this construction is fortified by other considerations. The appellate jurisdiction is given both as to law and fact, and without power in congress to regulate the proceedings in the state courts, if extended to those courts, would be impracticable, according to the common law rule of trial, which prevailed in most, if not all, of the state courts.

An appeal from the facts would be impossible, without a reexamination of the witnesses from remote distances, or by depositions, in violation of the practice in most, if not all, of the state courts. The 9th article of the amendments to the constitution, furnishes additional light on this view of the subject. Plainly referring to the courts of the United States, it declares that, at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. The objects of this amendment are, first, to preserve the trial by jury in the federal courts; and, secondly, to take from those courts the power of re-examining any fact, tried by a jury, otherwise than according to the principles of the common law. The two provisions, taken in connexion, as they are found in the article, exclude the idea of the relation of either of them to the state courts; a circumstance of considerable weight, when it is considered that one of the objects is to regulate the proceedings in the federal courts founded on the appellate power both as to law and fact, derived from the 3d article before referred to. I conclude, therefore, that neither from the letter, nor from a view of any practicable result, can a construction be given to that article which could extend the appellate jurisdiction of the Supreme court to the state courts. My confidence in the correctness of that conclusion would be somewhat diminished, if I could possibly foresee all of the dangerous consequences that have been anticipated by the counsel who contend for the authority of the Supreme court. The power which is given to congress to ordain and establish inferior courts, was evidently intended to enable the national government to institute in each state or district of the United States

a tribunal competent in the determination of all matters of national jurisdiction within its limits, whenever deemed necessary by congress.

To have relied on the state authorities, as the means of exercising its most essential powers, would have totally changed the character of the national government, and reduced it to a state of imbecility little short of that of the former confederation. The great and radical vice in that system was in the principle of legislation for states or governments, as contradistinguished from the individuals of whom they consist. On a nearer view of the present system, it will be found to have escaped the enfeebling consequences of that principle; for though, in relation to the objects and limitations of its powers, and to the sources from which it derives those powers, it may be deemed a federal government; yet, in relation to the objects on which it operates, it is certainly a national one. Legislating for individuals, it contains, within itself, [see the Federalist] every power requisite to the complete execution of the trust confided to it, free from every other control, but a regard to the public good: and the sense of its constituents. The argument, then, that, unless the state courts admit the right of appeal to the Supreme court, the great rational objects of the federal government will be unattainable, loses all its force. If it were true, that the cases of national jurisdiction enumerated in the constitution could be finally and conclusively decided in the state courts, without power in the general government, through its own courts, to take jurisdiction of those cases either before or after those decisions, as it may be important to the nation, there would be some cause for alarm-but the foregoing remarks lead to no such conclusion.*

* The effect of the extension of the appellate power of the Supreme court to the state courts, will be found on a slight consideration to be more repugnant to the federate character of the national government than is at first supposed: it will give to it a strong feature of consolidated government in the administration of the laws and acts of the federal government. On the one hand, whilst the government of the United States will operate more eebly in the exercise of its constitutional powers, through organs not di

The principle on which the state courts take jurisdiction of the cases enumerated in the constitution, is common to all courts having jurisdiction of the controversy before them. They decide in conformity to the law of any government that may come in question.* This principle does not deny to the federal government, in common with other governments, through its own courts, to decide the same case where the parties are within its jurisdiction. Without the means of enforcing and giving, to its treaties, its laws, and its acts, an uniform construction, it would be incompetent to attain the great objects of its institution. Moving within the circle of its constitutional powers, its authority will be exercised, in a great degree, without the range of the state authorities. The difficulty which presents itself to the operation of the general and state governments, on the same objects, has been felt in many cases: but it is one which grows out of the system itself, and, without a change of that system, cannot be entirely obviated.-That it may be much diminished by a prudent exercise of the powers appertaining to each, has been proved by experience. Legislating for individuals who are equally the citizens of the

rectly under its control-On the other hand the state courts will be made the instruments of encroachment on state rights, in a way to give greater force to violations of the federal compact, than if the general government committed those violations through its own organs. The revision of the judginents of the state courts, by way of original jurisdiction in the federal courts, will be unaided by the co-operation of state adjudications, and leave to the people, uninfluenced by state authority, an opportunity better adapted to the impartial investigation of the constitutionality of federal adjudications.

