speedy and effectual measures to secure the adoption of this amendment to the Constitution. In the next session of Congress the amendment was reintroduced in the Senate.2 Two unsuccessful attempts were made to amend it-one by Gallatin,3 to permit suits against States in the United States courts instituted by individuals only in cases arising under treaties;* the other to permit the jurisdiction of the United States to extend as provided in the Constitution, except when the cause of action shall have arisen before the ratification of the amendment. This, if passed, would have retained the jurisdiction of the court over all future cases, but would have dismissed all the previous cases, such as those then agitating the country, which had arisen out of the Revolutionary war.

The amendment passed the Senate by the large majority of 23 yeas to 2 nays. In the House an attempt to amend was made by adding to the article the following words: "When such States shall have previously made provision in their own courts whereby such suits may be prosecuted with effect." It received only 8 votes in its favor, and the Senate proposition passed by a vote of 81 yeas to 9 nays, and soon after received the necessary ratification and became incorporated into the Constitution as the eleventh amendment.7

But even this amendment did not go far enough in restricting the jurisdiction of the Federal courts to satisfy all. In 1805 Senator Breckenridge of Kentucky introduced an amendment from the legislature of his State, which read: "The judicial power of the United States shall not be construed to

1 App., Nos. 319a, 319b, 319c, Massachusetts, Connecticut, and Virginia. The Massachu setts resolutions declared that the power claimed of compelling a State to be made a defendant in United States courts in such cases is "dangerous to the peace, safety, and independence of the several States and repugnant to the first principles of a Federal Government." The Virginia resolutions declared "the decision of the Supreme Federal Court incompatible with and dangerous to the Sovereignty and Independence of the Individual States, as the same tends to a general consolidation of these confederated Republicks."

2 App., No. 321.

3 App., No. 322.

4If such a provision had been adopted the recent trouble with Italy caused by the Louisiana episode might have been avoided by giving the relatives of the persons killed an opportunity to seek redress in the United States courts.

5 App., No. 323.

It would have prevented further action in the Gideon Olmstead case, which was not finally settled until 1809. The case grew out of the seizure of the sloop Active in 1778 and the difference in the decisions rendered by the Pennsylvania court of admiralty and the Committee of Appeal of the Congress of the Confederacy. Annals of Congress, Eleventh Congress, second session, pp. 2253-2270. Post, par. 77.

7 App., No. 321, for list of States ratifying. In Hollingsworth v. Virginia, 3 Dall., 378, decided in 1798, it was declared that the amendment had been constitutionally adopted, not requiring the signature of the President.

extend to controversies between a State and the citizens of another State; between citizens of different States; between citizens of the same State claiming land under grants of different States, and between a State and the citizens thereof and foreign States, citizens, or subjects." This same amendment was indorsed in the following year by the legislatures of Georgia, Pennsylvania, New Jersey, and Vermont. In 1807 Henry Clay, shortly after his first appearance in Congress, while filling the unexpired term of Senator, submitted a resolution similar to that proposed by the Senator from his State two years before.3

In 1833 the legislature of Georgia, in her call for a constitutional convention, expressed a desire that the Constitution should be so amended "that the jurisdiction and process of the Supreme Court may be clearly and unequivocally settled."* This subject was without doubt suggested by the recent conflict of jurisdiction between the Supreme Court and the State of Georgia in the Cherokee cases."

Some of the resolutions in regard to the establishment of the tribunals other than the Supreme Court for the settlement of disputes arising between the States and the General Government, which are discussed in the following section, would have conferred upon the Senate or some other body the duty of pronouncing upon the constitutionality of State laws, but an amendment introduced in 1846 proposed not only to absolutely prohibit the judicial department from declaring void "any act of Congress or of any State legislature, on the ground that it is contrary to the Constitution of the United States or contrary to the constitution of any particular State," but also failed to confer this power upon any other branch or department of the Federal Government.

But few propositions relative to the jurisdiction of the Supreme Court have since been presented, and these few within. recent years. The only other attempt to restrict the jurisdiction of the Federal courts was made in 1882 by members from Mississippi in both branches of Congress. On the other band,

7

App., No. 365. For other attacks on the Federalist judiciary at this same period, see ante, pp. 149-150, and notes.

2 App., Nos. 365a, 370, 375a, 378. Rhode Island disagreed, H. J., Vol. v, reprint, p. 328. 3 App., No. 379.

App., No. 617.

Cherokee Nation v. Georgia, 5 Peters 1; Tassels v. Georgia, Von Holst 1, pp. 433-458; See post, par. 77, 5 Peters, 1; Worcester v. Georgia, 6 Peters, 515.

