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MVB notes on relation between state and federal judicial power,  1821

<illegible> of <illegible​> The first clause of the 2d Section to all that gives the <jurisdiction> the residue is <last> the distribution of that which is given.
<Genl> <Ham> "It is not the mere possibility of in convenience that can by implication extinguish a pre-existant right of sovereignity 
<p> of S. Before the constitution states could not be sued, by the confederation congress had power only to establish Courts for the trial of <illegible> & felonies committed on the high seas & for obtaining appeals in all cases of capture.
2 If the framers of the constitution had instructed that States should be suable they would have provided a mode of carrying their judgments into effort
3 <Thing> constitution of the constitution

 1 creates a cause of action where none existed before

2d a power to sue <not>

3d a <tough> appointment of it <creation> of the State jurisdiction over these newly created <jurisdiction> to the U. S. Court & that solely on the ground that the Jurisdiction of the S. Court is made to extend to all cases in law & equity.

4th. If a state cannot be made deft. in an original suit in the S. Court it cannot a writ of Error. If the original Su. in excluded the appellate must be. The word are &c

5th The submission of a private question between the State and an individual to the federal court is nothing in comparison with suffering an appeal from the vivision of the State courts in a criminal case. There is no sovereignty where the authority of the courts are not Supreme in criminal court.

6. The delay in the administration <to> <the> criminal <system> in the States would be great by allowing such an appeal.

7th. The author of the report of 1799 (Mr Maddison) denies that the word cases in law & equity included criminal cases & therefore denies & therefore denies the right of appeal even from inferior federal courts became that would in effect take away the trial by Jury.

8th. The danger of States passing counteracting laws to defeat the measure of the general government, no real danger because &c.

9th. The safety of leving this matter to the State authorities <would> by <considering> the power they possess & the manner in which they have ben carried.

The Laws vs. Legislature

                      Taxation without suit

                      Command of the military


911 If necessary to to have controul of the courts in controul of the Legislature equally <necessary>

10. The supposd necessity of a supremacy power over the State courts favord on a supposition that they would lend themselves to portion & <convine> at the evasion & disregard of congress. If so some restraint ought also to be imposed on the juries for they must come form the state where the offence is committed &c it is not likely that the courts would be more inclined to favour than they. The jury should be authorised to be taken from a different state if such degeneracy is supposed possible.

11. The State legislatures & judiciaries are are bound by oath to support the constitution of the U. States.

12 Tyrany as likely in the one side as the other, it is as probable that the federal legislature will seek to destroy State rights & the federal judiciary to sustain them as to suppose that such will be the conduct of state legislatures & Courts.

13th. If the States wish the destruction of the federal courts they have only to stand still, not to choose electors or Senators & the government cannot organize

On the adoption of the Constitution the following among other Amendments were proposed by the different States


1 That the jurisdiction of the Sup. Court should only extend to treaties made under the authority of the U. States having out laws & constitution

2. To give their jurisdiction as to state only betswwn State & State


with an explanation that the judicial power of the U. States was cases in which the state is a party does not extend to criminal prosecution or to authorise any Suit by any person agt. a State.

&c. &c.

North Carolina

The same as Virginia &c the same words & also a <saying> agt interference with the State in redemption of their paper already emitted.

Credit. South Carolina

Creditors by law were obliged to receive barren & useless lands in payment for Contracts made in gold & Silver

In Virginia <amend> <were> <induced> to stop the courts of <Justice>

The <for> the brink of a civil war.

Vermont & N. Hampshire & great satisfaction to their several <grants> prevailed among the people.

Nyork absolutely refused compliance with the requisite of <illegible>

In some state laws were made directly agt. the treaty of <power>.

The <senate> are in the quality of Ambassador of the State govermts and on their devotion & their <defiance> agt. the encroachmts of the federal govermt &c were it not for & the consolidaton of the States would ensure. Too much provision cannot be made agt. the consolidation of the States.

The State governmts represent the wishes & feelings & local interts of the people. They are the safe guard & <illegible> of the government, they will protract the period of our liberties, they will afford a Shelter agt. the absence of power & will be the national avengers of our violated rights.

<Powers> of representatives dependant upon the States as to the quality of <duties> &c

Letters of Hampden on the case of Cohen vs Virginia

No 1. The doctrine of the case is that the Supreme Court is at this time <infor> by law to remove the record from a State court where wehre upon an indutment for an offence agt. a state law a defendant has set up a defence under the constitution on laws of the Union which the State court has <overreacj>

In criminal cases no writ of Error or appeal lies to the Circuit courts.

The Constitution & laws of the union are as imperative on the State Courts as federal. The judges of both are bound by oath to support the constitution of the U. S.

It was impossible to define the line between the power granted & those reatianed. They are both sovereign & there is therefore debatable ground. Which the Physical force of the nation may fix but without warrant from the constitution.

No. 2

In the discussions which produced the 11th amendment no one pretendeded that the the States had subjected themselves to be sued by any general provision in the constitution, according to the judicial interpretation each State has subjected itself to be sued 1st By an other State 2d By a foreign State 3d By the subject or citizen of a different or foreign State. This was done by express surrender & upon the settled principles of interpretation <illegible> implied surrender by general words. Viz. In those cases it is not necessary that the question should arise under the constitution &c.

