Western Sun & General Advertiser, Volume 22, Number 3, Vincennes, Knox County, 26 February 1831 — Page 1

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BY E;LIHu STOUT.j

IS published at g2 50 cents, for 52! numbers : which mav be discharged hv . i rr .1 V . " ! uic payiutiih ui j at uic tunc oi suuSV,1 I' -lilt,. Payment in advance, beine: tha mutu3l interest of both parties, that mode is solicited. A failure to notify a wish in discontinue at the expiration cf thc time sub'Ctibcd far, will be considered a new en cment; n? subscriber at liberty to

u..,llluv,1H1u.ulllllrv,uuaa pan.., For paving the invalid pensioners, in the bu Jicubcrs must pay the postage en yc:ir cnc r'housanrl eight hundred and thirtvthcirpapcis when sent by mail. Lei- er e, two hundred and seventy-six thousand iers by mail to the Kditor on business j seven hundred and twenty dollars, in addi-

:nuil be paid.or they will not be attended ' lo. Produce rvi 1 1 be received at the Cash fart rt Pricr, for subscriptions, if delivered within the year. Advf.utisf.mksts not exceeding .rir7c c n line, will be inserted three times for rne dollar, and twenty-five cents for ?ach after insertionlonger ones in the same proportion. jcUctso-u sending Advertisements, must specify the num ber of times thev wish them inserted, or hcy will be continued until ordered out, and must be for paid accordingly. 7 DY AUTHOIIITY. Laws f tkk uxitfd stati-.s, passf.d AT Till. SF.COVD SKSSXON CF THE TWKNTY-FIUS T C0 GUESS. ,o AN AC r to amend an act, entitled An "ot to provide for pa) ing to the St.Ucs(l MHO'iri, Mississippi, and Alabama, three per centum of the nctt pro-v,,-u ii of an act, erititl; d "An act to nrovide for paving to the St ites of Mo., Mississippi

v- h'iv:

ceeds an-m; irom the sale ot tiu public j tU r.arieshave their powers set down in wit1 vrds within the same." ten form to them, and, that the eonstftytion it : it e:act'd ov V Swate cr.d licu-c has expressed in certain language, tifc excf !teprs natives 'f the United Stves vf tent ei the jurisdiction cf thi; court Uf .j.-.v.-tum vi Co:v-rr- avtciMt.'. I hat so siidinthc 10th amendment, it shall eo no

aad Aid) im taree per centum ot t!io rett j ing arm to rdl masters that will atfud a juproceoh uang trom the sale ct the public j did al trial, where the 'general welfare' mav 1 tads xviihm the sa-ne,' approved the third j he advanced, or governmental expediencv ot M i , enjitcen h indred and twentv-tw o ! rnrri..l nut1 T.nr.l It imn r l' the St r

