it was contended, that the case there stated, presented a number of points, upon which the decision below may have been founded, and that it did not, therefore, necessarily appear to have been an error immediately respecting a question on the construction of a treaty. But the court held, that as the reference was general to the law arising out of the case, if one question arose, which called for the construction of a treaty, and the decision negatived the right set up under it, this court will reverse that decision, and that it is the duty of the party who | would avoid the inconvenience of this principle, so to mould the case, as to obviate the ambiguity. And under this point arises the question, whether this court can enquire into the title of the party, or whether they are so restricted in their juridical powers as to be confined to decide on the operation of a treaty upon a title previously ascertained to exist. state of Maryland, and that decision was founded upon the idea that this court was not thus re stricted. But another difficulty presented itself: The treaty of '94 had become the supreme law of the land since the judgment rendered in the court below. The defendant, who was at that time an alien, had now become confirmed in his rights, under that treaty. This would have been no objection to the correctness of the original judgment; were we then at liberty to notice that treaty in rendering the judgment of this court. Having dissented from the opinion of the court below, on the question of title, this difficulty did not present itself in any way, in the view I then took of the case. But the majority of this court determined that, as a public law, the treaty was a part of the law of every case depending in this court; that as such, it was not necessary that it should be spread upon the record, and that it was obligatory upon this court, in rendering judgment upon this writ of error, notwithstanding the original If there is any one point in the case, on which an opinion may be given with confidence, it is this. Whether we consider the letter of the statute, or the spirit, intent or meaning of the constitution and of the legislature, as expressed in the 25th section, it is equally clear that the title is the primary object to which the attention of the court is called in every such case. The words are," and the decision be against the title," so set up, not against the construction of the treaty contended for by the party setting up the title. And how could it be otherwise? The title may exist, notwithstanding the decision of the state courts to the contrary; and in that case the party is en-judgment may have been othertitled to the benefits intended to be secured to him by the treaty. The decision to his prejudice, may have been the result of those very errors, partialities or defects in state jurisprudence, against which the constitution intended to protect the individual. And if the contrary doctrine be assumed, what is the consequence? This court may then be called upon to decide on a mere hypothetical case-to give a construction to a treaty, without first deciding whether there was any interest on which that treaty, whatever be its proper construction, would operate. This difficulty was felt, and weighed in the case of Smith and the wise unimpeachable. And to this opinion I yielded my hearty assent. For it cannot be maintained that this court is bound to give a judgment unlawful at the time of rendering it, in consideration that the same judgment would have been lawful at any prior time. What judgment can now be lawfully rendered between the parties? is the question to which the attention of the court is called. And if the law which sanctioned the original judgment, expire, pending an appeal, this court has repeatedly reversed the judgment below, although rendered whilst the law existed. So too, if plaintiff in error die, pending suit, and his land de scend on an alien, it cannot be contended that this court will maintain the suit in right of the judgment, in favour of his ancestor, notwithstanding his present disability. It must here be recollected, that this is an action of ejectment. If the term formally declared upon expires, pending the action, the court will permit the plaintiff to amend, by extending the term Why? because although the right may have been in him at the commencement of the suit, it has ceased before judgment, and without this amendment he could not have judgment. But suppose the suit were really instituted to obtain possession of a leasehold, and the lease expire before judgment, would the court permit the party to amend in opposition to the right of the case? On the contrary, if the term formally declared on, were more exclusive than the lease in which the legal title was founded, could they give judgment for more than facts? It must be recollected, that under this judgment a writ of restitution is the fruit of the law. This, in its very nature, has relation to, and must be founded upon, a present existing right at the time of judgment. And whatever be the cause which takes this right away, the remedy must, in the reason and nature of things, fall with it. When all these incidental points are disposed of, we find the question finally reduced to this-does the judicial power of the United States extend to the revision of decisions of state courts, in cases arising under treaties? But, in order to generalise the question, and present it in the true form in which it presents itself in this case, we will enquire whether the constitution sanctions the exerVOL. II. cise of a revising power over the decisions of state tribunals, in those cases to which the judicial power of the United States extends? And here it appears to me, that the great difficulty is on the other side. The real doubt, whether the state tribunals can constitutionally exercise jurisdiction in any of the cases to which the judicial power of the United States extends. Some cession of judicial power is contemplated by the third article of the constitution: That which is ceded can no longer be retained. In one of the circuit courts of the United States, it has been decided with (what correctness I will not say) that the cession of a power to pass an uniform act of bankruptcy, although not acted on by the United States, deprives the states of the power of passing laws to that effect. With regard to the admiralty and maritime jurisdiction, it would be difficult to prove that the states could resume it, if the United States should abolish the courts vested with that jurisdiction-yet, it is blended with the other cases of jurisdiction, in the 2d section of the 3d article, and ceded in the same words. But it is contended, that the 2d section of the 3d article, contains no expression of cession of jurisdiction: That it only vests a power in congress to assume jurisdiction to the extent therein expressed. And under this head arose the discussion on the construction proper to be given to that article. On this part of the case, I shall not pause long. The rules of construction, where the nature of the instrument is as certain, are familiar to every one. To me, the constitution appears, in every line of it, to be a contract, which, in legal language, may be denominated 3 A tripartite. The parties are the people, the states, and the United States. It is returning in a circle to contend that it professes to be the exclusive act of the people, for what have the people done but to form this compact? That the states are recognised as parties to it, is evident from various passages, and particularly that in which the United States guarantee to each state a republican form of government. The security and happiness of the whole was the object, and to prevent dissention and collision, each surrendered those powers which might make them dangerous to each other. Well aware of the sensitive irritability of sovereign states, where their wills or interests clash, they placed themselves, with regard to each other, on the footing of sovereigns upon the ocean; where power is mutually conceded to act upon the individual, but the national vessel must remain unviolated. But to remove all ground for jealousy and complaint, they relinquish the privilege of being any longer the exclusive arbiters of their own justice, where the rights of others come in question, or the great interests of the whole may be affected by those feelings, partialities or prejudices which they meant to put down for ever. Nor shall I enter into a minute discussion, on the meaning of the language of this section. I have seldom found much good result from hypercritical severity, in examining the distinct force of words. Language is essentially defective in precision, more so than those are aware of, who are not in the habit of subjecting it to philogical analysis. In the case before us, for instance, a rigid construction might be made, which would annihilate the powers intended to be ceded. The words are, "shall extend to;" but that which extends to, does not necessarily include in, so that the circle may enlarge until it reaches the objects that limit it, and yet not take them in. But the plain and obvious sense and meaning of the word shall in this sentence, is in the future sense, and has nothing imperative in it. The language of the framers of the constitution is, "We are about forming a general governmentwhen that government is formed, its powers shall extend," &c. I, therefore, see nothing imperative in this clause, and certainly it would have been very unnecessary to use the word in that sense. For as there was no controlling power constituted, it would only, if used in an imperative sense, have imposed a moral obligation to act. But the same result arises from using it in a future sense, and the constitution every where assumes, as a postulate, that wherever power is given it will be used, or at least used as far as the interests of the American people require it, if not from the natural proneness of man to the exercise of power, at least from a sense of duty, and the obligation of an oath. Nor can I see any difference in the effect of the words used in this section, as to the scope of the jurisdiction of the United States' courts over the cases of the first and second description comprised in that section. "Shall extend to controversies," appears to me as comprehensive in effect, as "shall extend to all cases." For, if the judicial power extend to "controversies between citizen and alien, &c." to what controversies of that description does it not extend? If no case can be pointed out which is excepted, it then extends to all controversies. |