Terry, C. J., after stating the facts, delivered the following dissenting opinion:
The questions raised upon the argument of this motion are: First, the constitutionality of the 25th section of the Judiciary Act of 1789, which provides for an appeal from the highest State tribunals to the Supreme Court of the United States ; Second, whether, admitting the validity of the Act, the case under consideration is within its provisions ; and Third, whether the authority to determine this latter question can be properly exercised by this Court.
While all the members of the Court agree as to the conclusion at [182]which we have arrived, I have the misfortune to differ with my associates upon the first and third propositions.
I think, if we admit the appellate jurisdiction of the Supreme Court of the United States over the judgments and decisions of this Court, it must follow that the province of determining the cases in which the jurisdiction can be exercised' belongs to the appellate Court, and that a contrary doctrine would involve the inconsistency of allowing the jurisdiction of the superior to be defeated by the action of the inferior tribunal.
The constitutionality of the Judiciary Act has been the subject of. much controversy between Federal Courts and the Supreme Courts of several of the States. Able arguments on both sides have been delivered from the Bench, by lawyers who have had few superiors in any age or country, and whose thorough and laborious investigations have so nearly exhausted the subject as to leave little to be said in support of either position, which has not already been so well expressed as to render presumptuous an attempt to add to the force and cogency of the reasoning. The controversy arose in the case of Martin v. Hunter, lessee, at a time when the judicial offices of the United States were filled by men who were identified with the Federal party.
The principles of this party, which favored a liberal interpretation of the provisions of the Constitution in favor of the powers of the General Government, found a zealous and able exponent in Mr. Justice Story, (see 1 Wheaton, 298) while those who contended for a strict construction of the instrument Avere no less ably represented by Justice Roane, of the Virginia Court of Appeals. (4 Mumford, page 1.)
The judgment of the Virginia Court of Appeals in the case referred to had been reversed by the Supreme Court of the United States, and the cause remanded to the State Court, with directions as to future proceedings. After full argument and mature dliberation, the Court of Appeals unanimously refused to obey this mandate; each of the Judges filed an opinion in the case, and the opinion of the Court Avas entered as follows, “ The Court is unanimously of the opinion that the appellate pOAver of the Supreme Court of the United States does not extend to this Court, under a sound construction of the [183]Constitution of the United States; that so much of the twenty-fifth section of the Act of Congress to establish the judicial Courts of the United States as extends the appellate jurisdiction of the Supreme Court to this Court is not in pursuance of "the Constitution of the United States; that the writ of error in this case was improvidently allowed under the authority of that Act; that the proceedings thereon in the Supreme Court were coram non judice in relation to this Court; and that obedience to its mandate be declined by this Court.” The case was again carried to the Supreme Court of the United States, where the judgment of the Court of Appeals was reversed; but no attempt was made to enforce obedience to the judgment on the part of the State Court, which remained contumacious. On the contrary, it was expressly admitted that that Court had no power to do so. (See opinion of Mr. Justice Johnson.) So that, according to the authority of that ease, the judicial system of the United States presents the strange anomaly of a Court of final resort, vested with full and ample appellate jurisdiction, without the power of compelling obedience to its judgments and process on the part of the inferior tribunals. The claim of jurisdiction asserted by the Federal Courts in Martin v. Hunter’s Lessee was reaffirmed in later cases by the same tribunal, and with a few exceptions has been acquiesced in by the Courts of the various States, generally on the ground of stare decisis.
It has never been admitted in Virginia, has always been repudiated by Georgia, and has lately been questioned in several other States. The decisions of the United States Supreme Court, on this question, embody the political principles of a party which has passed away. The reasoning by which it is attempted to sustain them is based upon rules of construction now universally regarded as unwarranted by the letter or spirit of the Constitution, and directly opposed to those adopted by the same tribunal in the late case of Dred Scott v. Sanford, (19 Howard) and in a more recent case in 20 Howard, in which the admiralty jurisdiction of State Courts is admitted, notwithstanding the 9th section of the Judiciary Act.
The force and authority of the opinions of the Supreme Court of the United States upon the question of jurisdiction, as well as all [184]others of a political nature, is much weakened by the consideration that the political sentiments of the Judges in such cases necessarily gave direction to the decisions of the Court. The Legislative and Executive power of the Government had passed, or was rapidly passing into the hands of men entertaining opposite principles. Regarding the Judicial as the conservative department; believing the possession by the General Government of greater powers than those expressly granted by the Constitution to he absolutely necessary to its stability, they sought, by a latitudinarian construction of its provisions, to remedy the defects in that instrument, and by a course of judicial decisions to give direction' to the future policy of the Union. In order to accomplish this end, the Court almost invariably upheld every assumption of power by the General Government, (however at variance with the limitations of the Constitution) including the alien and sedition law, the embargo Act, the charter of a United States Bank, and a retrospective bankrupt law; the constitutionality of which Acts is supported by the same course of reasoning, and the same liberal construction of the implied powers of Congress, as is applied to the Judiciary Act of 1789.