.as rrq ere- an nmul account of the appli- j !... .1 c-aiion oi v s i,u ntn transmittv l to tnc S e per centum, to be tarv of the Tieaurv, )0, mi ta h.v rhe.rtby repealed. A O.U.W SrKVKNSOV, fjvr if the li,use rf Kef;ree:.t:;ives. John C. Caliioitx, Prrsi l; ? f the K-:u(e. Arruovj.p, 19. h J muarv, ixil. ANDUFAV JACKSON. in o. r. AN AC F tor closing certain account, .no 'iiako.'.g appropriations tor an eat ac.-- i the Indian Department. ct:.:ctsd (.:. !'i ante and lloii,1 and e- i fro-r ff ' the U-i:ted ,V;,:.v.t if :'re..s . L t - I I hat the s-.i'u f.f sixty-out thousand dollars tie, and', the s i'uc is hereby, appropriated, t be paul ' ut of any money in the. Freuusury, not ..tin a-wise appropriated, for arrearages, in the Indian Department, the same to be appl.tdt the payment f.f balances on ae counts prescnteil and settled by the proper accountiog oluccr, ami now actually due, hi h accrued previous to the first day cf J mo try, one thousmd eight hundred and wt-i.tv -o'r.e, and to no other ivimsc. . .A f J . . .' . J I'C.i'JN or :.r ' an tier t u . . u , i . j .'l.at, for the purpose cf settling an 1 closivs the accounts in the od.ce ot the Second u.htui, relatir.g to Indian aiYuh naor to the date of Jan aarv. one th n:s md eitrht i hundred and twenty-mec, the I resident of I - 1 t the United Mates is hereby auturnzed to ; hici tran -f rs to be made from such ba- J boice f monev s hcretofo.c appropi iated. ! ?n carry into eifectcertain Indian treaties as ! are no Imger icquired for their several oh-J iects, to tiie credit of certain other heads of i Indian expenditui e, under w.uch oalances ! acciui: :g previously to the above date, re - . - i m i, a it i. to cei t-in individuals, and appear vp n the hooks of the Seeond Auditor; alto v! ict similar transfers to ho made to an 1 from th.e several specific, heads t f con f.pgeni ics et tne liulian iopartmenr. pay ct ! .a ;. ..is, s ih agmts. auvl presents to Indians; and. ot tne s i n or tne thousand an . fo-ii ie a lu'd u s a:ul nttee.i cents, ftom the 1 i sa Vw.. r.ce ot tae armv, to the neat. . ,i jt I tit ii v expondit'it e, under which that .tip ;ut was actmhy applied and expculod: I hat no such transter ..'i i1 .e m lite u-uess it svttstactoruy appear V.i it ii' m u.o f uexpenditure was .totally tiie service 1. 1 liKtian atfurs, in t-v . reta-v re v . a itli of the Treasury be, ai.i1. is red to p iy t'" M irk nail K. ll f . 1; : ci. Tret t Arkans is, out ot any ni viev ?i ur no. 1 therwiso appropriate. pill v i .mi 1 n .1:1 I '.lltV - I. V ,i' lt.i .-'V.. Il.i "i." ' . ; vt d .l is .liul tw entthvo cents, tor s ipcs f .rti'saiil to t!ie emigrant Creek laotN !-y 'hrection of former Indian agoots: e. i i. That the said Means shall first ( ii ut v i.'i i nt evidence to the proper aci.or g oihcer. that credit wms originally ketiljv them to the Government of the Um o. e l Siutt s, and tht no part ot the i o i. ha -i reci ive 1 by the n, or s if,- '.:; i llv or uiihreotlv. tr ai the i gents I-' n hov s.iidi r coutractei. v i. .K, '. Tta Janu-rv, 131. a i

vol t'lith, by aa authorised aent cf thc tim was under consideration, that anv thing and include all appellate proceedings, by ltQ san effect, as if the judgment or decree Vx . r viuuu. ar.vl behvre th? date aforesaid. I here expresso-d would authorire a s-m to be which a suit is sustained? Can a Sute be e0Vil vned of "had been rendered or naAd -1 fut the ball ices from which such i brought er prosecuted cSt a State by a j kept in court against her will, and the suit inC ircr.it Court, and the proceedirVs tvmskrs arc authorised to oe made are not j cifuen or subject. As a gener.d principle. I be n-t prostcutedr hut the very history u.)OI) the reversal shall also be the ame. exth oss i v lor the sp.ciuc p.irposc o; tneir j a State or sovereign could not be bi ought tot rt the amendroent shews it was intended to cJ.f., tithe Supreme Court hatful cf reon..;o,d ..p,u-pnatum. , ; answer in a court of justice, for the m .inner j include such a proceeding. Would not the dtng the cause for a f.nld dt cisicn, as

VZ3MC37S3, (Z&.) SiLTUHDaY, FSSRU.AXHr 2G, 1331.

