The Supreme Court has no appellate jurisdiction over state courts

An interview with the Virginia judges who defied the U.S. Supreme Court (excerpt from the treatise, The Kiss of Judice: The Constitution Betrayed: A Coroner’s Inquest & Report. For information on the treatise, see The Kiss of Judice: The Constitution Betrayed: A Coroner’s Inquest, Volumes 1 and 2 . . . )

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The U.S. Supreme Court Has No More Jurisdiction Over State Courts Than It Has Over the Courts of Calcutta-Judge Spenser Roane

Coroner: No, certainly not. Thank you, Col. Taylor. Before we leave the subject of federal appellate jurisdiction, I should like to focus on Martin v. Hunter,[1] perhaps the most important case in American judicial history, and a rare or almost non-existent case of a state supreme court, Virginia, defying the mandate of the U.S. Supreme Court on the grounds that that court had no jurisdiction, appellate or otherwise, over the decisions of state courts.

In reversing the decision of the Virginia court in a land title case, the U.S. Supreme Court issued a mandate commanding the Virginia court to enter judgment in favor of Martin. When the mandate reached the Virginia Supreme Court, the judges asked members of the Virginia Bar as well as the lawyers directly involved in the case to argue on whether the U.S. Supreme Court had the authority to issue the mandate; that is to say whether that court had appellate jurisdiction over the decision of the Virginia high court. The argument lasted some six days in the Spring of 1814, and the Virginia court’s unanimous and resounding “No” came in December 1815.

Judge Cabell

Judge Cabell for the Virginia court framed the issue: “[H]as the Congress of the United States, a right, under the federal Constitution, to confer on the supreme court of the United States, a power to re-examine, by way of appeal or writ of error, the decision of the state Court; to affirm or reverse that decision; and in case of reversal, to command the state Court to enter and execute a judgment different from that which it had previously rendered?”[2]

He went on to say: “My investigations have terminated in the conviction, that the Constitution of the United States does not warrant the power which the act of Congress purports to confer on the federal judiciary.”

Judges Cabell, Brooke, Roane, and Fleming, each of whom wrote an opinion in the case, are here today. I should like each one in turn to address the reasoning those judges used in repudiating the decision of the U.S. Supreme Court.

Judge Cabell, what were your reasons for rejecting the mandate?

Judge Cabell: [In general this point:] To the federal government are confided certain powers, specially enumerated, and principally affecting our foreign relations, and the general interests of the nation. These powers are limited, not only by their special enumeration, but by the positive declaration that, all powers not enumerated, or not prohibited to the states, are reserved to the states, or to the people. This demarcation of power is not vain and ineffectual. The free exercise, by the states, of the powers reserved to them, is as much sanctioned and guarded by the Constitution of the United States, as is the free exercise, by the federal government, of the powers delegated to that government. If either be impaired, the system is deranged. The two governments, therefore, possessing, each, its portion of the divided sovereignty, although embracing the same territory, and operating on the same persons and frequently on the same subjects, are nevertheless separate from, and independent of, each other. From this position, believed to be incontrovertible, it necessarily results that each government must act by its own organs: from no other can it expect, command, or enforce obedience, even as to objects coming within the range of its powers.

Coroner: What is the consequence of the divided sovereignty you advocate?

Judge Cabell: [N]either government nor any of its departments, can act compulsively, on the other or any of its organs in their political or official capacities; with the single exception, perhaps, of the case where a state may be sued. * * * No one presumes to contend, that the state governments can operate compulsively on the general government or any of its departments, even in cases of unquestionable encroachment on state authority . . . . * * * The Constitution of the United States contemplates the independence of both governments, and regards the residuary sovereignty of the states, as not less inviolable, than the delegated sovereignty of the United States.

Coroner: There is no specific grant of jurisdiction to the federal courts that would permit a clash between state and federal government?

Judge Cabell: [Right, as Col. Taylor earlier noted.] It must have been foreseen that controversies would sometimes arise as to the boundaries of the two jurisdictions. Yet the Constitution has provided no umpire, has erected no tribunal by which they shall be settled. The omission proceeded, probably, from the belief, that such a tribunal would produce evils greater than those of the occasional collisions which it would be designed to remedy.[3]

Coroner: Here, by saying the “Constitution has provided no umpire”, etc., you seem to contradict what you said just before: “[N]either government nor any of its departments, can act compulsively, on the other or any of its organs in their political or official capacities; with the single exception, perhaps, of the case where a state may be sued.” You omit the possibility of other cases in which the states have explicitly waived sovereign immunity.

