amendments subsequently adopted in the constitution. In the eighth amendment, it is provided, that the accused shall have a right to a speedy trial, by a jury of the state and district in which the crime shall have been committed; a provision wholly superfluous and absurd, as relative to the state courts. So in the ninth amendment, providing that in cases of the value of twenty dollars, the right of jury trial shall be preserved, it will not be contended, that it relates to the jurisdiction of the state courts; as most of the state constitutions had, already, provided for the inviolability of jury trial, and the state governments always claimed and exercised the power to say under what limitations and restrictions the jury trial shall prevail in their courts. It is also to be borne in mind, that one of the last amendments to the constitution, which declares, that the judicial power of the United States, thall not be construed to extend to suits brought against a state, by citizens of another state, or of a foreign state, is confined to the federal courts, in exclusion of those of the states; for, if the state courts were also inhibited from this jurisdiction, the parties last mentioned would be left without any redress whatever, when aggrieved by a state! If then, in every other part of the constitution, which respects jurisdiction, the federal courts, alone, are contemplated, and if, in an important clause of the very section now in question, the restrictive construction is found to prevail, it would seem a natural consequence, that it should prevail, also, in the remaining part of that section.

If, in addition to these considerations, it be also recollected, that the constitution of the United States, in almost no other instance, acts through the governments of the several states, the probability will be increased, that it did not mean to act through them, or intermeddle with them, in the case in question. The great grievance complained of under the articles of confederation, was, that they acted only through the states, which states palsied the arm of the general government, at their will and pleasure. To remedy this evil, an entire new system was adopted, by which the general government acted directly upon the people. No instances are at present recollected in which the co-operation of the state governments is necessary, but for the purpose of electing a president and senators. In all other instances the governments are entirely separate and distinct: and every provision of the constitution, will be construed in reference to this feature of the government.

Bearing these principles in mind, let us proceed to inquire into the meaning of the second section of the third article of the constitution, so far as it relates to the case before us. That section is in the following words, viz.-" The judicial power shall extend to all cases in law and equity arising under the constitution, the laws of the United States, and treaties made, or which shall be made, under their authority," &c. That section of the constitution, follows immediately after another section which speaks only of the judicial power of " the United States," and which is thereby declared to be vested in one Supreme court and such inferior courts as congress might ordain and establish. When, therefore, the second section speaks of " the judicial power," simply, it means the judicial power of the United States, as contra-distinguished from that of the several states, and as vested in the Supreme court, and the inferior courts to be by congress established. It is consistent with every rule of fair construction, to transplant the words " of the United States," from the first section, into the second, and, thus transplanted, every possible pretence is done away, that the clause just recited any more relates to the judicial power of the several states, than does the clause immediately preceding it, which is expressly confined to the judicial power of " the United States." The same inference would result on general principles; for the general words of a constitution, are to be applied to its own institutions, in exclusion of those of another government. This construction, too, by keeping aloof from the state jurisdictions, will keep up and perfect the symmetry between this and every other part of the constitution, as I have already attempted to show; and be in perfect unison with the principles that each government contemplates, and only contemplates its own judiciary, and that the operations of the general government are in this, as in other cases, distinct from

those of the States, and are neither dependent on, nor intermingled with them.

It is here to be remarked, that the judicial power of the United States is to be determined by the suit or action being proper for the cognizance of their courts, and being actually instituted or brought therein. If brought or instituted in the courts of another government, though they may involve the construction of the constitution, laws or treaties of the United States they form a part of the judicial power of that government, and not of that of the United States. On any other hypothesis, the judicial power of the United States would be co-extensive with the limits of the world, on the principle that the lex loci prevails every where, in the case of

contracts.