j No. K- AN AC T making appropriaticns for the payment of revolutionary ar il invalid pensioners, u enacted bj thc Scnafr ar.d Ihvsc cf Jtr.'nrxf xfnfhrx rf tie L Ultra St a 'it f)f 1 ' ". ,. . . " r. . .T lntrrra ii Cc?rrrrA.? i-s-c:::oicu 1 lint the following sums bo, and the same ate hcrebv, appropriated, to be paid out of any monev in the Treasury, not otherwise appropriated, for paying revolutionary and invalid pensioners, viz: For payment of revoluticmrv pensioners. ! for the tar one thousand eight hundred and thirtv-one, one million eleven thousand one h - j cl'o-Iars to an unexpended balance of appropriaxion :or lnvaua pensioners ct twenty-tune thousand two hundred and forty-six dollars ninety-five cents. For pensions to widows and orphans, five thousand dollars. Approved, January 27, 1S31. I rom the Puhuc . 1Jver;:.s,:r. THE QUESTION AND POWER. Mr. Penn The doctrines lately advanced by those presses, that support the latitudinousconstructicncf the constitution of the United States, have induced me to address these remarks to you. I in ike them rather in the suggestive form than that of regular argument . Hut 1 expect to shew, sir, that the jurisdiction claimed for the Supreme Court, in the case of Tassels, is not to be found in the constitution, or laws of the United States. We h.ne been accustomed to l.ear the argument oi txnec'icncv urjred to support the powers of Congress: and we have seen the alarming extent to which tich argument lias been can it d and I may add, its alarming success; (for some ot our ablest statesmen, and of the republican West too, who were its sturdy combatants, hue deserted our ranks, r.nd gone oxer to the federal party;) but we have heard the same argument in favor cf the jurisdiction of the Snprtmc Court, echoed from all quarters of the Union. There must be an arbiter, say thev, some where none is so proper for the duty as this court: therefore it lias jurisdiction. Have we forgotten, that ours is a country ot law is? that our func farther? Would the politicians of the opportion make this tribunal reach a correct Chamber a Court of mw.ja ?::irv. I he Star Chamber, established in violation ot Magna Charta, held cognisance cf all su :h offencos as were not punUhaMc in the ordi nary common law tribunals ct tut- kmguo.n; ; and likv- the Courts of equity to ascertain its jurisdiction, was to inquire whether tne courts at Westminster had cognijanee. ! Fhe do'trine, that the Supremo Cuurt ure.t have jurisdiction to hll up an apparent hi :- '.v.? in our judicial power, is to make it hke the Star Cifamhcr, it net a cri.nioai, a e,v.nd political court of equity, with jurisdiction as iHimitabk.tmd underlined as 'expediency' itself Letuslook t .r Magna Charta, and stand by its provisions. Iti.verv doubtful, wlicthcr, under the constitution of the United States, a writ of error can, in anyc .se, issue from the Supreme Court of the United States, to a court rf one of the States. In the case of Hunter against Martin, tth Munford's Mepoi ts P'ge one. it was decided by the Court of Aprcalsof Virginia, that Congress pessesstd no power to authorise sorb a wi it; and the Judges unanimously rejected the mandate of the Supreme Court. Is it not remarkable, if the convention intended that such a power should be exercistd, that they have said not one word about it in the constitution, but have left it to be derived by illation and construction? Let me entreat such as have d uibts on this subject, to read the powerful argument of the Court of Appeals ot irgima. A principal argument. in support vi the constitutionality of this power, is, that it was conferred by an act of Congress passed at so e irly a day. But it should be recollected, that this very act of Congress contains a provision in the lath section, conierrnu1: power on tne Sunreme Court, which that court ha soienuuv ceciSee Murburv i i ded to lie unconstitutional v Madison, 1st Cranch's lien. 'Flic constitution, unamen led, provides thkt the judicial power of the United States siia!! extend "to controversies to which the ; United States shall be a party; to contro versies between two or more States; between a State and citi; ::is of another Sute; between citizens rf different States;? be- ' tween citizens of th- rue State claiufing lau-ls under grants of ditVercr.t States; and ( between a State or the citiens thereof, and foreign States, citizens or subjects. It seems not to have been thought m the ccnv entton, or by tne people, white the co;titu ?oereie. rUrht and le.stice. IS or couhl toe ma:nlio m rourr. or execution he .l.:ic upon a State. S ie must always consent to', "I , ' V .l.vi I 4.11 1 i l I . 1 I V.l.l .111. .HIV 4.i le sued 'n- an iudivi.lu.d 1 1 !: "iiii vin'v..i f'. '.. .nvn j'i u f . -it., ii.ii. . vi. fc i , Wil.VW Hi. Vt.WUi- m-i.il quoted, tior.s of wimi M U i I Ulll .4 -. authorised suits or a;a iv Kie. i ov ;;i inco.v iilual ag.nnst the govermen; vv (",vi.( nt ot t t ie 'Kr I nio eo. o)' lies, w i;o,i.uii s or a nr i;on toaile av lawf ..;r. li-vi.i.too. w ,o v .s ;t r.icmuer of tiie cc-.veut.o.a of and wli- wrote : m-st of the nu-.nbers of t!ie Federalist, thus so-f.s on this su'iect: 'h L.ts !v';i mi:g- st, 1 t'n. t a i eo: ii' -s t oi;e isvigauiMate i, t t ?1 pal lie se no c.t:.:,s i alioto i svcuve to..: t:v.T, 'ocii ! ro.1,0 t''.o:i to sVcuve tint .. l State in the federal com is, for thv umeuut c