Judge Cabell: [I did say “perhaps”, because I didn’t analyze your question, since it wasn’t necessary to the disposition of the Martin case.]

Coroner: What about Mr. Hamilton’s Federalist argument that “the national and state systems are to be regarded as one whole”? Doesn’t that undercut your argument of independence of each sovereign?

Judge Cabell: [No.] To justify the [“one whole”] inference that [Mr. Hamilton] deduced, it must first be proved that the parts are connected, and that the one is superior to, and has a direct, commanding and controlling power over the other—which is the very point in controversy. * * * [But the powers of federal and state] emanate from different sources, and have no common head.[4]

Coroner: And therefore neither can control the other?

Judge Cabell: [Right.]

Coroner: You contend also, as Col. Taylor does, that the structure of Article 3, supports your conclusionthat there is no federal judicial power over state courts?

Judge Cabell: [Yes.] The first clause of the third article, before mentioned, speaks of the different Courts, in which the judicial power of the United States shall be vested as superior and inferior; the next enumerates the cases to which that judicial power shall extend; and the one now under consideration, resuming the subject of the Courts, speaks of the jurisdiction of the supreme court as original and appellate. The term supreme must be understood in reference to the Inferior Courts immediately before mentioned; and it must be in relation to them, and not to the State Courts, that the supreme court is to exercise appellate jurisdiction.[5]

Coroner: That reasoning finds support in the rule of in pari materia: “upon the same subject or matter”. “Statutes in pari material must be construed together.”[6]

What do you say in answer to the argument that the Constitution contemplates only the objects of appeal and not the tribunals from which appeals are to be taken?

Judge Cabell: [That] argument proves too much, and what is utterly inadmissible. It would give appellate jurisdiction, as well over the courts of England or France, as over the State courts.[7]

Coroner: In your opinion, you wrote on the question of a defendant’s right to remove a matter from state to federal court. What did you say?

Judge Cabell: [I presumed it to apply and as a result to confirm the strength of my conclusion.] I have no doubt that one of these powers is that of making all laws, necessary and proper, for extending the judicial power of the United States, to all the cases, to which the Constitution declares that that power shall extend. I must not, however, be understood as impeaching the concurrent jurisdiction, original and final of the State Courts, provided the parties shall elect that jurisdiction. I do not understand the counsel for the appellee as denying the concurrent original jurisdiction of the State Courts, nor can I perceive any better reason for denying their final jurisdiction in all those cases which the parties shall submit to their decision. All the purposes of the Constitution of the United States will be answered by the erection of Federal Courts, into which any party, plaintiff or defendant, concerned in a case of federal cognizance, may carry it for adjudication; for, it was never intended to force the parties into those courts against their will. The right of the plaintiff to have his case tried before the federal courts, is unquestionable, as he may institute his suit in the State or Federal Courts, at his own option; and it will be sufficient for the defendant sued in a State Court, if the act of congress shall give him the power, to remove the case at any time before judgment into the Federal Courts. I cannot doubt that congress may give this power consistently with the Constitution; for, otherwise, the judicial power of the United States might be eluded at the pleasure of any plaintiff. If then the plaintiff shall elect the state jurisdiction, by bringing his suit in the State Court, and the defendant shall also elect it by submitting to it, they must, from the nature of the judicial power reserved to the states, be concluded by the judgment, unless there be an appeal to some Superior Court, which I have endeavoured to shew is not the case with respect to the Federal Courts.[8]

Coroner: Justice Story, your view of removal?

Justice Story: This power of removal is not to be found in express terms in any part of the Constitution; if it be given, it is only given by implication, as a power necessary and proper to carry into effect some express power. The power of removal is certainly not, in strictness of language; it presupposes an exercise of original jurisdiction to have attached elsewhere. The existence of this power of removal is familiar in courts acting according to the course of the common law in criminal as well as civil cases, and it is exercised before as well as after judgment. But this is always deemed in both cases an exercise of appellate, and not of original jurisdiction. * * * And if the right of removal from state courts exist before judgment, because it is included in the appellate power, it must, for the same reason, exist after judgment. And if the appellate power by the Constitution does not include cases pending in state courts, the right of removal, which is but a mode of exercising that power, cannot be applied to them. Precisely the same objections, therefore, exist as to the right of removal before judgment, as after, and both must stand or fall together.[9]

Col Taylor of Caroline: [As I said earlier, there seems to be no warrant for a defendant’s power of automatic removal, as the only support for it rests on the presumed bias or stupidity of state court judges.]