6 App., No. 750. See post, par. 77.

App., Nos. 1555, 1559.

there have been two propositions which show a tendency to extend rather than to curtail the jurisdiction of the courts. The first of these, introduced in 1872, was intended primarily to facilitate the decision of the constitutionality of any Federal law. It provided that the Supreme Court "shall have original jurisdiction in all cases involving or affecting the constitutionality of any Federal law, so far as to determine the question of the constitutionality of the same," and "upon the application of any State, corporation, or person, suggesting the unconstitutionality of any Federal law or any part thereof," should, within six months from the date of the application, determine the question. It is worthy of note that the second of these, and also the last amendment presented relative to the judiciary, proposed to rescind the eleventh amendment, and give Congress power to provide "by appropriate legislation for the legal enforcement of the obligations of contracts entered into by any of the States of the Union." This was introduced by Mr. Moore, in 1883, and is the only attempt that has been made to repeal the eleventh amendment since its adoption. This proposition was probably suggested by the impunity with which some of the States have repudiated their debts.3

77. OTHER TRIBUNALS FOR THE SETTLEMENT OF DISPUTES BETWEEN THE STATES AND THE GENERAL GOVERNMENT.

In consequence of the difficulty arising out of the relations between the States and the United States, there have been six amendments introduced at different periods providing for some other tribunals higher than the Supreme Court. These will be considered chronologically.

(1) The New York convention of 1788 proposed that a person aggrieved by any judgment of the Supreme Court, in any cause in which the court had original jurisdiction, should, upon application, have a commission review the case with power to correct the errors in the judgment, sentence, or decree. This commission was to consist of not less than seven men learned in the law, appointed by the President upon the confirmation of the Senate.4

1 App., No. 1346. It further made provision for extending the appellate jurisdiction of the Supreme Court to all cases "where the writ of habeas corpus will lie in the several Federal courts inferior to the Supreme Court."

2 App., No. 1573.

3 Virginia had been particularly prominent in this movement. Attempt was made by creditors to collect from Louisiana by transferring their evidence of indebtedness to other States (New Hampshire v. Louisiana and New York v. Louisiana, 108 U. S., 76), but failed. See also Haus v. Louisiana, 134 U. S., 1.

App., No. 71.

(2) The creation of a new tribunal to determine disputes between the States and the General Government has been thrice suggested. The legislature of Pennsylvania, in consequence of the State being obliged to yield in the famous Gideon Olmstead case to the decision of the Supreme Court, passed a resolution in 1809 instructing their Senators and Representatives to use their influence to procure an amendment to the Constitution so that an impartial tribunal may be established to determine disputes between the General and State governments. This amendment was not concurred in by a single State. On the contrary, the legislatures of several of the States formally disapproved of it,3 among them Virginia, Ohio, Kentucky, and Georgia. This fact is of especial interest in view of their subsequent action.

In like manner, the legislature of Georgia in 1833 expressed its desire for an amendment authorizing the establishment of some tribunal of last resort for the settlement of all such disputes.*

The Pennsylvania authorities had forcibly resisted the enforcement of the decision of the Supreme Court affirming the decision given by the Committee of Appeal of the Congress of the Confederacy. In this case, decided in 1809, the Supreme Court first found itself called upon to declare a State law void. United States v. Peters, 5 Cranch, 115; Constitutional History as Seen in American Law, pp. 82-85; Hildreth, III, pp. 155-164; Story, 1, p. 282, note; ante, par. 76. For other references, see Foster, Com. on Const., p. 143, note 14.

2 App., No. 397; Annals of Congress, Eleventh Congress, second session, pp. 2253-2270; Annual Register (1809), pp. 150-175; ibid. (1810), pp. 113-136; Jour. of Senate of Penn. (1808-09), pp. 268 et seq.