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those securities. A su following considerations foundation:

"It is inherent in the na tv, tint to he anicnnnn: u suit ct an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, i-; now enjovedby the government oi eer sraie in me union Urdess, thcrtfoie, there is a surrender of j this irnmnnitv, in the plan of the fohven tion.it will remain with the States, sd.dthe danger intimated must be merely idt&l, Sec Federalist, 443. Such were the opinion-, cf Mr. Madison, (who w as also a member of the convention of 17S7.) expressed in the Federal convention of Virginia. When discussing this article cf the constitution, he says: "It is not in the power of individuals to call any state into court. The only operation it can have, is, that if a State should wish to hi ing a suit against a citizen, it must be before the federal crurt," Passing on in the discussion, he says; "The next rase provides for disputes between a foreign State and one of our States, should such a case ever arise, I do not conceive that any controversy can ever be decided in these courts between an Atncrican State and a foreign State, without the consent of the parties If they consent, provision is here made." See Debates in Convention, pages 37-S, 9. Mr. Marshall, (the Chief Justice,) in debate on the same article, gave it the same construction, and sustained it forcibly. lie said: "I hope no gentleman will think that a State will be called at the bar cf the Federal court. It is net rational to suppose, that the sovereign power shall be dragged before a court. The intent is to enable States to recover claims of iudividu ds residing in other states. 1 contend tilts construction is warranted b) th the words. lhit sav thev, there will be par- j tiality if a State cannot be dcfen;lant if anv j individual cannot proceed to obtain iWjudg ment against a State, though he mav be sued by a State. It is necessary to be s, and cannot be avoided. 1 see a difficulty in making a State defendant, which does not prevent its being plaintiff" Sec page oJ4 And, in speaking of the jurisdiction of thv? court in controversies between a State and a foreign State, he says: " Fhc previous consent of the parties is necessary." Thus, the position that a State cannot be brought into court without her consent, (in relerei.ee to the constitution, :.s well as the general doctrines of nations,) is laid down by these statesmen, .nnd extended even to controversies with other States. However, soon aftrrtle ot g.mi.'.ition of th? Supreme Court, the case of Chidioln;, F.ec.!it'r vs th- State of (.eerpa, w.ii instituted See 2 Dallas' Ren. . Ueorgi i was sa.nmonc d to the bar rf the Court tihe u fused to appear, but s.M.t a written prote rt ruin-t. the asumpti-iti ot iurid.ot;un. ' !,: Court (''.nr.pssed of three -uMg-s. one ; ;!;- o.mmuu.'.- ) iu c; to eisider th- ea . ( ?! e..t e:cite-iient ; : t vailed. 'I he "Old D.ai.mh.u" t,o ;d iort .. i. for the in-uh-d St.uo f.onvcss i;r.mediLately pn.po d ttie eleventh amcntlmeat'of the constitution, e.?-:!airJ" the clause upon which the jarwhetion had been taLeu. This is the amendment: " fhe Judicial power (f tlic United States '.hall not be construed to extend to any suit mhw or equity, commenced or prosecuted against one of the United Mates, by citir.ms cf another State, or by citizens or suf'iects of anv foreiirn Mate." Unserve; the lai I'uav? rf this amendment is eutireh explanatory. It does not repeal any former provision of th constitution; but, in the voice f the whole people of the United States, it gives the true construction to the former at tide, and inhibits that given by the count It "shall not be consti w.cd to extend," c'c. This amendment was treated as merely explanatory in the Supreme Court immediately after its adoption, on the moti. n to dismiss the suit of llu'.lingsworth vs. Virginia. And in the Supreme Court of IVnnsv Uar.ia in Chief Justice McKean says: "It has been well observed bv the Attorney (ieneral, that by the last amendment, or legislative declaration cf the meaning of the constitution, respecting the jurisdiction cf the States, it is strongly implied, that the States shall not be drawn against their w ill, directly or indirectly, before them." (See 3 Dillas, 475.) Thus we seethe principle, that a State cannot be drawn against her will before the court, at the suit of an indi vidual, as laid down by Mr. Hamilton, when expounding the constitution to the people of tiie Unit d States, and by Mr. Madison and Judge Marshall in the Virginia Convention, and as contended for bv Georgia in her protest, fully sustained bv this amend ment, and sustained too, as an original priti tijUftJl turr v;u 1 1 iiinci.t. Mill to protect it fuliv against all misconstruction, or mis ! h ;en comproantted, as well bv iieir.g 1 hroueut mto the court in o:- w.n- k the of ei? Can a state wear her soverti-'-ti ha- ...... i .1,' 'll.ikil.u IU.U . LL'UIl 1 ' 'I'M ) 1 !v.' in.'n i.ln il' i-.' -v '.', i" it., inui' u.M Ba. it is contended that, as the constitu-

