corrected. I propose to consider these in the order stated.

There are few who will not admit, that the government has, in practice, departed, more or less, from its original character and structure;-however great may be the diversity of opinion, as to what constitutes a departure;-a diversity caused by the different views entertained in reference to its character and structure. They who believe that the government of the United States is a national, and not a federal government, or who believe that it is partly national and partly federal,-will, of course, on the question,-whether it has conformed to, or departed from its true theory,-form very different opinions from those who believe that it is federal throughout. They who believe that it is exclusively national, very logically conclude, according to their theory, that the government has the exclusive right, in the last resort, to decide as to the extent of its powers, and to enforce its decisions against all opposition, through some one or all of its departments:-while they who believe it to be exclusively federal, cannot consistently come to any other conclusion, than that the two governments,— federal and State,-are coequal and co-ordinate governments; and, as such, neither can possess the right to decide as to the extent of its own powers, or to enforce its own decision against that of the other. The case is different with those who believe it to be partly national, and partly federal. They seem incapable of forming any definite or distinct opinion on the subject,-vital and important as it is.

Indeed, it is difficult to conceive how, with their views, any rational and fixed opinion can be formed on the subject: for, according to their theory, as far as it is national, it must possess the right contended for by those who believe it to be altogether national; and, on the other hand, as far as it is federal, it must possess the right, which those who believe it to be wholly federal contend for. But how the two can coexist, so that the government shall have the final right to decide on the extent of its powers, and to enforce its decisions as to one portion of its powers, and not as to the other, it is difficult to imagine. Indeed, the difficulty of realizing their views extends to the whole theory. Entertaining these different opinions, as to the true theory of the government, it follows, of course, that there must be an equal diversity of opinion, as to what constitutes a departure from it; and, that, what one considers a departure, the other must, almost necessarily, consider a conformity,-and, vice versa. When compared with these different views, the course of the government will be found to have conformed, much more closely, to the national, than to the federal theory.

At its outset, during the first Congress, it received an impulse in that direction, from which it has never yet recovered. Congress, among its earliest measures, adopted one, which, in effect, destroyed the relation of coequals and co-ordinates between the federal government and the governments of the individual States; without which, it is impossible to preserve its federal character. Indeed,

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I might go further, and assert with truth, that without it, the former would, in effect, cease to be federal, and become national. It would be superior,and the individual governments of the several States, would become subordinate to it,-a relation inconsistent with the federal, but in strict conformity to the national theory of the government.

I refer to the 25th section of the Judiciary Act, approved the 24th Sept., 1789. It provides for an appeal from, and revisal of a "final judgment or decree in any suit, in the highest courts of law or equity of 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 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 such title, &c., specially set up by either, &c." The effect, so far as these cases extend, is to place the highest tribunal of the States, both of law and equity, in the same relation to the Supreme Court of the United States, which the circuit and inferior courts of the United States bear to it. To this extent, they are made equally subordinate and subject to its control; and, of course, the judicial depart

ments of the separate governments of the several States, to the same extent, cease to stand, under these provisions, in the relation of coequal and co-ordinate departments with the federal judiciary. Nor does the effect stop here. Their other departments, the legislative and executive,-to the same extent, through their respective State judiciaries, no longer continue to stand in the relation of coequals and co-ordinates with the corresponding departments of the federal government. The reason is obvious. As the laws and the acts of the government and its departments, can, if opposed, reach the people individually only through the courts,-to whatever extent the judiciary of the United States is made paramount to that of the individual States, to the same extent will the legislative and executive departments of the federal government,—and, thus, the entire government itself, be made paramount to the legislative and executive departments-and the entire governments of the individual States. It results, of course, that if the right of appeal from the State courts to those of the United States, should be extended as far as the government of the United States may claim that its powers and authority extend, the government of the several States would cease, in effect, to be its coequals and co-ordinates; and become, in fact, dependent upon, and subordinate to it. Such being the case, the important question presents itself for consideration,―does the constitution vest Congress with the power to pass an act authorizing such appeals?

It is certain, that no such power is expressly

delegated to it: and equally so, that there is none vested in it which would make such a power, as an incident, necessary and proper to carry it into execution. It would be vain to attempt to find either in the constitution. If, then, it be vested in Congress at all, it must be as a power necessary and proper to carry into execution some power vested in one of the two other departments, or in the government of the United States, or some officer thereof: for Congress, by an express provision of the constitution, is limited, in the exercise of implied powers, to the passage of such laws only, as are necessary and proper to carry into effect, the powers vested in itself, or in some other department, or in the government of the United States, or some officer thereof. But it would be vain to look for a power, either in the executive department, or in the government of the United States or any of its officers, which would make a law, containing the provisions of the section in question, necessary and proper to carry it into execution. No one has ever pretended to find, or can find any such power in either, all, or any one of them. If, then, it exist at all, it must be among the powers of the department of the judiciary itself. But there is only one of its powers which has ever been claimed, or can be claimed, as affording even a pretext for making a law, containing such provi sions, necessary and proper to carry it into effect. I refer to the second and third clauses of the third article of the constitution, heretofore cited. The second extends the judicial power "to all cases in law and equity, arising under this constitution, the