must include questions of the location of power, so far as it is a thing determined by the Constitution as a law in the primary sense, or so far as it is distinct from that fact of the investiture of original power of which the Constitution is the evidence and not the cause. Since an essential part of every judicial act is to recognize the supreme power which promulgates law, every judicial officer in the United States decides the constitutionality of any law, governing the case before him, as legitimately proceeding either from those powers which are vested in the national Government, or those remaining in a State. And since all acts of power proceeding from any person or political body who is not identified with the sovereign possessor of the original power of the state, must, within that state, be based on some law,-rule of action, and may be tested by the judicial function of the instrument of government, the decision of the supreme national judiciary is, to the individual, in any part of the United States, the rule of his obedience until one or the other of those possessors of original sovereign power, that is, the United States or the single State claiming local jurisdiction, by action as a sovereign above law, causes a different recognition of the source of law. If then it is supposed that a usurpation of the powers distributed according to the Constitution may occur, either on the part of the national Government or of a State, the question of usurpation or non-usurpation is, according to the highest law, now existing, to be determined, for the individual natural persons concerned, by the judiciary of the United States.1 § 367. By the "judiciary" act of Congress, September 24, 1789, § 25,' which the Supreme Court has decided to be consti 1 Bank of U. S. v. Norton, 3 Marshall's Ky. R. 423; Braynard v. Marshall, 8 Pick. 196; Hempstead v. Reed, 6 Conn. R. 493; Commonw. v. Lewis, 6 Binney, 272; Ewbank v. Poston, &c, 5 Munroe's Ky. R. 294; Bodley v. Gaither, 3 of same, 58; Lessee of Jackson v. Burns, 3 Binney, 84. 2 "Sec. 25. A final judgment or decree in any suit, in the highest court of law or equity in a State, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of such their validity, or where is drawn in question the con tutional,' the power of testing questions of constitutionality by appeal from the State courts is given to the Supreme Court of the United States only when the decision of the State court is in support of an assumed exercise of power by the State, or contrary to the power assumed by the Government of the United States; and the court is authorized to "proceed to a final decision of the same and award execution." But if the powers vested in the States, according to the Constitution, are actually sovereign and independent, the decision of the Supreme Court, in a supposed case of an actual usurpation of the powers of the States, confirming such action of the national Government, would still be usurpation; and a decision against the assumed exercise of power by the State, in a case wherein the actual legitimacy of that power is supposed, would be usurpation in a negative form; and it would be inconsistent with the admitted possession of its powers as powers of sovereignty, to say, that the State (i. e., the political person known as the State) is bound to limit its sovereignty by that decision. It would be denying State sovereignty altogether to say, that the decision of the Supreme Court would bind the State or the political people of that State (i. e., the integral political person known as such) in all supposable cases. It would be contradictory to say that a State of the Union possesses sovereign powers as an independent state, if an external tribunal has the right to decide finally what those powers are. What a State of the Union, as a political body holding sovereign powers, may rightfully do if its share of power is usurped in the name of law as judicially recognized, is beyond the scope of a legal view of the question, because the possession of sovereign power is a fact antecedent to law. All that can be said is, that so far as the law—the rule of action promulgated by the people of the United States in the Constitution-carries us, the individual, subject both to the local and the national sovereign powers, is, by the struction of any clause in the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption, especially set up or claimed by either party, under such clause of the Constitution, treaty, statute, or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error," &c., &c., 1 Stat. at Large, 83; Brightly's Dig. 259. Martin v. Hunter's Lessee, 1 Wheat. 304; Cohens v. Virginia, 6 of same, 264. must include questions of the location of power, so far as it is a thing determined by the Constitution as a law in the primary sense, or so far as it is distinct from that fact of the investiture of original power of which the Constitution is the evidence and not the cause. Since an essential part of every judicial act is to recognize the supreme power which promulgates law, every judicial officer in the United States decides the constitutionality of any law, governing the case before him, as legitimately proceeding either from those powers which are vested in the national Government, or those remaining in a State. And since all acts of power proceeding from any person or political body who is not identified. with the sovereign possessor of the original power of the state, must, within that state, be based on some law,-rule of action, and may be tested by the judicial