apprehension, the word firweutrd is used ! the Ch.;L.f jastice, or Jf , cr Chancellor as well as commenced "any suit m law or cf the Court, rendering or passing the judgrqmty commenced or prosecuted a-ainst mt.nt or dccrec compUined of. cr bv a J'sone ot the Untied States. Lor this word ,kt. r,f t!,e Supreme Court cf the 'United 'irosecut'd hav e its natunl imp .rt in thi. j S:a.c5 in thc s ,n;c manner and under the provision .and does it net directly rcicrtoianiere .lu;c,iS ar,d thc writ shall have

tioii declares, that "the- judicial power Hthertcorjf and immediately rtspec the L ; utM States) s,: .11 extend to 11 Cav . )Ctore nu-ntioned questions of valid

le ' i-i law cqco.tv, ai.sin- unuer thib ConsU tutio.n.the latvs of tho Ur.ited States, and treaties made or which shall be made under t.ie.r .uiuitniij, ul: o'i;i e ;ne v o it t ri.ia s i. ..:..". i. .!- ... . . . . . . jurisdiction ri tne cae t t 1 av t Is, in refo-I rence to t!uCi.- V. and rot reg ird.in; the character ot the party. H if, it the ji lic'nl oowcr ot the I r.ito.l tutes ova n r.cli the f : . -ase, the ch.truv'.er cf the party vtVA Ciccc:

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g-estion which the tne kmu o: jurisdiction it shall exercise. i pression in this section, a . . i .!a 1. , -. i e . f '

pimc iouc wiinout j vnouK-r plti ..Siapri c: tiie ?ame section, dc-! prosecution, presentment. i r 1 -. - Vi 1 r- fr$r--'r .-. t I

-.i.i., v..5-cs-in wnic i astate ;n,i;rtmPnt . t 1 i

h,rnf t.:-,. .fcnllhn.jnaftv t!,-..., , I ' ...u.u.v.h , u.t UUtl UlltfUJ

have ongv:i:C jurisdiction. i-.-m.i-. .i in ail tlip nt!ifr - O VHW t'Ult. t cases before mentioned, the Sm.ren.r r,,. !

shall have appellate jurisdiction, both as to! ,,c section speaks of the whole prolaw and fact, with such exceptions, and un- j cccding in error, being in the same man

der sucli regulations as the Congress shall make." Thus the jurisdiction is fixed un char.geab'y by the constitution. AstlieSu- ! preme Court could not have original juris diction in one set of ca-es, so it could not have appellate jurisdiction where a State was a party. Let us hear tne supreme Court itself on this subject: "If Congress!

