miralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, and between a state and citizen of another state." Here the power might have a close; and by an amendment to the constitution, what remains might be struck away. This is " to controversies between citizens of different states, between citizens of the same state, claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects." It is not only to the inconvenience under the present system that the objection lies; but there is a radical objection at bottom to such extent of judicial cognizance, of the United States' courts under any arrangement, or organization: that is, the moral improbability to say the least of it, that the judges of these courts, can have a competent knowledge of the laws of the particular states, to enable them to decide on local questions according to the acts of the legislature, and the established construction thereon; or according to local usages, and practice. But it may be answered, that there can be no necessity of having a knowledge of the construc tion of the acts of the legislature; or of the practice of the courts, since not bound exclusively by these. Hoc gravamen est; this is the rule; it is the evil that they are not bound. It would at least be expedient that they should have a knowledge of these. That is impracticable. It is not the lucubrationes viginti annorum ; but an hundred years that could suffice for this. The life of man would not suffice, with the greatest application, to acquire such minute information of. the laws, usages and practice of each particular state in the union, as could satisfy a conscientious judge himself, that he did not err in deciding controversies, according to the laws, usages, and customs of each. And, it is not to be wondered at if under such disadvantage they would seem to have erred in many cases, or, at least, have not secured that confidence in their decisions, which their talents, and integrity, not under such disadvantages, would doubtless have secured with the bar, and with the country. It would seem to me that if attorney general Breckenridge, had brought forward his resolution for an amendment of the constitution, in the first instance, and before the abolition of the inferior courts established, of which I have spoken, it might have been carried in the senate, and adopted by the states; at least it would have been more advisable to have taken the sense of the people in this way. For if it had been thought advisable to have retrenched the judiciary power of the union in this way, there would have then, been no necessity for these inferior courts which had been so established, and the province of duty being lessened by the jurisdiction struck away, these courts could with more propriety have been abolished; and more especially as little or no business out of the sea-ports, and commercial towns, would have remained. Such amendment to the constitution must take place; or these courts in some shape, on the score of conveniency, at least, must be restored. Of Errors, as it would seem to me, in decisions of the Supreme Court of the United States. CUI bono, it may be said; of what use to review decisions; since it is the maxim, non ita refert quod sit lex, quam quod sit nota. The nota must mean settled; because what is unsettled, cannot be known. And it must be the effect of fluctuating determinations, that the law must remain uncertain, and therefore unknown. But it is with no idea of contributing a mite towards the changing a determination, or the principle of it, that this examination is undertaken. It would be absurd to suppose it. Even a judge of that court; or even the whole court, could not change the determination, though they might have it in their power to change the prin ciple; or, in other words, their opinion of what was the law in a like case. But of what use çan it be that an individual undertakes to think differently from what a court has decided? I cannot say that I can give any other reason than my ewn ambition, to let people see that I also have an opini on; and am capable of remarking, where there may appear to be error. But what other reason can be given in many cases of criticism? For instance, it is of no use to remark an historical error, in the divine poem of Milton, as in that verse; "When Charlemain with all his peerage fell Yet, the fact is, that Roland fought the battle; and Charlemain was not present, and neither fell there, or any where else; but died in his bed. The verse might be altered to meet the truth of history; and, at the same time, without spoiling the measure. But I have no idea that the printers will make the alteration in the next edition. However, will it not be pardonable, not only to have made the observation; but also to shew how the alteration could be made? Would it not read as well, and perhaps not be less poetical, to say, When all the peerage fell of Charlemain By Fontarabbia But it may be stiled presumption in me to attempt a remark upon a decision of the supreme court of the United States. I would admit this, did it not furnish an objection against all criticism, where the subject is of transcendant eminence and dignity: Thus, in the case of Milton as already mentioned; whose genius is superior to what mine can pretend to be; as far as "Thrice from the centre to the ethereal pole ;" or the orbit of the sun himself, "Nine times the space that measures day and night.” Yet it is allowable even in such cases, to speak of a speck which the microscopic eye of a mosquetto, can perhaps alone discern. It savoured of profanity in him who said, though he meant it but as wit, that had he been consulted in the formation of himself, he would have put the calfs of his legs before, that he might not break his shins.' But, of all things human, and beneath divine, it is lawful to hazard a correction. Having premised this, and taking up the reports of Cranch, I find the case of William Marbury v. James Madison, Secretary of State of the United States. 1 Cranch, 137. The first question that ought to have been made in this case, was, have inferior courts, a power given to them by the constitution, or the laws, to issue a mandamus? In the constitution there is nothing said about such a power in the one court or the other. Independent of the act establishing the judicial courts of the United States, neither supreme or inferior court had the power; unless we should suppose that the supreme court succeeded to the power of the court of King's Bench; being the highest court of the union, and it being necessary for the administration of justice, that such writ, which has been called a high prerogative writ, should issue. But the legislature of the union would seem to have thought that it was at least questionable, or that it had been questioned, whether such a writ could issue even from this the highest court. For by the act to establish the judicial courts of the United States, it is provided that the supreme court shall have power amongst other things, “to is sue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding offices under the authority of the United States." Was a law necessary to give such a power to the supreme court, and could an inferior court exercise it, without a provision specially giving it. It cannot be said to be impliedly given; for these courts themselves are made the subject of a mandamus to whom it is to issue; and it would be an inconsistency to say, if these courts refuse to do a thing, or to give redress, they might issue a mandamus to themselves in the first in stance. Or, in the case of other persons holding offices, which are the words of the act, is there any power given to them under the act to issue a mandamus? The supreme court shall have appellate jurisdiction from the circuit courts. But there must be original jurisdiction first given, before there can be appellate. Can any one suppose, for a moment, that any such high prerogative power would be given by the congress to an inferior circuit court? There is no such power given even to any of the higher courts in England. It is a prerogative of the sovereignty, and so called; and can issue only from that bench which controls all inferior jurisdiction; and where alone of all the courts, in plena majestate, the king himself, is supposed to be present. Can any one suppose then that a writ of such high and supereminent authority could be intended to be given, unless we were concluded by express words, from doubting of the trust; what is more to courts of inferior jurisdiction established by the act, under our republican government? Here, we may naturally suppose the citizen more jealous, of such writs of high prerogative. No; it never came into the head of any person before this decision, that an inferior court of the United States had the power to issue such a writ. The king's bench has the power to issue this writ of mandamus, to the court of common pleas, who, it might happen, might refuse to proceed to judgment, that a writ of error might be brought; or for other cause might be the sub⚫ject of the writ of mandamus; to the exchequer also. What did the congress mean more than to give a similar power over inferior jurisdictions to the supreme court of the union. The inferior courts of the union had a right to raise their heads, indeed, if it could be supposed that such a power was given to them. Even in their own case where they refused to do a thing, they must first, it seems, issue a mandamus to themselves, and decide upon it, before it could be brought be fore the supreme court, of the United States. This would be sitting as judges in their awn case, if the mandamus had been directed to them commanding them to do an act. If there is no original jurisdiction in an inferior court, there can be no apellate; for an appeal implies a decision from whence an appeal is made. But by art. 3, sec. 2, n. 2, "in all cases affecting embassadors, other public ministers, and consuls and those in which a state shall be party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have apellate jurisdiction." That must be in all other cases, where the inferior courts have original jurisdiction given them; for original and apellate are relative terms, and where the one does not exist, the other can have no place. The truth is that with regard to a mandamus, the |