<illegible> <illegible> the If there is no exception arising from the character of the parties why canot the U. States be sued. The court say it is the universal opinion that the U. S. cannot be sued as the judicial act does not warrant it. Hampden says it is the opinion <such> because the constitution does not warrant it. In Chisholm vs The <Erectors> of Georgia 2d Dallas 419 this question is discussed.

The doctrine is alike applicable to appl original as appellate jurisdiction & of course the Bank might have said the State of Ohio instead of its servant in the federal court.

No. 3

The definition of a case in law, speech of C. J. Marshal in the case of Jonathan Robbins 5th <Whole> <appears>

There is a great difference between a question in law & a case in law to constitute the latter "ther must be parties to come into court who can be reached by its process & bound by its power. Whose rights admit of ultimate decision by a tribunal to which they are bound to submit."

All judicial power rested in the federal government must be original without the original there can be no appellate jurisdiction. A case in law in the constitution must be such as congress might invest some federal tribunal with do not embrace a cases where no original jurisdiction could arise in the tribunals of the nation nor was the 25th section intended to extend beyond such cases, the Judiciary act did not <enact> the judicial power of the nation.

The judicial power extends now beyond that legislature it cantrouls contracts between Citizens of distinct states

In Martin V Hunter 1st <White> 336 the court admit that the constitution is imperative upon congress to rest all the jurisdiction of the U. States in the shape of original in the S. & inferior courts. That the jurisdiction of the U.S. is in some cases exclsuive of the state courts & in all may be so. That no part of the criminal jurisdiction of the U. S. can consistently with the constitution he delegated to state tribunals the admiralty & maritime jurisdiction is of the same character & it can only be in case where the states before the constitution possessed jurisdiction independent of national authority that this can now constitutionally examine a concurrent jurisdiction

No. 4

Marbury v Maddison. the court say that the <place> import of <the<Chanel> 174 distribution of jurisdiction in the constitution between original & appellate is that in one class of cases it is original & not appellate & in the other appellate & not original, & the same ex parte Bollmar & Swartwort 4th <Grant> 103. the court say that without a violation of the constitution that devision of our jurisdiction can neither be restricted or extended & that such was the doctrine of Marbury & Madison, but in Cohen v Virginia Juge <Johnson> thought different.

 A State cannot sue a Citizen of an other State as the Circuit court because see page 24.

To provide that the S. C. shall have exclusive juridiction & appellate jurisdiction of the same cases would imply a <compression> of juridiction. This appellate is not necessary to secure the original all proceedings in the courts in the reserved matters are coram non judice & the carties & rank simple wrong doers. The 25 & 26th section of the act of 1790 for the punishment of certain crimes agt the U. States it is provided that if any one pass under or his servants is arrested, the procedings shall be null & void & the <illegible> parties & are made violators of the laws of nation imprisoned for 3 years & fined at the discretion of the court.

No. 5

It is only where suit are brought agt ambassadors that they are affected.

The court admit that "every case between a State and its citizens is of the description in which an original suit might not be instituted in the federal courts. Hampden says that ere long this will be treated as a <decider> of the judge beyond the case.

No. VI

N one denies the supremacy of the ^federal^ constitution as the law of the land byt the supremacy of the law & of the governmt are different things.

If a mail robber commits murder the law of the federal governmt in yields to the law od the State & the robber must be tried for the murder.

A deliberate resolution of the law fundamental laws of that governmt by the State authorities is not supposed to be possible any more than by the that governmt of the union. It is the theory of the constitution that the restrictions <composed> by it would be observed by all the parties.

No. VIIth

What power (ask the court) the Goverment could be exerted by its own means in a state disposed to resist its execution by a cause of Legislation. What power of the States (asks Hampden) can be executed if the federal judiciary can interpose injuctions & prohibition while proceedings are in fieri & <must> <or> remove them upon writ of <mori> after judgment. Such a power he adds like Arons Serpent must swallow up every other. Such a <combustion> (say the court) would prostrate the govermt and its laws at the feet of every State in the union. The opposite (says Hapden) prostrates any state in the Union at the feet of the federal judiciary.

The respective danger of such <emolument> page 37, 38, 39, acts of the different grants & abilities.


A power of the federal judiciary to <correct> the judgment of State courts would not avail unless Congress aided them by Legislature acts to carry them into effect for the same disposition which owuld lead to opposition to the law would Constitution would induce them to <resume> return to the writ of Error & such legislative interposition would if constituted be extremely odious 

No. IX

It was the universal opinion <illegible> the case of Cohen v Virginia that the federal courts had no jurisdiction of offence committed agt. the States

A Marshal committing homicide he must be tried by State laws. At present the <uncontroulable> exercuse of criminal jurisdiction is most securely comfided to the State courts. The court of the U. States are vested with no power to scrutinize into the proceedings of the State courts in criminal cases 1st Wheaton 377

Martin V Hunter. 1816. The Court admit that p money paid for an illegal tax imposed by a state on its citizen cannot be recovered because the Federal court never had jurisdiction of ^our^ the contract, for the same reasons their jurisdiction is excluded in case of criminal offences agt. the State.

The Supreme Court are not authorized by the 25th Section to take jurisdiction.

Extract from the federalist page 72 of Hampden

Source: DLC Library of Congress
Collection: MVB Papers (DLC)
Series: Series 4 (3 December 1821-31 December 1824)