remains at liberty to ,ive this Court appt 1- j hned such proceedings to civil cases onlate jurisdiction where the constitution hasj ly. The act goes on and the proceeddeclared their jurisdiction shall be original; ing upon reversal shall be the same exar.d original where th? constitution has dc-! rent the sunreme mnrt int ... '

dared their jurisdiction shall be appellate, the distribution rf jurisdiction made in the f ontitution is form w ithout substance." (Sec Mai bury vs. Madison. 1 Cranch, 174.) This seems conclusive. Admitting then, the State Court rf (ieergia was sj far a court ot the federal government, that a writ of any kind could remove the case from its cognizance to that cf the Supreme Court of the United States, a writ of error could not do so. That writ, every lawyer knows, docs not afford a trial in an engine! form. A certiorari, or some proceeding taking nriginal jurisdiction of the ease, should have been aff ti ded. Hut how could such a jurisdiction be exercised by the Supreme Court? Another paragragh of the same section of the constitution declares, that the trial of all crimes "shall be held in the State where the said crimes shall have been committed." It cannot have original jurisdiction then, in such a case, for it cannot try the.:zr.r at the City c.f Washington. Can' it still be pretended the conrt jnust have jurisdiction under the general expression, "cases in Ins r,)n,t' "rising, &c? L Matl;';'- 1 id ways plea n uUonary s talesman, anc et us hear Mr. asf (I to quote a and one w ho as sisted so much to form the constitution. "The expression, 'cases in law and equity,' is manifestly confined to cases cf a civil nature, and would exclude cases of criminal jurisdiction. Criminal cases in law and tquity would bo a language unknown to the law. The Micfeedmg paragraph of the same section is in harmony with this construction. It is in these words: Tn all cases ufT-'oting Ambassadors or other public ministers and Cuascls, and those in which a Mate :hall he a party, the Supreme Court shall hav e ordinal jurisdiction. In rdl other cases (inch. ding cases of law and equi'y arisimr under the constitution,) the Supreme Court shall have afifiellate juris' iiction both as to law and fact', with such exceptions and under such regulations as Congress shall make.' This paragraph, by expressly given an appellate jurisdiction m cases of law and equity aii.ing under the constitution, tou-cf as well as to law, clearly excludes crm.insd cases, where the trial by jury is scented; because the fict in sutli oa-.es, is not a subject of appeal And al though the appeal is liable to such rxcf:;;.v a!io regulations as v,onir.css nuv tdopt, yet it is not to he supposed that the exetf:ti r of criminal cases could be contemplated; as wcli because a discretion in Congress to make or omit, the exception t would be improper, as because it would have been unnccesraiy. 'Fhe exception could astasi'v have been made by tne con stitution itseit as referred to the Cor.cress " See Keport cf 1719. In lry.in the Supreme Court cf Pennsylvania, Chief Justice McKcan sai 1, "that neither the constitution not the Concrress ever contemplated that any court under the United States saould take cornizai.ee f.f j any thing savouring of erir.iiuaLiiu a state." f Dallac, 476. atr-zimt o Hut, the constitution apart, let us refer to the judicial act. which, it is said, affords this writ, and see whether by a fair construction it does so. The JSth section of the act provides: "That a final judgment or decree in any suit, in the highest court of law or equity of a state in which a decision in the suit cculd be had, where is drawn in question the validity of a treaty or statute of, cr an author ity f-xerci.ed 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 Corstitution, treaties, or laws of the United States, and the decision is in favor of such their validity; or where is drawn in question the construction of any clause of 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, specially set up or claimed by cither party under such clause cf the said Constitution, treaty, statute or commission, may be re-examined, or reversed or affirmed, in the Su preme Court of the United States, upon a writ ot error, the citation being signed by jerore prov i fUr, r inif vh;. M h:.o (.rrr rf-mnnded before, proceed t j a finii decision of the same, and award execution. But no ether error shall be assiened or regarded as a ' . f. -i c r - .1 t .? i 11 v mr h r o j thun such as appears on the face cf ' riU IUU V.i IV k Vl till! UVII V. ' V J 4.A ects the etore roentioneil qtifStions ot vauuitv or i - - mnvtrc.-tion of tht s.ud Corstiio.tio:o tif-a-i ticS statutes, couimiisicns, or authorities, in (osMUtc ' 1 Now, there is r,o language used here, describing any other proceeding than a civil suit. Fhe word "suit is unfit and 1 inapkuicj.jic iu auj dicable to any k.i d ol criminal proceeding. We perceive r.o such ex'

