Page:Southern Historical Society Papers volume 40.djvu/18

14 "No," said South Carolina, in substance, speaking through Hayne and Calhoun; "the constitution of the United States empowers the federal Supreme Court to decide only 'all cases in law and equity arising under this constitution, the laws of the United States, and treaties made . . . under their authority.' " That is the language of the constitution: "all cases in law and equity." And questions of sovereignty, argued South Carolina, come not within the scope of cases in law and equity, which are limited, by the well known common-law use of the term, to an altogether different class of cases. The historical correctness of this contention of South Carolina's is supported by James Madison in his journal of the constitutional convention. Madison, the reporter, says of himself, the delegate: (24)

"James Madison doubted whether it was not going too far to extend the jurisdiction of the federal supreme court generally to cases arising under the constitution, and whether it ought not to be limited to cases of a judiciary nature." (The contention of Hayne and Calhoun, exactly.) "The right of expounding the constitution in cases not of this nature ought not to be given to that department.

"The [pending] motion of Dr. Johnson was agreed to nem. con., it being generally supposed that the jurisdiction given was constructively limited to cases of a judiciary nature." As if to clinch the matter beyond a peradventure, the words "in law and equity" were afterward inserted into the jurisdiction clause here discussed.

(Just a word here as to the man here quoted as authority, James Madison of Virginia, "father of the constitution." From the standpoint of a constitutional constructionist, Madison's career was somewhat that of a pendulum. Rather centralistic at the time of the general convention of 1787 that framed the constitution and submitted it to the States for ratification or rejection—certainly moderately so, as disclosed by his own utterances, from time to time, in the debates of that convention, a very few years later he became Jefferson's own right-hand man in opposing the radically centralistic trend of the Adams