3 The following States are known to have passed resolutions of "disapproval:" New Hampshire, Vermont, New Jersey, Maryland, Virginia, North Carolina, Georgia, Ohio, Kentucky, and Tennessee. No. Am. Rev., October, 1830, pp. 507-512; Niles' Register, vol. XLII, pp. 92-93, 318-319; vol. XLIII, pp. 84-85, 93, Suppl., p. 24; The Aurora, February 8, 1810; Jour. of Senate of Penn. (1808-09), p. 268; ibid. (1809-10), pp. 74, 166, 281; ibid. (1810-11), pp. 37, 41, 165; ibid. (1811-12), p. 95. The legislature of Virginia unanimously declared that "they are of the opinion that a tribunal is already provided by the Constitution of the United States, to wit, the Supreme Court, more eminently qualified *to decide the disputes aforesaid in an enlightened and impartial manner than any other which could be created." "The creation of a tribunal such as is proposed by Pennsylvania would, in our opinion, tend rather to invite than to prevent collisions between the Federal and State courts. It might also become in process of time a serious and dangerous embarrassment to the operation of the General Government." Compare with subsequent action of Virginia, pp. 161162, note 5. On the other hand, in 1831 the legislature of Pennsylvania declared that the Supreme Court had jurisdiction on constitutional questions. Story, vol. I, p. 282, note 1; Am. An Reg., vol. 6, pp. 336–337.

App., No. 618. Counter replies from Massachusetts and Virginia. Am. An. Reg., vol. VI, pp. 356-357, 316–317, 336–337. Resolves of Massachusetts, vol. XIX, pp. 411-423. Governor Troup, in a letter to the Senators and Representatives of Georgia in Congress, under date of February 21, 1827, writes: "I consider all questions of mere sovereignty as matter for negotiation between the States and the United States until the competent tribunal shall be assigned by the Constitution itself for the adjustment of them." "According to my limited conception, the Supreme Court is not made by the Constitution of the United States the arbiter in controversies involving rights of sovereignty between the States and the United States." Niles' Register. XXXII, 20. See reply of the legislature of Georgia to Marshall's issue of the writ of error in case of Tassels. Niles' Register, XXXIX, 338: Von Holst, History of the U. S., 1, 455.

Their own controversies with the United States authorities' and the recent nullification movement in South Carolina naturally suggested this amendment.

A third proposition was that such controversies should be referred to the Senate.

In the early twenties the Democracy was greatly excited over the recent decisions of the Supreme Court extending and strengthening the powers of the General Government. At the opening of Congress in 1821 Senator Johnson of Kentucky, later Vice-President, introduced an amendment which provided that in all controversies to which the judicial power of the United States should be construed to extend to which a State should be a party, and in all cases in which a State should desire to become a party, "in consequence of having a constitution or law of such State questioned, the Senate of the United States shall have appellate jurisdiction." This resolution led to an interesting debate, in which the right of the Federal court to declare a State law unconstitutional was called in question. Senator Johnson opened the discussion with the remark that his resolution was prompted by the decision which had declared unconstitutional an act of the Kentucky legislature called the "occupying claimant law." Later, in an elaborate speech attacking the recent decisions of the Supreme Court, he showed that the Federal judiciary had declared unconstitutional and void the laws of nine of the States. "I know of no clause in the Federal Constitution,"

5

'Cherokee Nation v. Georgia, 5 Peters, 1; Tassels v. Georgia; copy of writ (1830), Niles Register, XXXIX, 338; Worcester v. Georgia, 6 Peters, 515; Von Holst, 1, 433-458; Bryce, 1 268-269; Reply of Massachusetts legislature (1831) against the action of Georgia Jour. of Senate of Penn. (1830-31), p. 541.

2 See preamble of the resolutions passed by the legislature of South Carolina calling for a convention to amend the Constitution of the United States. Am. An. Reg., vol. VIII 295. See post, pars. 83, 177.

3 Even Jefferson from his retirement felt called upon to write in 1820: The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederate fabric. They are constantly constructing our Constitution from a coordination of a general and a special government to a general and supreme one alone." Works, VII, 192; see also ibid., 134, 216, 256.

4 App., No. 501. Sumner, Andrew Jackson, p. 128. This would correspond with the practice of the present German Empire. Hart, Fed. Govt.. sec. 260.

New Hampshire, New York, New Jersey, Pennsylvania, Maryland, Virginia, Ohio, Kentucky, and Georgia, in the following cases: New Hampshire (1819), Dartmouth Colleger. Woodward, 4 Wheaton, 518. New York (1819), Sturges v. Crowninshield, 4 Wheaton, 122. New Jersey (1812), New Jersey v. Wilson, 7 Cranch, 164. Pennsylvania (1808), United States v. Peters, 5 Cranch, 115. Maryland (1819), McCulloch r. Maryland, 4 Wheaton, 316. Virginia (1821), Cohens Virginia, 6 Wheaton, 264. Ohio (1819-1821), Ohio Bank Tax Case (Bank of United States v. Osborn et al ), 9 Wheaton, 738; Niles Register XVII 139; XIX,

H. Doc. 353, pt 2—11