However, assuming, arguendo, the existence of a removal power, Justice Story is still wrong when he saysif the right of removal from state courts exist before judgment, because it is included in the appellate power, it must, for the same reason, exist after judgment.” That is a Evel Knieval-like leap of faith into a Grand Canyon of logical void. Removal before judgment is far different from removal after. The one, immediate removal, spares the state court from wasting time on hearing the case and also prevents a federal-state confrontation; the other, an appeal, entails a review and possible revision of the state court’s judgment and increases the probability of federal-state confrontation.]

Coroner: How did you, Judge Cabell, respond to the contention that federal appellate power over state courts must exist lest there be no uniformity of decisions in treaty and federal statutory cases?

Judge Cabell: If, after a judgment in a State Court, in any such case, there shall be a complaint of a want of uniformity of decision, of a defective execution of the laws of the union, of a violation of rights under the Constitution, laws or treaties of the United States, or complaints of any other kind whatsoever, the answer to them all, both in relation to foreigners and others, is that the parties have elected their own tribunal; a tribunal, over which the general government has no controul, and for whose decisions, therefore, it owes no responsibility.[10]

Coroner: On a right of removal, you disagree with Col. Taylor?

Judge Cabell: [Yes, I think so, but the existence of it wasn’t an issue in the case, as counsel opposing the federal appellate power did not raise it in the case.]

Coroner: Judge Brooke, in your opinion you answered the argument of counsel that the opinion of the supreme court was conclusive. What did you say?

Judge Brooke: [I]t has been urged by the counsel who support [the supreme court opinion], that the opinion of the supreme court is conclusive upon this court; that having decided on the constitutionality and legality of its own powers, it would be an inversion of the due subordination of an inferior to a superior tribunal, to question its authority. The obvious objection to this argument is, that it assumes the proposition which is denied, and begs the question that is to be decided.[11]

Coroner: What was the guiding principle in your decision on the supreme court’s lack of appellate jurisdiction?

Judge Brooke: [I suppose this:] Where power is not unlimited, however high the tribunal invested with it, subordination must be limited; and there will be a point at which obedience will end, and resistance begin.[12]

Coroner: You also argued that Article 3 could not rightly be construed as a restraint on state courts. What was your reasoning?

Judge Brooke: How it is possible to extract from any expression in this article an authority to this court to exercise any of the judicial powers of the United States, I have not been able to perceive:—that the state courts, by any reasonable construction of the article, can be included in it, I think impossible. They are not ordained and established by the Congress; nor is there any thing in the general tenure of the Offices of the state judges which can bring them within [congress’s] operation. They are not responsible to the general government for the performance of their duty; and irresponsibility to that power which imposes a duty, would be a new principle obviously incompatible with the acknowledged principles of our institutions. The authors of the work referred to, admit[13] . . . that the article recited wears the appearance of confining the causes of federal cognizance to the Federal Courts, and deduce from it a different conclusion, by a train of reasoning which seems to confound judicial power with the subjects that may come within its cognizance.[14]

Coroner: Welcome, Judge Roane, who would have been Chief Justice of the U.S. Supreme Court, had not President Adams made Chief Justice Marshall one of his midnight appointments, and who also joined the Virginia majority in the case.

Judge Roane

Judge Roane: [Thank you.]

Mr. Jefferson: [And the whole course of federal usurpation never would have gotten the deadly foothold that some (even among us) so craved. There are now hundreds if not thousands of cases in which the U.S. Supreme Court has unconstitutionally overruled the state courts. Those decisions were all void for lack of jurisdiction.]

Mr. Hamilton: [Had Roane been on the court, the nation never would have had strength of manufacturing, finance, trade, and military might. It would have remained a backwater of planters, farmers, peasants, and others bearing pitchforks.]

Mr. Jefferson: [That is to say, honest men instead of speculators and financiers.]

Coroner: Let’s ask Judge Roane for his close reasoning in the case at hand. Before that though, what was your overall reaction to the U.S. Supreme Court’s mandate to you to reverse?

Judge Roane: [N]o calamity would be more to be deplored by the American people, than a vortex in the general government, which should ingulph and sweep away, every vestige of the state constitutions. [Even though Virginia resisted, that is what happened in the wake of the supreme court’s lawless opinion.][15]

Coroner: How did you frame your arguments?

