have had it in their power to do this, because the cases occurs red in that court, and not in this. The portrait is exhibited as it is, because the man, and not the lion, was the painter. (See Esop's Fables.) It is not to be denied, that the jurisdiction now in question has been entertained by the Supreme court, in sundry instances: But that jurisdiction has gained ground by a piece-meal, and has never received the solemn, and deliberate discussion, and decision, of that tribunal. If has been adopted, also, under a latitude of construction, and discretion, in the court, which is at war with the idea of limited and specified powers, in the general government. That decision was coeval, as I have already said, with sundry acts of the national legislature, passed upon the same principle: but while those acts have been scouted, and repealed, by general consent, under a more correct view of the constitution, the decision has been suffered to remain, and to be acted on as a precedent!

I have already said, with the Virginia legislature, (report, p. 4.) that the powers of the federal government result from the compact, to which the states are parties; are no further valid, than as they are authorized by the grants enumerated in the compact; and, I will now add, by the same authority, " that in case of a deliberate, palpable, and dangerous exercise of powers, not granted by the said compact, the states, who are the parties thereto, have the right, and are in duty bound, to arrest the progress of the evil." (Report p. 4.)-While the states in their legislative, or even original character, are authorized to interfere, in cases of the palpable nature just mentioned, the courts of the states are also authorized to check the evil when it occurs, in the exercise of their ordinary jurisdiction.--Thus in the before mentioned case of the commonwealth us. Cobbet (3 Dall. 342.) the Supreme court of the state of Pennsylvania, solemnly and unanimously refused to permit the defendant, who was an alien, to remove a cause in which he was sued by the state, in its Supreme court, into the Circuit court of the United States, notwithstanding the comprehensiveness of the words of the twelfth section, of the judicial act, upon this subject. That court, after declaring, in the most explicit

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terms that all powers not granted to the government of the United States, remained with the several states; that the federal government was a league, or treaty, made by the individual states, as one party, and all the states, as another; that when two nations differ, about the construction of a league, or treaty, existing between them, neither has the exclusive right to decide it; and that, if one of the states should differ with the United States, as to the extent of the grant made to them, there is no common umpire between them, but the people, by an amendment to the constitution, went on to declare its own opinion on the subject, and overruled the motion, on the ground that the sovereign state of Pennsylvania could not on account of its dignity, be carried before that court.

One of the appellee's counsel was pleased to call this decision, a dictum of chief justice M'Kean's.-I must be excused for saying it is no dictum, nor is it the sole and individual opinion, of that respectable judge. It is the solemn and unanimous decision, and resolution, of the Supreme court, of one of the most respectable states in the Union. It contains no principle which every friend to the federative system of government, will not readily suscribe to: it exhibits no sentiment alarming to any, but to the friends of consolidation.

It has been said, that this decision of the Supreme court of Pennsylvania, is a single and solitary one.--The question has, perhaps, seldom occurred in the state tribunals. As, however, error does not become truth, by being often repeated, neither does truth lose any of its beauty, by being seldom promulgated. Again, it has been said, that the jurisdiction of the Supreme court, has been acquiesced in, by some of the states. It has never been before, asserted in the courts of this commonwealth, nor acquiesced in by them. As to the acquiescence of other states, I deem it unnecessary to go into any inquiry, on the subject. While such acquiescence, if it has existed, may be accounted for on so many grounds, other than that of an acknowledgment of the federal claim, it is sufficient for us, to say, that those decisions are not binding upon us. Other states may abandon their own rights under the federal compact, but have no power to cede or relinquish ours.

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I consider this decision by the supreme court of Pennsyl vania, as a complete and solemn authority, to show, that in case of a difference of opinion between the two governments, as to the extent of the powers vested by the constitution, while neither party is competent to bind the other, the courts of each have power to act upon the subject.