VOL. XXZL N0 3.

criminal case, information, ge proper uuu utuiiivai wusatuuc a cr minai pro .. - . . I rr-V...ifl In rl....:i t ' I 1 cecair.g. ner, and to "have th same effect, as if the judgment or decree complained of had been rendered or passed m a circuit court. ' Now, the previous par. s of iho act have not authorized any proceeding in error from the judgment of a circuit cori in a criminal case ; but have concept the supreme court instead of rtinanding a cause for a final decision as before provided, may at their discretion, Uc. proceed to a final decision of the samo and avrard execution " This clauso shews conclusively, that a criminal case was not contemplated A criminal case could cnly bo tnken to this court by the accused ; what execution then could be awarded "upon reversal !" A party recovers no costs against a state : and if ho did, no execution can issue agamsta sovereign, against a comm'nweaiin. Surely this section has not, possibly, any allusion to any other than suilscml suits, and judgments or decrees in them. If it had been intendtd by congress to include the sentences ol the state court in criminal cases, can it be believed, that language so inapt would have beer, used, and provisions so inappropriate would have been made ? Upon a subject, that must have awakened all the attention, fixed all the scrutiny ot congreis up r one of o momentous a beaiing, as that ot reaching the authority of the tedtral government to the cases, in which the btates were prosecuting offenders against their laws, would not, must not congtess have tistd plain and dnect expressions of their ineanii g ? Quicunque via data, which way soever we can view it, the writ of error in the case ol 1 assels was improperly issued. And yet, Georgia has been declared in a state of rebellion, and her conduct compared to that ef Pennsyliania in the case of the prize money. I am not the apologist ol Georgia. I think her conduct very censurable. It was a cuse with the judiciary. The Indian should have been reprieved UDtil his case cuuid have been hcard.il so rcspecublo a tribunal would pietend to take juiisdiction of his case When his cate had gone through .11 tne forms, thu. the senier.ee ot justice should have been applied by that authoiity, that hat the iawful power. Hut the condor of Georgia was not like mat of Peoosvi.ania I he oi,e was open dtficmce unci r;ppositiiion to the law of the land 1 brother was disrespectful and ui.betcn.ing, but n-1 unlawful. 1 have grc?t respect lor the 8u;vime court ol the United States: and I like to see its authority regarded with ail tho consideration due to so important a functionary in this government I5ut I am not pleased to see the states ot his Union subjected to its unconstitutional correction I am unwiiling to forget, that power exercised without right, even for the public good, is as latvlees, as if it were done for the public harm I am unwilling to think the court would have taken jurisdiction had the case of I assels gone on. But the National Intelligencer says, such jurisdiction has become the practice of the government that it is yielded by the states : and that Virginia submitted in the case of Co hen's What, the proud republic of Virginia make obeisance to usurpation ! The coadjutor of Georgia in f93 shew her how to bear the tread ol oppression with becoming patience ! Did the giant intellect of the "Old Dominion" doff the casque, and bare the knee to do homage at the feet of the supreme court? No: it stood up in boldness and strength. The reins of every patriot in the state swelled with indignation. The judgment of her court had beenconlormed: but the chief justice in delivering the opinion of the court, claimed extrajudicially the power to reverse it. Her statesmen and jurists with promptitude, and powerful reason, combattcd the argument of the judge You may recollect the publications of that day. 1 ara sorry that I have net seen them but they exist in history. Jefferson, speaking of them, says: uThe doc rii.o was so completely refuted by Roane, that if he can be answered, I surrender human reason as a vain and useless faculty, given to bewilder and not to guido us." The practice of the poverr.ment has not established such a juridiction. and the states have not submitted. Bat I acknowledge, we are running fast imo a practice of construction, that I fear will, ere long, swallow up in consolidation, the chief powers, which the people ha. o reserved to the states, or to themselves. But let me not fatigue you with my own remarks, when there arc so much better at h3r.d Chief justice M'Kcan, before quctcC, . Tl . . l . . .

in the supreme couu oi i cou.j uma, in 1793, made these remarks upon the constitution and laws ot itie U States: "The division of power Lctwctn thc