Judge Roane: [First by recognizing that neither The Federalist Papers, nor the opinions of members of congress who enacted the legislation “granting” the supreme court the power of revising state court judgments, are of themselves binding, but only perhaps persuasive.]

While I shall never hold myself bound, by the opinions of any individuals, further than they appear to me to be correct, it may be proper to give an answer to the pretensions of such as challenge a superior degree of confidence. Of this character, the two classes of opinions just mentioned, may plausibly be supposed to partake. With respect to the work styled “the Federalist,” while it’s general ability is not denied, it is liable to the objection, of having been a mere newspaper publication, written in the heat and hurry of the battle, (if I may so express myself,) before the Constitution was adopted, and with a view to ensure its ratification. It’s principal reputed author was, an active partizan of the Constitution, and a supposed favourer of a consolidated government. * * *

With respect to the opinions of the members of congress, who passed the judicial act, I had not expected that they would have been quoted, to prove it constitutional. Their opinion was already manifest, in the act itself, and it required the opinions of others, at least, to corroborate and support it. The reiterated opinions of the same men, gains nothing, on this question of constitutionality, whereas the opinion of others, however insignificant, might have been of some importance, to shew a concurrence of sentiment, on the subject.[16]

Coroner: In deciding the case, what general principles guided you?

Judge Roane: 1. [T]he government of the United States is not a sole and consolidated government. The governments of the several states, in all their parts, remain in full force, except as they are impaired, by grants of power, to the general government.

2. [Also that] several sovereign states, may unite themselves together, by a perpetual confederacy, without each, in particular, ceasing to be a perfect state—that they will then form a federal republic, and that each state will remain independent, but will continue liable to fulfil the engagements into which it has entered.

3. [Also by the 10th Amendment which says] “[T]he 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.”

4. “[W]henever a question arises, concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the Constitution? If it be, the question is decided—if it be not expressed, the next enquiry must be, whether it is properly an incident to expressed power, and necessary to its execution.”

5. [N]aturally the jurisdiction granted to a government, is confined to the courts of that government. It does not, naturally, run into and affect the courts of another and distinct government; whether that government operates upon the same, or another tract of country.

6. [A] power ought not to be considered as granted, because, in the opinions of the Judges expounding the Constitution, it ought to have been granted. This point, as to them, is entirely coram non judice.[17]

Coroner: What evidence exists within Article 3 that the federal appellate jurisdiction is limited to appeals from federal courts?

Judge Roane: [The] first section, of the third Article of the Constitution, relates solely and exclusively, to the Courts of the United States. It provides for their establishment, for their tenure in office, and their salaries. It has no eye to the state tribunals. So in the last clause of the second section of the third Article, providing, that the trial of all crimes shall be by jury, and be held in the state in which such crimes shall have been committed, the Federal Courts are, exclusively, contemplated: it would have been absurd, to have provided, that the courts of a state, which has no jurisdiction beyond its limits, should be held within those limits. This clause, then, of the very section in question, in this case, being, undoubtedly, confined to the Federal Courts, it would clearly follow, in a case of doubt, that the whole section was subject to the same restriction. The same restriction is kept up, in the amendments subsequently adopted in the Constitution. In the 6th 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 7th 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, shall 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.[18]

Coroner: Read in pari materia,[19] as Judges Cabell and Brooke also said. You further maintained that under the Constitution and unlike the Articles of Confederation, the federal government, save for one instance, did not act through the states.

Judge Roane: [Yes.] [If . . . ] 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.[20]

Justice Story: [Objection.] It is a mistake that the Constitution was not designed to operate upon states, in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the states in some of the highest branches of their prerogatives. The tenth section of the first Article contains a long list of disabilities and prohibitions imposed upon the states. Surely, when such essential portions of state sovereignty are taken away, or prohibited to be exercised, it cannot be correctly asserted that the Constitution does not act upon the states. The language of the Constitution is also imperative upon the states as to the performance of many duties.[21]

Judge Roane: [Objection to his objection. I never said that the Constitution didn’t operate on states. What I said was “the Constitution of the United States in almost no other instance [than elections], acts through the governments of the several states.” Justice Story converted my statement from “acts through” to acts on. Of course the Constitution acts on the states, but not through them except in the case of elections.]

Coroner: Looking again within Article 3, specifically at §1, which begins “The judicial power of the United States”, and next at §2 which begins “The judicial power”, mustn’t one conclude that the reference in the second refers only to the United States?

