whether supreme or subordinate, are the mere creatures of the sovereign power, designed to expound and carry into effect its sovereign will. No independent state ever yet submitted to a judge on the bench the true construction of a compact between itself and another sovereign. All courts may incidentally take cognizance of treaties, where rights are claimed under them; but who ever heard of a court making an inquiry into the authority of the agents of the high contracting parties to make the treaty—whether its terms had been fulfilled, or whether it Had become void on account of a breach of its conditions on either side? All these are political and not judicial questions. Some reliance has been placed on those provisions of the Constitution which constitute "one Supreme Court," which provide "that the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties," and which declare "that the Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties, &c., shall be the supreme law of the land," &c. Now, as to the name of the Supreme Court, it is clear that the term has relation only to its supremacy over the inferior courts provided for by the Constitution, and has no reference whatever to any supremacy over the sovereign states. The words are, "The judicial power of the United States shall be vested in one Supreme Court, and such inferior courts as Congress may, from time to time, establish," &c. Though jurisdiction is given "in cases arising under the Constitution," yet it is expressly limited to "cases in law and equity," showing conclusively that this jurisdiction was incidental merely to the ordinary administration of justice, and not intended to touch high questions of conflicting sovereignty. When it is declared that the "Constitution, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land," it is manifest that no indication is given, either as to the power of the Supreme Court to bind the states by its decisions, or as to the course to be pursued in the event of laws being passed not in pursuance to the Constitution. And I beg leave to call gentlemen's attention to the striking fact, that the powers of the Supreme Court, in relation to questions arising under "the laws and the Constitution," are coëxtensive with those arising under treaties. In all of these cases, the power is limited to questions arising in law and equity; that is to say, to cases where jurisdiction is incidentally acquired in the ordinary administration of justice. But as, with regard to treaties, the Supreme Court has never assumed jurisdiction over questions arising between the sovereigns who are parties to them, so, under the Constitution, they cannot assume jurisdiction over questions arising between individual states and the United States.
But to prove, as I think conclusively, that the judiciary were not designed to act as umpires, it is only necessary to observe that, in a great majority of cases, that court could manifestly not take jurisdiction of the matters in dispute. Whenever it may be designed by the federal government to commit a violation of the Constitution, it can be done, and always will be done, in such a manner as to deprive the court of all jurisdiction over the subject. Take the case of the tariff and internal improvements; whether constitutional or unconstitutional, it is admitted that the Supreme Court have no jurisdiction. Suppose Congress should, for the acknowledged purpose of making an equal distribution of the property of the country among states or individuals, proceed to lay taxes to the amount of $50,000,000 a year. Could the Supreme Court take cognizance of the act laving the tax, or making the distribution? Certainly not.
