A consideration of the foregoing extracts, it is maintained, shows the following points to be correct, First that at one time the Framers decided that there should be only one judicial tribunal of the Union, to which as a supreme court appeals from the state judiciaries should be made in litigations of national cognizance, and that for the mass of such litigations state courts should be tribunals of first instance. This would have been the judicial system of the constitution, if Rutledge's motion had been adhered to. Second that a jurisdiction of the U. S. courts, which would be absolutely exclusive of any jurisdiction of the state courts as to all possible federal questions, cases, causes, suits, processes, points and rights, would necessitate a positive and actual establishment of a full system of inferior courts of the United States in the body of the constitution itself; a thing which the Framers expressly avoided. Third that the system actually adopted is a media sententia between the two foregoing; which system is one by which every inferior court is ordained and established by legislation found in some act of Congress and not in the constitution itself. This system was originated by Dickinson and may be called by his name.* Fourth: that whenever the judiciary of a state should adjudicate a litigation which is claimed to be within the terms of paragraph 2. VI., and should refuse to be bound by the constitutional text or by the U. S. law or treaty invoked, an appeal was intended to lie to the U. S. Supreme Court. No. 3. Of certain views of C. J. Marshall on pages 376, 377 of 6 Wheaton, which here require consideration. If Chief Justice Marshall's views on pages 376 and 377 of 6 Wheaton be correct, what the Framers refused to do, as * How much of the constitution may be traced to an origin in Dickinson's mind, is a most interesting question. Perhaps, a full answer may show that a very great part of it may be traced to such an origin. well as what they resolved to do, ought to be considered, in order to fully appreciate their intentions concerning the appeals in question. On those pages of the opinion in Cohens v. Virginia, he lays great stress upon the first two points urged by the defence against the jurisdiction of the court. They were, first, that a state was defendant and, second, that no writ of error lies from the U. S. Supreme Court to a state court. He strenuously denies the correctness of these points and observes: "The questions presented to the court by the two first "points made at the bar are of the first magnitude, and "may be truly said to affect the Union. They exclude the "inquiry, whether the constitution and laws of the United "States have been violated by the judgment which the "plaintiffs in error seek to review; and, maintain, that, "admitting such violation, it is not in the power of the gov"ernment to apply a corrective. They maintain, that the "nation does not possess a department capable of restrain"ing peaceably, and by authority of law, any attempts "which may be made, by a part, against the legitimate "powers of the whole; and that the government is reduced "to the alternative of submitting to such attempts, or of re"sisting them by force. They maintain that the constitu"tion of the United States has provided no tribunal for the "final construction of itself, or of the laws or treaties of the "nation; but that this power may be exercised in the last "resort by the courts of every state in the union.. That the "constitution, laws, and treaties may receive as many con"structions as there are states; and that this is not a mis"chief, or if a mischief, is irremediable." Marshall thus asserts the existence of a dilemma. One horn is department of government proceeding peacefully in the cases in question. Practically this means under the constitution appeals from the state judiciaries to the U. S. Supreme Court in such cases. The other horn is the whole (i. e. the union) using force against a part (i. e. a state) in the cases in question. If Marshall's view be correct, the Framers were substantially in such a dilemma as to the cases in question: that is to say, a dilemma, one horn of which required them to decide upon a department of government proceeding peaceably either by legislative or by judicial power, while the other horn required them to decide upon the union proceeding by the use of force against a state. After the rejection of the legislative negative, they were not merely substantially, but formally, in it. Cohens . Virginia was decided in 1821, that is to say, after the publication of the Journal of the Convention, but prior to that of Madison's report of its debates. It is, therefore, necessary to examine those debates in connection with the journal for any light they may throw upon Marshall's dilemma. No. 4. Further consideration of the Framers' debates and proceedings, made requisite by the said views of Marshall. The two measures for meeting the difficulty of conflicts between the laws of the Union and those of the states, upon which the