This judicial power is to "extend to" all cases, &c. It is here proper to recollect that the government of the confederation had also a court or courts; but they had only a very narrow orlimited jurisdiction, [Articles of Confederation, art. 9, sec. 2.] and it was the object of the constitution to extend the jurisdiction of the federal courts, to be then established, beyond that of those which before existed. This word "extend" is fully satisfied, by being confined to the courts of the United States, although the courts of other governments, should also have a jurisdiction overthe same subjects. The word according to the best lexicographers, means to widen or enlarge; [See Johnson's Dictionary.] it has no sense, which goes to the exclusion of another jurisdiction. But for the previously limited jurisdiction of the federal courts, and which it was the object of this article to enlarge or " extend" the phraseology would probably have been that the courts of the United States shall "have jurisdiction in" all cases, &c. Had this form of expression been used, no doubt could possibly have existed, but that the jurisdiction of the courts of the states, would have been left untouched. So if the amplified and varied form of expression before mentioned had been used, namely; that the judicial power " of the United States," which is vested in one supreme court, and such inferior courts as congress may establish, and which courts shall have jurisdiction in all cases in law and equity, &c. no scintilla of doubt could possibly have remained, but that the clause would have been confined to the jurisdiction of the federal courts, in exclusion to that of the state courts.

But it is argued, that the power is granted to the supreme court, to control the judgments of the state courts, under the second clause of the second section of the third article of the constitution, which says, that " in all the other cases before mentioned," [two classes being excepted, in which the supreme court is declared to have original jurisdiction,] "the supreme court shall have appellate jurisdiction, both as to law and fact with such exceptions, and under such regulations, as congress shall make." Having endeavoured to show, as above, that the first and third clauses of this section, relate exclusively to the jurisdiction of the federal courts, and do not extend to that of the state courts; having, also, endeavoured to show, that every other part of the original constitution, and its amendments, is subject to the same restriction, it would seem to be a reasonable inference that this last and solitary clause should receive a similar construction. The general principle is, that a constitution settles the powers and arranges the jurisdiction of its own courts, and not those of another government; and although the convention had the power to affect, also, those of the states, this principle will still prevail, unless it clearly and legitimately appears to have been intended to be abandoned. The question then recurs, under the actual provisions of the constitution, was that instrument the settling the jurisdiction of its own courts, or those of a different government?

In order to elude the force of the principle just mentioned, it is contended that the courts of the several states are to be considered, quoad this case, as courts of the United States. • They are said to be, more emphatically when considered in relation to the courts of the United States, "parts of one whole;" (Federalist, passim) that is, that they are, quoad the case before us, a part of the courts of the United States. They became so, under the provisions of the judicial act, only after they had given an opinion in a certain way, whereas until they had given such opinion, or in event of their giving it the othe way, they remained the courts of the several states! If they are considered as the courts of the several states, then here is the plain case of the judiciary of one government, correcting and reversing the decisions of that of another. If, on the other hand, they are considered as courts of the United States, they become so, by implication, and without having been appointed, commissioned or paid by the United States, and without being impeachable by the United States. If the state courts can be thus converted into federal courts, it is evident, too, that con gress may effect their independence as state courts; and by throwing on them a mass of federal jurisdiction, bearing no proportion to the salaries they receive from the states, actually drive them out of office!-And whence does this implication arise, in the case in question? From the circumstance of the courts of the states, having, in the course of their ordinary jurisdiction, incidentally acted upon the constitution, laws or treaties of the United States; a circumstance which would equally make the Supreme court of Calcutta, a part of the judicial system of the United States, when enforcing the laws of this country in that. But this is not all-It becomes necessary, and by the like implication, for the courts of the states-even for the Supreme appellate courts of the states, to spread the facts upon the record, without which the courts of the United States cannot act upon the subject. This idea, though essential to the exercise of the appellate power, is utterly at war, both with the character of a supreme state court, as such, and with the right of the states to regulate the proceedings of their own courts. It was resolved by the Virginia legislature, in acting upon the report aforesaid, (Report, p. 38.) that the appellate jurisdiction given by the clause in question did not extend to criminal cases, depending even in the inferior federal. courts, notwithstanding the generality of the terms used, because jury-trial was secured in such cases, by the constitution, and was not a subject of appeal. This argument holds much more forcibly, in the case before us, both because the terms