State Documents on Federal Relations/24

24. Reply of the General Assembly of Virginia to Pennsylvania.

January 26, 1810.

The foregoing resolutions of Pennsylvania were not concurred in by a single State. On the contrary the Legislatures of at least eleven States passed resolutions of disapproval, as follows: New Hampshire, Massachusetts, Vermont, New Jersey, Maryland, Virginia, North Carolina, Georgia, Ohio, Kentucky, Tennessee. See Journals of the Senate and House of Pennsylvania, for 1809–1812; Ames, Proposed Amendments, 160, notes, 329. The most elaborate of these replies came from Virginia. It is of unusual interest owing to both the previous and subsequent action of Virginia relative to the jurisdiction of the Federal Government.

The committee, to whom was referred the communication of the governor of Pennsylvania, covering certain resolutions of the legislature of that state, proposing an amendment to the constitution of the United States, by the appointment of an impartial tribunal to decide disputes between the state and federal judiciary, have had the same under their consideration, and are of opinion that a tribunal is already provided by the constitution of the United States, to wit: the Supreme Court, more eminently qualified from their habits and duties, from the mode of their selection, and from the tenure of their offices, to decide the disputes aforesaid in an enlightened and impartial manner, than any other tribunal which could be erected.

The members of the Supreme Court are selected from those in the United States who are most celebrated for virtue and legal learning; not at the will of a singal individual, but by the concurrent wishes of the President and Senate of the United States, they will therefore have no local prejudices and partialities.

The duties they have to perform lead them necessarily to the most enlarged and accurate acquaintance with the jurisdiction of the federal and several state courts together, and with the admirable symmetry of our government.

The tenure of their offices enables them to pronounce the sound and correct opinions they may have formed, without fear, favor, or partiality.

The amendment to the constitution proposed by Pennsylvania seems to be founded upon the idea that the federal judiciary will, from a lust of power, enlarge their jurisdiction to the total annihilation of the jurisdiction of the state courts, that they will exercise their will instead of the law and the constitution. This argument, if it proves anything, would operate more strongly against the tribunal proposed to be created which promises so little, than against the Supreme Court, which for reasons given before had every thing connected with their appointment calculated to ensure confidence. What security have we, were the proposed amendments adopted, that this tribunal would not substitute their will and their pleasure in the place of law?

The judiciary are the weakest of the three departments of government, and least dangerous to the political rights of the constitution; they hold neither the purse nor the sword, and even to enforce their own judgments and decrees, must ultimately depend upon the executive arm. Should the federal judiciary, however, unmindful of their weakness, unmindful of the duty which they owe to themselves and their country, become corrupt, and transcend the limits of their jurisdiction, would the proposed amendment oppose even a probable barrier in such an improbable state of things? The creation of a tribunal, such as is proposed by Pennsylvania, so far as we are enabled to form an idea of it from a description given in the resolutions of the legislature of that state, would, in the opinion of your committee, tend rather to invite than prevent a collision between the federal and state courts. It might also become, in process of time, a serious and dangerous embarrassment to the operations of the general government.

Resolved therefore, That the legislature of this state do disapprove of the amendment to the constitution of the United States, proposed by the legislature of Pennsylvania.

Resolved also, That his excellency the governor be, and is hereby requested, to transmit forthwith a copy of the foregoing preamble and resolutions, to each of the senators and representatives of this state in Congress, and to the executive of the several states in the Union, with a request that the same may be laid before the legislatures thereof.

[Acts of General Assembly of Virginia, 1809–10, 102, 103.]