Framers' views have been rehearsed, were the legislative negative power and that actually adopted in paragraph 2. VI. These two measures, however, by no means cover the whole ground considered by the convention. Neither Patterson's nor Randolph's plan relied simply on one of the measures aforesaid. Each backed the operation of its respective measure with another proposed institution which was common to both. This institution was federal execution by the Union against any state violating the new Articles of Union in any casus foederis. That is to say, if any state should oppose the judicial application of the legislative derogation in one plan, or the legislative exercise of the negative power in the other, the Union could proceed by federal execution against such state to secure the fulfilment of its obligation as a member of the Union. One of the clauses of Randolph's 6th resolution declared that the national legislature ought to be empowered “to call "forth the force of the Union against any member of the "Union failing to fulfil its duty under the articles thereof.”* On May 31st., this clause was considered. Madison was apparently the only speaker, saying that "he hoped that "such a system would be framed as might render this re"source unnecessary, and moved that the clause be post"poned." This motion was agreed to unanimously and the measure was in substance, though not in form, definitely rejected. The Framers did not take long to act thus upon the heal of federal execution against a state. One reason for such promptness was, undoubtedly, the fact that the proposal of such an institution had been long before the country. The origin of Randolph's federal execution clause is to be found in the plan of a confederation of the United States, which was submitted in 1778 to the legislature of South Carolina by William Henry Drayton. The 8th article of Drayton's plan prescribed that in case any state should in any respect violate the proposed articles of confederation, "the Congress shall, within one year thereafter, declare such state under "the ban of the confederacy, and by the utmost vigour of "arms forthwith proceed against such state, until it shall "have paid due obedience, upon which the ban shall be ta"ken off."+ 66 The use of the term "ban" in the foregoing is alone sufficient to show that Drayton's model in drafting his 8th article was the public law of the then German empire. Reference by Madison in the convention to the ban of the German empire will be found in Elliot V. 210.§ In the present German empire a similar institution, that of federal execution against a state, is expressly provided for. Article 19. of the existing constitution of that empire is thus translated by the writer: "If the members of the federation "do not fulfil their constitutional federal duties, they can "be held thereto by way of execution. This execution is *Journal, p. 68. † Elliot V. 140. Niles Principles and Acts of the Revolution, ed. 1876, p. 368. "to be decreed by the federal council and done by the "emperor." * It may be added that the members of the federation are the several states of the empire and that the execution is frequently termed federal execution.† In connection with the term "execution" thus used in a constitution written in 1871, Mason's remarks on June 20th, 1787, (Elliot V. 217) in the Framers' convention upon the subject of "military execution," may be referred to. Mason's remarks and Drayton's 8th article, taken together, show that the words ban, and execution have both been used in America in the same federal sense as the corresponding words Acht and Execution in Germany. It may be added that federal execution against a state is a well known German institution, of which other examples may be given. It existed in the former Germanic Federation both in theory and practice. Under the operation thereof was made "the "Ordinance for Federal Execution" of August 3d, 1820 (Bundes-Executionsordnung). § It also existed in the North German Federation, the predecessor of the present federal empire. By the North German constitution "the "execution can be extended unto sequestration of the par"ticular land and of its power of government." The date of this provision was 1867.|| Federal execution by armed process against a state in certain casus foederis was also proposed by Patterson's plan of new articles of the old confederation. The 2d paragraph of his 7th resolution relates thereto, and has been previously quoted. It provides that "if any state, or any body of "men in any state," shall oppose or prevent the carrying into execution of federal acts or treaties, the federal executive shall be authorized to call forth the power of the con * See the text of constitution in L. von Roenne's Verfassung des Deutschen Reiches, ed. 5th, p. 84. † See von Roenne's cited work, index, under Bundesexecution and Bundesstaaten. Cf. Weiske on Acht, in article Bann. ? L. von Roenne: Staatsrecht des Deutschen Reiches, ed. 2, vol. I, p. 72, note. L. von Roenne's first cited work, note on p. 84. ¶ Page 314 ante. |