function of the instrument of government, the decision of the supreme national judiciary is, to the individual, in any part of the United States, the rule of his obedience until one or the other of those possessors of original sovereign power, that is, the United States or the single State claiming local jurisdiction, by action as a sovereign above law, causes a different recognition of the source of law. If then it is supposed that a usurpation of the powers distributed according to the Constitution may occur, either on the part of the national Government or of a State, the question of usurpation or non-usurpation is, according to the highest law, now existing, to be determined, for the individual natural persons concerned, by the judiciary of the United States.1 § 367. By the "judiciary" act of Congress, September 24, 1789, § 25, which the Supreme Court has decided to be consti 1 Bank of U. S. v. Norton, 3 Marshall's Ky. R. 423; Braynard v. Marshall, 8 Pick. 196; Hempstead v. Reed, 6 Conn. R. 493; Commonw. v. Lewis, 6 Binney, 272; Ewbank v. Poston, &c, 5 Munroe's Ky. R. 294; Bodley v. Gaither, 3 of same, 58; Lessee of Jackson v. Burns, 3 Binney, 84. 2 "Sec. 25. A final judgment or decree in any suit, in the highest court of law or equity in a State, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of such their validity, or where is drawn in question the con tutional,' the power of testing questions of constitutionality by appeal from the State courts is given to the Supreme Court of the United States only when the decision of the State court is in support of an assumed exercise of power by the State, or contrary to the power assumed by the Government of the United States; and the court is authorized to "proceed to a final decision of the same and award execution." But if the powers vested in the States, according to the Constitution, are actually sovereign and independent, the decision of the Supreme Court, in a supposed case of an actual usurpation of the powers of the States, confirming such action of the national Government, would still be usurpation; and a decision against the assumed exercise of power by the State, in a case wherein the actual legitimacy of that power is supposed, would be usurpation in a negative form; and it would be inconsistent with the admitted possession of its powers as powers of sovereignty, to say, that the State (i. e., the political person known as the State) is bound to limit its sovereignty by that decision. It would be denying State sovereignty altogether to say, that the decision of the Supreme Court would bind the State or the political people of that State (i. e., the integral political person known as such) in all supposable cases. It would be contradictory to say that a State of the Union possesses sovereign powers as an independent state, if an external tribunal has the right to decide finally what those powers are. What a State of the Union, as a political body holding sovereign powers, may rightfully do if its share of power is usurped in the name of law as judicially recognized, is beyond the scope of a legal view of the question, because the possession of sovereign power is a fact antecedent to law. All that can be said is, that so far as the law-the rule of action promulgated by the people of the United States in the Constitution-carries us, the individual, subject both to the local and the national sovereign powers, is, by the struction of any clause in the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege, or exemption, especially set up or claimed by either party, under such clause of the Constitution, treaty, statute, or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error," &c., &c., 1 Stat. at Large, 83; Brightly's Dig. 259. *Martin v. Hunter's Lessee, 1 Wheat. 304; Cohens v. Virginia, 6 of same, 264. highest known law, bound by the decision of the Supreme Court. The law can do nothing in disputes as to the possession of supreme powers between those claiming to be sovereign in the mode of their possession of those powers.' § 368. The extent of judicial power vested in the Government of the United States by the Constitution is described by the cases which it may reach, which are of two kinds. First, all cases arising under certain laws; "all cases in law or equity arising under this Constitution, the laws of the United States," (the legislative powers of the United States being vested in Congress by Art. I., sec. 1,) "and the treaties made, or which shall be made under their authority." Second, cases arising between certain parties, that is, cases described by the parties between whom they arise; "all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction," (which jurisdiction attaches by the recognition of persons as being within certain geographical limits, or as holding peculiar relations towards the Government,)" to controversies to which the United States shall be a party, to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States and citizens thereof and foreign states, citizens or subjects." This is modified, as to suits against any one of the States, by the eleventh article of the amendments ;-" The judicial 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 any other State, or by citizens or subjects of any foreign state.” These last provisions make no mention of the laws affecting those cases, and necessarily include the power of judgment under any laws which may affect those parties." 'Compare Calhoun's Essay on Const. 1 Works, p. 240-244, and McKean, C. J., in 3 Dallas, 473. 1 Kent's Comm. 343. |