shall be vested in one Supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish (not naming nor squinting at, the state courts).—Section the 2d-in the judicial powers of the courts, the jurisdiction seems to be exclusively confined to those to be ordained and established by congress-A second paragraph of the same section says "That in a.l cases affecting ambassadors and other public officers, consuls, &c. the Supreme court shall have original jurisdiction.-In all other cases before mentioned the Supreme court shall have appellate jurisdiction, both as to law and fact; with such exceptions, and under such regulations, as the congress shall make"-which exceptions and regulations must, I conceive, relate to such inferior courts as, by the first section of the article, congress may, from time to time, ordain and establish, and cannot in my apprehension, by fair construction, have relation to the state court; there having been no power delegated to congress, to interfere, or meddle with them; and which do not appear by any expression in the instrument, to have been in the contemplation of the framers of the constitution:--for if they had been so, and the state courts were intended to have been subject to the appellate jurisdiction of the Supreme court of the United States, a short sentence, or a very few words, would have put the matter out of all doubt:— and I cannot presume that,--when the collected wisdom of the several states was convened, and, for many weeks, deliberated on a proper system of jurisprudence, for the government of the union,--so important a matter, had the state courts been in contemplation, could have escaped the notice of them all; and have been left to uncertainty and conjecture!

It appears to me then, that the 25th section of the judicial act of congress, not being made in pursuance of the constitution, so far as it respects the case before us, was not justified by the constitution. But admitting for a moment, that I may be mistaken on this point, I proceed to inquire,

II. Secondly, whether this case is comprised within the provision of that section? The enacting words of the section are, "that a.final judgment 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 validity of a treaty, or statute of, or an authority exercised under the United States, and the decision is against their validity, may be re-examined, and reversed or affirmed in the Supreme court of the United States, upon a writ of error, &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 immediately respects the before mentioned questions of validity, or construction of the said constitution, treaties, statutes, commissions or authorities in dispute." The only article enumerated in the above recited clauses brought in question in the case of Hunter vs. Fairfax, on which the mandate under consideration was founded, was the validity of the treaty between the United States and Great Britain, in the year 1783—and does it appear on the face of the record that the decision was against its validity?—In my apprehension it does not so appear; for the very reverse was the fact: and if that cause had depended altogether on the validity of the treaty, the judgment, on the appeal to this court, would have been in affirmance of that of the court below, in favour of Fairfax, or rather, of his heir Philip Martin, the appellee.

It is worthy of remark, too, that when Denny Fairfax was impleaded by Hunter in the district court of Winchester, he had an election to remove the cause into the nearest circuit court of the United States; of which privilege he did not think proper to avail himself, but chose to rest his cause with the

state courts.

act of

It appears to me, first, that the 25th section of the judicial congress, so far as it respects the case before us, is not justified by the constitution:-and secondly, that this case is not comprised within the provision of that section.-I am of opinion, therefore, upon both points, that it is inexpedient for this court to obey the mandate under consideration.-And that is the unanimous opinion of the court.

Nota.--This case was argued in the Supreme court of appeals on Thursday, 31st March, and on the first five days in April, 1814; and the decision was pronounced in December, 1815.

At the next term of the Supreme court, United States, a writ of error founded on this judgment was argued. The court asserted the constitutionality of the 25th section of the judicial act in its fullest extent, that this case came within its provisions, and was therefore a fit subject for their jurisdiction. In consequence of the disobedience of the court of appeals to the mandate which had been issued before, they proceeded, in the exercise of the discretionary power allowed by the act . c. to a final decision of the cause, and award of execution. They decided that when the validity or construction of a treaty of the United States is drawn in question, and the decision is against its validity, or the title specially set up by either party, under the treaty, this court has jurisdiction to ascertain the title and determine its legal validity, and is not confined to the abstract construction of the treaty itself. It was also determined that the return of a copy of the record under the fiat of the court, certified by the clerk, and annexed to the writ of error, is a sufficient return in such a case; and further, that it need not appear that the judge who granted the writ of error did take a bond upon issuing the citation, as required by the 22d section of the judiciary act. That provision is merely directory to the judge, and the presumption of law is, until the contrary appears, that every judge who signs a citation has obeyed the injunctions of the act. 1 Wheat. 305.