Judge Roane: [Right.] It is consistent with every rule of fair construction, to transplant the words “of the United States,” from the first section, into the second . . . .[22]

Coroner: And does that conclusion mean that Article 3, §2, as to which it is claimed there exists appellate jurisdiction over state courts, has no operation on state courts?

Judge Roane: [Right again. The section and the entire article has nothing to do with the decisions of state courts. And the appellate jurisdiction claimed is wrong. E]ach 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.[23]

Coroner: And isn’t also true that it’s within state judicial power to apply the law of the Constitution and other federal laws and treaties?

Judge Roane: [Yes.] 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 [the cases] 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[24] prevails every where, in the case of contracts.[25]

Coroner: The advocates for a federal appellate jurisdiction argue that word “extend” in “The judicial power [of the United States] shall extend to all cases . . .” enumerated is evidence of the wide swath which the framers intended? What was your reply?

Judge Roane: [I]t 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 [under the Confederation]. 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 over the same subjects. The word, according to the best lexicographers, means to widen or enlarge; [see Johnson’s Dictionary];[26] it has no sense, which goes to the exclusion of another jurisdiction.[27]

Coroner: You are in effect saying that the Constitution sets the powers of the federal courts and not those of other of the courts of other governments.

Judge Roane: [Yes.] 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[28] 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;”[29] 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 other 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 Congress may affect 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.[30]

Locke

Mr. Locke: [A jolly good point. State judges are commissioned by states and aren’t slaves of the federal government. The federal government can’t thrust jurisdiction on them.]

Coroner: The states cannot be inferior tribunals of the federal government.

Judge Roane: Had [the judiciary Article] been intended to trench upon causes abiding in the State Courts, also, the most express and explicit words would have been used, to effectuate so unusual and delicate a power.[31]

Coroner: What about Col. Taylor’s point that the lack of specificity in the Constitution on federal appellate jurisdiction over states precludes the exercise of that jurisdiction?

Judge Roane: [He is right.] But, what is this implication, by which this effect is to be produced? By which a power is to be taken from the State Governments, and vested in that of the Union, and the Courts of the former taken into the service of the latter? There is no iota of expression in the Constitution, which either takes it from the States, or gives it to the United States. If it be said, that the implication arises from the nature of the power, I answer, that that power, when exercised in a State Court, is a part of the judicial power of the States, and not of that of the United States, as I have already endeavoured to shew. What, then, do the Gentlemen contend for, but a power neither expressly granted to the General Government, nor taken from the States, nor forming a part of the judicial power of the United States?—If this mode of deducing power be adequate to the purpose, it was very unnecessary, indeed, for the Constitution, after having, in the eighth section of the first Article thereof, expressly granted to Congress, certain important and necessary powers, to go on, in the tenth section, and expressly inhibit them to the States. If, in this instance, both a grant of the powers to the United States, and a denial of them to the several States, were deemed necessary to carry the powers to the General Government, what are we to say of a case in which there is neither such grant, nor such denial, to be found in the instrument?[32]

Coroner: Please summarize where we stand so far.

Judge Roane: I have thus endeavoured to shew, by the preceding detail, that none of the clauses of the Constitution, before mentioned, relate to the State Courts, or to the causes therein depending; that the power now in question, has not been expressly granted to the General Government, nor inhibited to those of the states; that it exists no where but in the general words of the preamble to the Constitution, and is not a necessary incident to any power, which has been specifically granted. It is not necessarily incident to the power of the appellate Court of one government, to correct the proceedings of the Courts of another, though acting upon the Constitution or laws of the former. I have also endeavoured to shew, that the pretence of a constructive power, arising from the general words of the preamble to the Constitution, is not only fatal to the principle, that the government of the United States is one of limited and granted powers, and leaves no limit to the discretion of the legislature, but is peculiarly objectionable as relative to the exercise of the powers of the judiciary. It is only, however, under these general terms of the preamble, and on the ground of an imagination in Congress and the Federal Judges, that the peace of the union is to be only preserved thereby, that the jurisdiction in question has been assumed. This is not the fact; and if it were, those authorities ought still to have waited, until the power had been constitutionally conferred upon them.[33]

Coroner: The Martin case involved a treaty with England. And the Federalist, presented the argument that state courts could not be impartial in such case and might embroil the relations between the United States and foreign nations. How do you respond to that?