AH the arguments adduced in favor of the claim of jurisdiction on the part of the Federal Court are answered, and the unconstitutionality of the 25th section of the Judiciary Act, to my mind, conclusively established, by the able opinions in Hunter v. Martin, 4 Mumford ; Padelford, Fay &’ Co. v..Mayor and Aldermen of Savannah, 14 Geo. 438 ; Johnson v. Gordon, 4 Cal. 368 ; and the very elaborate opinion of Mr. Chief Justice Bartley, in the case of the Piqua Bank v. The Treasurer of Miami County, 6 Ohio State Rep. 342, in which all the authorities are collated.
The results of these authorities are :
1. That the judiciary system created by the Constitution of the United States is entirely disconnected with and independent of the judiciary of the several States.
2. That the appellate jurisdiction of the Supreme Court of the United States, conferred by the 2d section of article 3d of the Constitution, does not extend to the State Courts, hut is confined to the inferior Courts mentioned in the preceding section.
[1853]. That there is no provision in the Federal Constitution from which a supervisory power over the State Courts can be vested in the Supreme Court of the United States, by any fair or legitimate implication or construction.
4. That in a large class of cases the jurisdiction of the Federal and State Judiciary is concurrent, and in all such cases the judgment of the highest Courts of the system first acquiring jurisdiction is final and conclusive.
5. That the Government of the United States is one of delegated powers ; that the right to decide ultimately upon the extent of powers granted has not been delegated to the United States, nor prohibited to the States, and is reserved to the States by the provisions of the tenth amendment to the Constitution ; and therefore, the decision of the Supreme Court of the United States on such questions is not binding on the State Courts.
6. That the right and jurisdiction to determine finally all controversies between her citizens, and all conflicting claims to property within her limits, is an essential element of sovereignty, which was possessed by each State before the adoption of the Constitution, and this right was not surrendered by that compact.
In answer to the suggestion that this question of jurisdiction is, so far as California is concerned, settled by the A<pt of the Legislature of 1855,1 have only to say that there is no provision in the Constitution which delegates to the Legislature of California the power to enlarge the jurisdiction of the Federal Courts.
The question here raised was presented to the Court in Gordon v. Johnson (reported in 4 Cal. 368). In the opinion delivered in that case all the Judges who at the time constituted the Supreme Court of California concurred. Of the correctness of the principles there announced I am entirely satisfied. Indeed, had the question been presented for the first time, the soundness of the opinion would scarcely have been questioned. As an original question, the entire independence of the State Judiciary is generally conceded by the bar: almost the only argument now advanced in support of the appellate power of the Federal Courts is that founded on expediency and long acquiescence.
[186]The expediency and policy of providing a tribunal with general appellate jurisdiction over a certain class of cases, whether they were originally instituted in the State or Federal Courts, in order that uniformity of decisions in such cases might be secured, was a question for the Convention which framed the Constitution ; it is sufficient for me that they made no such provision. But it is said, the decision of the Supreme Court of the United States upon the point has so long been acquiesced in that it ought not now to be disturbed.
The answer to this proposition is, that if the doctrine that all usurpations of power which have been unwillingly acquiesced in for a length of time ripen by prescription into law had been acted on in the past, the principles of civil and religious liberty would have been as little understood, and the rights of man as little regarded in the nineteenth as in the tenth century; and if adopted for the future, will be an effectual bar to all progress.
This is not, in my opinion, one of those questions to which the doctrine of stare decisis ought to be applied. No interests which have grown up, no rights of property which may have been acquired under the rule established, would be endangered or lost by its abrogation. The effect of the contrary doctrine would be felt only by future litigants, and could not by possibility have a retroactive operation.
Hoary usurpations of power and jurisdiction on the part of the Federal Judiciary, or time-honored encroachments on the reserved rights of the sovereign States, are entitled to no additional respect on account of their antiquity, and should be as little regarded by the State tribunals as if they were but things of yesterday.
It is the duty of Judges to decide all questions which arise in cases before them according to the Constitution and laws; and while the decisions of other tribunals should be -respectfully considered, and all due weight given to them to which they may be entitled by reason of the learning and ability of the tribunal from which they emanate, yet respect for their authority, or a rigid adherence to precedent, should never be permitted to influence a Judge to go counter to his own convictions of the requirements of the Constitution and laws. For these reasons I think the application should be denied.