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adopted by general usage or recognized by writers? But no decision even in the English courts; save that of Hughes and Cornelius, took place before the period of our revolution. That of Mansfield in Bernardi vs. Matteaux as has been said, was after the revolution. No decision has taken place in our own courts from the period of our emigration, until the period of our revolution, nor since, extending, or sanctioning this doctrine of the conclusiveness of a sentence of admiralty in any case, much less to the extent here contended. And if it did not make a part of the common law, and is introduced under that term by the legislative act after the adopting our first state constitution "that all laws in force at the time of making, &c. shall continue;" what foot-hold have we in applying this late doctrine of the English courts? more especially when from the decisions of foreign courts of admiralty in matters of capture, all ideas of justice have been lost, and with regard to French captures and condemnation even in the opinion of the English courts themselves: in which we agree with them, that at certain periods, libelling and condemnation were the same thing, in the French courts. But we add, in the English courts of admiralty also. There were the forms of justice, but not the substance. We had monitions, to save appearances, and even had appeals; but it depended on the order and temper of the government from time to time, what chance of liberation. These things being so, and from the nature of things they will always be so, can it be a matter of sound discretion in our courts to extend a dubious construction, or doubtful doctrine to our jurisprudence?

The United States v. Judge Peters. 5 Cranch, 115.

WOULD not this case seem to have presented an occasion, where it became necessary for the supreme court to exercise an original jurisdiction in issuing a mandamus. may be said, that, in those cases "in which a state shall be a party, the supreme court shall have original jurisdiction." But in this case there was no state nominally a party, nor could the court know the state of Pennsylvania, the state suggested to be a party, as being in interest before the court. An amendment to the constitution had declared," that the judi

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cial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." But it was laid down by the court, chief justice Marshall's opinion, 141," that the state of Pennsylvania had neither possession of, nor right to, the property on which the sentence of the district court was pronounced; and since the suit was neither commenced nor prosecuted against that state, there remains no pretext for the allegation that the case is within that amendment of the constitution which has been cited; and consequently the state of Pennsylvania can possess no constitutional right to resist the legal process which may be directed in this case." The district court had not refused a mandamus to themselves; for it would have been absurd to have asked it. There could have been, therefore, no appeal from their judgment whether or not it ought to issue. For it was this court that refused to do an act, the issuing an attachment. It was original in the supreme court; and in the face of the case of Marbury v. Madison, the mandamus was issued. I do not say the court erred in this case; but that in the case of Marbury v. Madison, they erred; and ought to have exercised an original jurisdiction in issuing a mandamus.

The state of Pennsylvania was incidentally at least, and in my opinion, substantially concerned. But I do not enter into this question, having had it in view only to shew that the court did in this case exercise an original jurisdiction in issuing a mandamus.

The controversy was alarming at the time, and could not but distress every good citizen. As to the state being the real party interested, and substantially concerned, I subjoin in a note, a publication on that, side of the argument, and which appeared after the business was closed, in the Democratic Press of the 15th March, 1810.

It is a point to which sooner or later we must come; resistance to the jurisdiction of the federal courts, unless by an amendment to the constitution, the necessity of it is superceded. For

it is not to be supposed that these courts will not usurp; not that I attribute to the individuals who compose them, other dispositions than those common to the nature of man. But place any one in

authority, and it will be natural for him to wish to extend his province. In the English courts, it is thought to be an excellence; and it is even laid down as a characteristic of a good judge, "to enlarge his jurisdiction." This is a maxim which has been attempted to be qualified, by a substitution of "to enlarge justice." But that this could not be the original maxim, is evident, from the absurdity of talking of enlarging justice. For in that case, it would become injustice. The meaning of the maxim is, that it is not the part of a good judge, to be squeamish in determining the extent of his cognizance. And in fact, in the courts of England, they have not been squeamish. The court of King's Bench, is in strictness, a criminal court; yet by a fiction has drawn to itself the jurisdiction of matters of meum and tuum, which were originally the exclusive subject of the cognizance of the common pleas. We know the controversies that have existed on these heads, between those courts; as well as between the courts of common law in general, and the court of Chancery, in matter of jurisdiction. But this controversy can come to no dangerous result in that country; where they have an appeal; or a writ of error to the house of lords, where the question can receive an ultimate determination; this, not by the courts, claiming the jurisdiction; but by an independent tribunal; this tribunal, not perhaps, so well informed as either of the respective courts, claiming jurisdiction; but not having their opinions pre-engaged or their passions embarked in the controversy so that in the opinion of the people being more remote from bias, they are more likely to give satisfaction.

