The Debates and Proceedings in the Congress of the United States, Seventeenth Congress, First Session, [Volume 1] Page: 91
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91
HISTORY OF CONGRESS.
92
Senate.
Amendment to the Constitution.
January, 1822..
citizens, that the bank located branches there; and
the object of the tax was evidently to drive them
back, or destroy them. I contend for the right of
taxation, (not of imposing penalties) a right which
belongs to the essence of sovereignty, whether the
stock belongs to citizens, to foreigners, or to the
United States; and the character of the proprietors
cannot impair the right. But, if Ohio was wrong,
yet the proceedings in relation to her, were an un-
warranted breach of her sovereignty, and a viola-
tion of her rights as a State. She was prosecuted,
and placed into the custody of the Marshal. She
was imprisoned and bound in chains by the Fed-
eral Judiciary. Her treasurer was taken by a pro-
cess from the United States Court; the keys of the
treasury taken from him; the doors of the strong
box opened, and the money taken from the coffers.
But the attitude which she assumed under these
proceedings, was such as to sustain her native dig-
nity of eharcter, while she submitted to the con-
stituted authority of the Union. It is not my in-
tention to enter into a minute detail of the trans-
actions, or to attempt a vindication of her conduct;
but leave that to those who are better acquainted
with the facts. The legal and Constitutional prin-
ciples involved in the case, are sufficient for the
present purpose. The Constitution intended to
guard against the liability of a State, in certain
cases, to be sued ; and it appears to me, that this is
one of those cases. A State can be sued only by issu-
ing the process against its official organs, or agents;
and in this way were the proceedings brought
against Ohio. If we admit, that in every step the
State was wrong, yet the principle is the same;
for if a usurped jurisdiction may interfere when a
State is wrong, the same usurpation may also pre-
vent her from doing right: and right or wrong, a
State is not amenable to the Federal Judiciary for
her conduct. Ohio has evinced great ability, in
contending against this dangerous principle, and
in vindicating the correct and only safe doctrine
on which our Union can be perpetuated.
These are some of the cases in which the laws
of the States have been declared unconstitutional,
and the sovereignties that ordained them prostra-
ted by the Federal Judiciary; and we owe it more
to the patriotic forbearance of the States, that in-
testine commotions have not been the result, than
to a conviction in the minds of those States that
these proceedings were sanctioned by justice or by
the spirit of the Constitution. A remedy is neces-
sary—a tribunal, responsible to all the States,
should be constituted with appellate jurisdiction,
and in its decisions all will acquiesce.
In the case of Cohen vs. Virginia, the conduct
of the Supreme Court has also been a subject of
much animadversion and dissatisfaction. The
most exceptionable part is the construction of their
own power, which gives them jurisdiction in the
case. The Constitution provides, that, in all cases
in which a State is a party, the Supreme Court
shall have original jurisdiction; nothing is said
of appellate jurisdiction in such cases; but here,
when the State was a party, the Supreme Court
exercised, not original but appellate jurisdiction.
It would seem, by this clause of the Constitution,
that it was never designed that a State should be
brought before the Supreme Court of the United
States by writ of error, especially when she had
been a party to the same case in her own courts;
no, not even with citizens of other States or for-
eigners. The 11th amendment to the Constitu-
tion provides, that the judicial power of the United
States shall not be so construed as to extend to any
suit in law or equity, commenced or prosecuted
against one of the United States by citizens of
another State, or by citizens or subjects of a for-
eign State. This amendment was introduced in
consequence of suits brought against Massachu-
setts and Georgia, soon after the formation of the
General Government. Yet the Supreme Court
assume not only original but appellate jurisdiction
in the case of Cohen, under that clause of-the Con-
stitution which provides that the judicial power
of the United States shall extend to all cases in
law and equity arising under the Constitution,
laws, and treaties of the United States. The ar-
gument runs thus: that, although they could not
exercise appellate jurisdiction where a State is a
party, provided the controversy arose under any
other law, yet, when the controversy arises under
the Constitution, laws, or treaties of the United
States, they may assume appellate jurisdiction.
The plain meaning is, that the jurisdiction of the
Supreme Court shall be confined to cases arising
under the Constitution, laws, and treaties of the
United States, and that subject to the restrictions
imposed in the other clause, confining the court to
the exercise of original jurisdiction over States,
and in the amendment relating to the suability of
States; that is, in all cases thus arising they may
exercise jurisdiction, but when a State is a party
their jurisdiction must be original; and if com-
menced or prosecuted by a citizen of another State,
or of a foreign State, they have no jurisdiction in
the case. I have no doubt that this is the con-
struction which ought to be given it; but the court
has given a latitude of construction which abso-
lutely enlarges their jurisdiction, so as to embrace
States and every thing else, when the controversy
arises under the Constitution, laws, and treaties
of the United States, to the exercising of a guar-
dian power over the States, even to the revision
and repealing of their laws; and to controversies
arising under State constitutions and laws, even
affecting their criminal code; for the case of Cohen
was of this last description, and the jurisdiction
was also appellate. But I shall no longer dwell
upon a case that has itself been the subject of a
volume. [Mr. J. here concluded his remarks for
this day, reserving, by the leave of the Senate,
what further he had to say until another day.]
After Mr. Johnson concluded his remarks—
Mr. Otis begged the indulgence of the Senate
for a few minutes, before the resolution was laid
by for the day. He did not rise now, he said, with
an intention of taking any part in the debate gen-
erally. Though he felt not the power at this mo-
ment to do justice to the subject, yet it would not
be difficult to show that, so far as the gentleman
from Kentucky had proceeded in his attempt to
sustain his proposition, he had failed to exhibit
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Gales and Seaton. The Debates and Proceedings in the Congress of the United States, Seventeenth Congress, First Session, [Volume 1], book, 1855; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc30365/m1/44/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.