Page:John P. Branch Historical Papers - Volume 2.djvu/317

 shows that an appeal will lie from the highest state courts to “the subordinate federal tribunals!“ or “to the district courts of the Union!“

This idea carries with it a preference for the federal tribunals, so marked and so unreasonable, and a suspicion of the state courts so derogatory and unjustifiable, as to weaken entirely the authority of the writer, I have, myself, often referred to the Essays in this work, and found great support to my opinions therefrom; but we ought not adopt therefrom all its ideas however absurd, rupugnant or unreasonable. If, without the jurisdiction now claimed, it is alleged that danger will ensue to the constitutional rights of the general government, let us not forget that there is another party to the compact. That party is the state governments who ought not to be deprived of “their only defensive armour.”

As for the contemporaneous construction of the constitution by the congress who passed the judicial act of 1789, and relied upon, also, by the court, there are many circumstances combining to weaken its authority. One alone is conclusive. That act was passed in great haste by congress, and amidst a vast mass and pressure of other business. It had not time enough, therefore, to devote to every particular topic. The authority of that congress has also been reprobated by the judgment of the supreme court itself on another point, in the case of Marbury v. Madison. It was solemnly decided in that case that the act had erroneously given the power of issuing a mandamus to the supreme court. It was so decided, although none who read that decision, can for a moment doubt, that it would have been very grateful to the court to have sustained its jurisdiction.

The supreme court has also much exulted that its own uniform