We have seen a late controversy in the state of New-York, between the supreme court and the jurisdiction of the chancellor in a matter of contempt.* The writ of error or appeal, I forget which it was, lay by the constitution of that commonwealth, to the Senate of the state. This tribunal not perhaps, correctly; but to the public satisfaction, because an independent tribunal, determined against the chancellor's authority; though it had been sanctioned by the opinion of the majority of the supreme court. Where a question of jurisdiction arises, there never will be satisfaction by a determination of the tribunal itself which claims the jurisdiction. And we know that the giving satisfaction, is a matter of

The Commonwealth v. Van Ness.

much moment to the peace of the community, in the administration of justice. Hence it was, that in forming the federal constitution, there was no point upon which the ablest members of the convention, were more at a loss, than upon this, of the jurisdiction of the federal courts. After all, it was considered as a matter which must be left in a great measure, to future regulation; and was a principal ground of that clause of the constitution, which provides for an amendment.

It was impossible to foresee, perfectly, how this wheel would move; or what necessity there might be for the enlargement of the contraction of it. If the constitution had remained as it was, the judicial power of the union, extending to a case where a state was a party, there would have been less difficulty in ascertaining, the constitutionality or legal exercise of the power, there being no exclusion. But the amendment to the constitution of the United States necessarily introduced a difficulty, in all cases where a state might allege itself a party, the plea to the jurisdiction being made to the very power whose jurisdiction it was the object of the amendment to exclude. It is thus, that in the alteration of any structure or machine, an alteration of more is required than the particular part; and this, in order to adapt the proportions of the other parts to that which is altered. The amendment of the constitution in the particular in view, ought to have carried with it, the establishment of some authority to determine in what cases "the state was a party." This authority ought to be independent of that tribunal which was to take cognizance of the trial, supposing it to be a case where the state was not a party. This was a great omission. Of what use to exclude a jurisdiction, and at the same time to leave it to itself to say whether it was excluded? Admitting that it may be some check on the discretion of the power; yet it can constitute no certain bar. The state independency which was in the view of the amendment, is not secured in an effectual manner; but still subject to the federal judiciary.

It will be said what amendment could be thought of: what practicable. The most convenient that occurs to me to think of, and the most advisable to adopt, would be the Senate of the Union. These consisting of an equal representation of the states; interested equally in the conservation of their independence, would be the safest and most natural tribunal before whom a question of the state sovereignty could be brought. Without some such tribunal, what is a state to do in case of federal usurpation? If a municipal court usurps jurisdiction, it is justifiable to resist the process.

It is a principle of law, that the process of a court having no jurisdiction of the case, is not merely voidable, but absolutely void. The officer with the process in his hand is a tresspasser; and may be resisted. Who is to judge whether the court has jurisdiction? The individual interested has a right to judge for himself. No man can question his right, but it must be at his peril. The state sovereignty, under this amendment, is placed as an individual in the union of the states. Has not the state a right to judge as an individual would have, of the jurisdiction of a court from which process issues? But it must be at its peril. I agree; and this proves that it must be the state sovereignty itself, that alone can take upon it to determine when and where its sovereignty has been invaded; and where it ought to resist. It must be a question of state decision, and no authority is competent to decide so as to act in consequence of a decision, but the state itself.

This proves that the judiciary of a state, being but a branch of the government, cannot be competent to decide on the jurisdiction of the United States courts; so as to liberate on a habeas corpus; for this would be drawing with it, an opposition to the laws of the United States by an act of the judiciary; and would be admitting a power to involve the state in war, without the knowledge or consent of the sovereign power. Posse against posse, would be the same thing as a levied force, on the side of the executive of the state; and that of the union.

Had the State, in the case of Olmstead a right to decide for itself, on the jurisdiction of the United States? What doubt can there be of this? Has an individual a right to judge for himself, of the jurisdiction of a court to which he is called to answer ? Doubtless. There is no lawyer, or law book, that will deny this. But it must be at his peril that he undertakes to decide. It will be the expediency that will be the only question. It will not be advisable perhaps where the court, whose process he undertakes to dispute will have a right to decide on his plea. He must look to the consequences, and count all the costs. In a community where his defence may come before a different tribunal, the principle not only holds of a void process; but it may be carried into practice, and acted upon by the people; it must be a clear case indeed, that will induce a man to resist where he means to insist upon the want of cognizance in the tribunal, from whence the precept may issue. He will suffer much, before he will venture to kill or wound in opposition to the writ. The like prudence will be observed on the part of a sovereign state, who is as an in

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