* The duty imposed on the judges of the several states, by the 6th article of the constitution, to respect the constitution and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, as the supreme law of the land, adds nothing to the jurisdiction of the states courts over this subject.-It may authorise the federal courts, when the judgments of state courts come before them, to allow to those judgments less force than is generally accorded to the judgments of foreign courts, for the consequence of which, the federal government is not responsible.

general and state governments, the authority of that government must be considered as paramount, which under a fair construction of the constitution has the conclusive power to act or to legislate on the subject. The oath to support the constitution, with the strong responsibility to those from whom all power is derived, seem to be the only sanctions against the exercise of power not given by the people. That oath, which is prescribed by the sixth article, imposes no subordination upon those to whom it is administered-it is common to all who exercise power under either government. The obligation which is imposed by the same article on the judges in all the states to respect the constitution, the laws and all treaties which shall be made under the authority of the United States furnishes no ground of objection to the preceding remarks. It cannot be construed to give to the Supreme court power to enforce the responsibility of the state judges under that obligation. The article implies nothing more than it declares; that is, that the constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land. On the contrary, it leaves to the state judges the right to inquire whether the laws, treaties, &c. have been made in pursuance of the constitution. Standing on the ground of that article alone, if there was no other, I should feel myself compelled to inquire whether the 25th section of the act of congress, under the authority of which the mandate in question was awarded, is in pursuance of the constitution, or repugnant thereto.-On the ground of mere implication, or doubtful inference, to decide that a law is unconstitutional, would at all times be highly improper. The judge ought to be deeply impressed that the law in question is in direct opposition to the plain meaning of that instrument; and, feeling that impression, he would be unmindful of the great trust confided to him, and of the sacred obligations of duty, if he were to shrink from the decision. Under the full influence of that impression, I am constrained to declare it to be my opinion that so much of the 25th section of the act of congress, in pursuance of which the

mandate in this case was issued, as requires of this court to exercise the judicial powers therein prescribed, is a violation of the constitution; that the writ of error was improvidently allowed by one of the judges of this court; and that obedience to the mandate ought to be refused.

Roane, J.-This case comes before the court, upon a special mandate from the Supreme court of the United States. That mandate recites a judgment of that court, which reverses a judgment of this court, and commands the judges of this court, to carry the reversing judgment into execution. That judgment was rendered upon a writ of error, sued out to the judgment of this court, under the provision of the 25th sect. of the judicial act of the United States, [Laws of United States, vol. i. p. 64.] upon the ground, as is supposed, that this court had decided against a treaty, or a right claimed under a treaty. The judgment of this court had reversed a judgment of the district court of Winchester, rendered in favour of Denny Fairfax, under whom the appellee, (Martin,) claims, in an action of ejectment, brought against him by the appellant, and had re quired the court below, to carry the same into execution. In that action a case was agreed between the parties, in which the defendant relied upon the treaty of peace between the United States and Great Britain: but that treaty constituted only one link of his defence or title. There are also many other distinct facts, or findings, comprised in the case agreed, each of which is, perhaps also divisible into other facts or findings; and as the judgment of this court, as appearing on the record, is merely general, and does not state the particular point on which it was rendered, it may be,--as the fact really was, in relation to the judgment of this court,--that neither judgment was rendered upon the construction of the treaty.

The question which now arises, upon this mandate, is of the first impression in this court, and of the greatest moment.-The court, consequently, invited the members of the bar to investigate it, for its information; several of whom, in addition to the appellee's counsel, discussed it, accordingly, in a very full and able manner: since which, it has received the long and