Judge Roane: It is not for Congress to distrust those in whom the Constitution has confided; to distrust them in the exercise of an ancient and ordinary jurisdiction, and which has not been taken away, or impaired by any specific grant in the Constitution. While it is not intended to enter into any comparison, of the fitness of the respective judiciaries for that service, it maybe asked, however, is it insinuated or expected, that the Federal Judges will yield to political consequences, and adapt themselves, in matters of treaty, to the policy of the administration?[34]

Coroner: As we mentioned earlier, to distrust judges who have taken an oath of fealty to the Constitution is to presume bad faith. One should presume the good faith of a judge until bad faith becomes apparent.

And what of the argument that foreign nations will hold the United States responsible for the sins of state courts?

Judge Roane: Why shall the sovereign states of America, sovereign in respect of all powers not clearly and specifically granted to congress, not possess the rights claimed and exercised by every other state? Why shall foreign nations require the head of a confederated government, to exercise powers not granted to it by the Constitution . . . . [I]t is no cause of offence to foreign nations, to have their causes decided, and exclusively and finally decided, by the state tribunals.[35]

Coroner: As a matter of law, you argue that the alleged bias of state court judges has been put to rest. Why?

Judge Roane: Since the adoption of the [11th Amendment], the election of jurisdictions has been entirely taken away from foreigners, in all suits against the states, and those suits can, now, be only brought in the state courts, in exclusion of every other: and that, too, in cases in which, from the circumstance of the states themselves being parties, it might, perhaps, be plausibly argued, that the judges of the state courts were not free from bias. I consider that this clear declaration by the American people, and which has never excited a murmur in foreign nations, has put down the notion now in question. It has settled the question forever, that it is no cause of war to foreign nations, that the state judiciaries should finally decide the causes elected to be brought therein, by their subjects. It has, consequently, overthrown the only foundation on which the whole superstructure, of the twenty-fifth section of the judicial act [providing for exclusive federal jurisdiction in appeals], has been supposed to rest.[36]

Coroner: What about the repeated need for uniformity of decisions as the foundation for exclusive federal jurisdiction?

Judge Roane: [Humbug.] That . . . is a chimera, existing only in the imagination of a former congress. It was an after-thought, well calculated to aggrandize the general government, at the expence of those of the states; to work a consolidation of the confederacy; and can only be pretended to be justified by the broad principles of construction, which brought the alien and sedition laws into our code! I would consign it to a common tomb with them, as members of the same family, and originating in the same era of our government.[37]

Coroner: Counsel for Martin admitted that the state courts have concurrent power in treaty cases. How, if at all, can concurrent federal-state power exist partially. That is to say, how can state judiciaries have true concurrent power over a case only to have the decision removed from their hands into the hands of another courts system?

Judge Roane: The idea of a concurrence of power, is at war with that of one of the parties possessing a power of reversal and control over the other.[38]

Coroner: You were presented with the argument that the federal jurisdiction pressed for in this case had been entertained in sundry cases.

Judge Roane: 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 enquiry, 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.[39]

Coroner: And finally, Judge Roane, please state your conclusion in the case.

Judge Roane: 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 judgments 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; and 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 purpose of being carried into complete execution.[40]

Coroner: Thank you. And now I should like to ask Judge Fleming, who also wrote a concurring opinion in the case, for his thoughts on the matter. Judge Fleming, welcome.

Judge Fleming

Judge Fleming: [Thank you.]

Coroner: How did you frame the issue?

Judge Fleming: 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?[41]

Coroner: And what principles guided you in your decision?

Judge Fleming: [The states, under the original Constitution] 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. * * * 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.[42]

Coroner: How did you apply those principles?

Judge Fleming: [To conclude that] there [is] no power delegated to Congress, to interfere, or meddle with [the state courts]; [as there is no] expression in the [Constitution allowing such a power],—for, if . . . the state courts were intended to have been subject to the appellate jurisdiction of the Supreme Court of the United States, a short sentence, or a very few words, would have put the matter out of all doubt: and I cannot presume that, when the collected wisdom of the several states was convened, and, for weeks, were deliberating on a proper system of jurisprudence, for the government of the Union, so important a matter, had the state courts been in contemplation, could have escaped the notice of them all; and have been left to uncertainty and conjecture.[43]

Coroner: Thank you. After the Virginia court rejected the U.S. Supreme Court’s mandate, the case returned to the supreme court.

For that court Martin was written by our panelist Justice Story, “whose expansive nationalism prompted the State rights jibe that he would claim federal admiralty jurisdiction over a corncob floating in a water pail.”[44]


[6] Black’s Law Dictionary, 5th Ed. @ 711

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Published in: on April 2, 2012 at 3:44 pm  Leave a Comment  

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