AUTHORS OF THE FEDERALIST.

THE Federalist having been frequently quoted in this journal, it is deemed proper to copy the following bibliographical information from a literary miscellany.

"MR. OLDSCHOOL,

"The executors of the last will of general Hamilton have deposited in the public library of New York a copy of

"The Federalist," which belonged to the general in his lifetime, in which he has designated, in his own hand-writing, the parts of that celebrated work written by himself, as well as those contributed by Mr. Jay and Mr. Madison. As it may not be uninteresting to many of your readers, I shall subjoin a copy of the general's memorandum for publication."

Nos. 2, 3, 4, 5, 54, Mr. Jay.

Nos. 10, 14, 37, to 48 inclusive, Mr. Madison.

Nos. 18, 19, 20, Mr. Hamilton, and Mr. Madison jointly-all the rest by Mr. Hamilton.'

Port Folio.

DELAWARE-S. c. SUSSEX, 1793.

COLLINS, V. HALL.

A negro cannot be a witness in any case where the parties are whites.

UPON the trial of this cause after several witnesses had been examined upon the part of the plaintiff, one Levin Thompson, was offered as a witness upon the same side. Bayardfor the defendant, objected that the witness being a negro, was rendered incompetent by the act of assembly, passed 3d February, 1787, the 8th sect. of which enacts "That no slave manumitted agreeably to the laws of this state, or made free in consequence of this act, or the issue of any such slave, shall be entitled to the privilege of voting at elections, or of being elected, or appointed to any office of trust or profit, or to give evidence against any white person, or to enjoy any other rights of a freeman, other than hold property, and to obtain redress in law and equity for any injury to his or her person, or property."

It was hereupon proved, upon the part of the plaintiff, that Thompson was a freeman, that his mother and grand-mother had been free, and that they had lived and that he came from the state of Maryland.

The counsel for the defendant contended that the witness was still incompetent. He said that slavery being permitted by the

laws of the state, it was a necessary consequence that the condition of slaves should be discriminated from that of masters. A plain line was therefore drawn between them by the laws. Their interest and rights were different and frequently opposed; and it was, therefore, necessary to withhold from slaves some privileges which it was possible in many cases they might exercise without abuse, or perhaps to the advantage of society. He admitted there was nothing in a negro which naturally disqualified him from giving as credible and instructive evidence as a white person, but the law having bestowed unequal rights and favours upon the whites, had rendered them objects of jealousy and enmity to the blacks, and therefore, as long as the relation of master and slave was suffered to continue, it was sound and essential policy to communicate to the blacks no rights which might endanger the safety of the whites: that the low and degraded situation of slaves debased their minds, and weakened or effaced those principles which give credibility to the testimony of a witness. Slavery being the general condition of the negroes, and the connexions and society of free blacks, consisting principally of slaves, the same policy which would exclude slaves extends to free blacks. Upon such grounds was the 8th section of the act of 1787 made, which embraces, upon a fair construction, the case of this witness, though his mother and grand-mother were free, yet the presumption is, that he is the issue of a slave, as slavery was the universal state in which negroes were brought into this country. Though the witness became free by the laws of Maryland, yet he is within the spirit of the act, as there is the same reason for his exclusion, as that of those freed by the laws of this state. It would be absurd and contradictory in practice to admit a free negro of Maryland, and exclude one of Delaware.

Upon the other side it was argued by Vining for the plaintiff, that the law should be strictly construed as it was founded on an unjust and absurd principle.

The blacks are as competent by nature, and should not be rendered less so by law to give evidence than the whites. Becoming freemen the common rights of citizens should be ex