So in the case Rose vs. Himely, [4 Cranch, 241.] it was resolved by the supreme court of the United States itself, that a sentence rendered by a self-constituted body, or by a body not empowered by its government, to take cognizance of the subject could have no legal effect whatever; that the power under which it acts, must be looked into, and its authority to decide the questions, which it professes to decide, must be considered; and that the operation of every judgment, must depend upon the power of the court to render the judgment, or, in other words, on its jurisdiction over the subject matter, which it has determined.

These authorities are conclusive to justify this court, in pursuing its own opinions on this subject; and I can perceive no arguments justifying the authority of the decisions of the Supreme court of the United States, in relation to this case, which would not equally sustain its judgments, rendered upon the construction of our acts of descents, for example, should that court ever so far forget its own limited powers, as to intrench on that province, also.

Upon the whole I am of opinion, that the constitution confers no power upon the Supreme court of the United States, to meddle with the judgment of this court, in the case before us; that this case does not come within the actual provisions of the twenty-fifth section of the judicial act; that this court is both at liberty, and is bound, to follow its own convictions on the subject, any thing in the decisions, or supposed decisions, of any other court, to the contrary notwithstanding.

My conclusion, consequently, is, that every thing done in this cause, subsequently to the judgment of reversal, by this court, was coram non judice, unconstitutional, and void, and should be entirely disregarded by this court; that the writ of error in this case was improvidently allowed; and that the judgment of reversal by this court, should be now certified to the Superior court which has succeeded the district court of Winchester, in its powers, for the pupose of being carried into complete execution.

Fleming, J. This cause has been justly regarded as one of the first importance, as it involves in it a great national and constitutional question of extreme delicacy; and has therefore been elaborately argued with great ability by some of the most distinguished characters of this bar; and has also received from the court the greatest attention, and the most mature deliberation. It is fortunate and satisfactory to find, that the opinion of the court is unanimous on the important occasion, though we have to regret, that, from a peculiar circumstance, one of our enlightened and worthy brethren did not sit in the cause; whose opinion-presuming he would have concurred with the rest of the court-would have added weight to the decision.

The question now to be decided, is not whether this court erred in the case of Hunter vs. Fairfax-but, whether, if so, the supreme court of the United States has jurisdiction to correct the error?

It seems unnecessary for me to travel again over the extensive field of discussion that has been so amply and ably explored by the judges who have preceded me, and I shall therefore not enter into abstract reasoning, but be content with briefly noticing a few of the most prominent points in the cause; in doing which, however, a repetition of many of the remarks already made, cannot be well avoided.

I shall inquire, 1st, whether the 25th section of the judicial act of congress, so far as it respects the case before us, is justified by the constitution? and 2d. whether this case is comprehended within the provision of that section?-And, as a preliminary to those inquiries, I shall take the liberty of quoting a few passages in a celebrated book, styled the Federalist, which was often cited in the argument of this cause.

The author, a zealous friend of the constitution, avowedly an advocate for its adoption by the states; and written to obviate some objections that had been made respecting its powers, observed in volume 2d, page 26, that if the government be national with regard to the operation of its powers, it changes its aspect when we contemplate it in relation to the extent of its powers. The idea of a national government, (says the book,) involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government.Among a people consolidated into one nation, this supremacy is completely vested in the national legislature.

"Among communities united for particular purposes, it is vested partly in the general, and partly in the municipal legislatures-In the former case, all local authorities are subordinate to the supreme and may be controlled, directed, or abolished by it at pleasure.--In the latter (the case of our own government)-the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere.-In this relation then, the proposed government cannot be deemed a national one, since its jurisdiction extends to certain enumerated objects only; and leaves to the several states a residuary and inviolable sovereignty over all other objects."

The legislatures of the several states, not satisfied that the above just principles would always govern in the construction of or expounding the constitution of the United States, obtained an amendment thereto, explicitly declaring that "The powers not delegated to the United States, by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Let us now apply those inestimable principles to the case under consideration, and inquire whether the 25th section of the judicial act of congress, so far as it respects the case before us, is justified by the constitution? By the third article of which, section the first-" The judicial power of the United States No. XXIII.

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