Nemesis

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Nemesis

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.
in a summary mode, libels, even in pending causes; and that if he
succeeded, as he believed he should, in establishing these positions,
he should consider that he had a right to demand the judgment of
the court against the respondent.
He took the further position that the publication of Mr. Lawless,
under the signature of “A Citizen,” could not, in a trial upon an
indictment for libel, be established to be libellous, according to the
Constitution and laws of the land; that the paper was, on its face,
perfectly harmless in itself; and that, so far as it went, it was not an
unfair representation of the opinion of Judge Peck. The honorable
manager critically and legally analyzed the nine last specifications in
the publication, to establish these points. He then proceeded to sum
up and descant upon the testimony produced in the case before the
court of impeachment, in order to show the arbitrary and cruel
conduct of Judge Peck; and in a peroration, marked by its ardent
eloquence, he declared that if this man escaped, the declaration of a
distinguished politician of this country, that the power of
impeachment was but the scarecrow of the Constitution, would be
fully verified; that when this trial commenced, he recoiled with
horror from the idea of limiting, and rendering precarious and
dependent, the tenure of the judicial office, but that the acquittal of
the respondent would reconcile him to that evil, as one less than a
hopeless and remediless submission to judicial usurpation and
tyranny, at least so far as respected the inferior courts.
God forbid that the limitation should ever be extended to the
Supreme Court. Mercy to the respondent would be cruelty to the
American people.

Judge Peck was acquitted by a vote of 21 for the

impeachment and 22 against it, the constitutional
vote of two-thirds requisite for conviction not being
obtained. It is quite apparent that no party feeling
entered into the case.
 [GEO. W. BUCHANAN TO JAMES BUCHANAN]
Pittsburgh, November 5, 1830.
Dear Brother:—
I had the honor to receive by last night’s mail a letter from Mr. Van
Buren, enclosing me a commission from the President for the district
attorneyship. This day I will acknowledge its receipt. I am sincerely
glad both on your account and my own that the President has
appointed me. It banishes in a moment all those suspicions which
some persons entertained of his coldness towards you. It should be
my highest ambition to justify the appointment by a faithful
discharge of official duty.
My appointment appears to be received very well in this city. It will
excite some feelings of envy towards me among the young members
of the bar. My path, however, is very plain. It shall not alter my
conduct or manner in any respect.
I am, in haste, your grateful and affectionate brother,
Geo. W. Buchanan.

The most signal service rendered by Mr. Buchanan

in the 21st Congress, as Chairman of the Judiciary
Committee, was in a minority report made by him on
the 24th of January, 1831, upon a proposition to
repeal the twenty-fifth section of the judiciary act of
1789, which gave the Supreme Court appellate
jurisdiction, by writ of error to the State courts, in
cases where the Constitution, treaties, and laws of
the United States are drawn in question. A resolution
to inquire into the expediency of repealing this great
organic law having been referred to the committee, a
majority of the committee made an elaborate report
in favor of the repeal, through Mr. Smith of South
Carolina, accompanied by a bill to effect the repeal.
Mr. Buchanan’s counter-report, which had the
concurrence of two other members, caused the
rejection of the bill, by a vote of 138 to 51. I know of
few constitutional discussions which evince a more
thorough knowledge or more accurate views of the
nature of our mixed system of Government than this
report from the pen of Mr. Buchanan. If it be said
that the argument is now familiar to us, or that it
could have been drawn from various sources, let it
be observed that this document shows that Mr.
Buchanan was, at this comparatively early period of
his life, a well-instructed constitutional jurist; and
that while no one could originate at that day any
novel views of this important subject, it was no small
merit to be able to set forth clearly and cogently the
whole substance of such a topic. I think no apology
is needed for the insertion here of this valuable
paper. It may be prefaced by an extract from a letter
of Mr. Buchanan’s youngest brother, George W.
Buchanan, which shows how it was received by the
public in Pennsylvania:
Pittsburgh, February 4, 1831.
...... I have read with the highest degree of satisfaction your able
report from the minority of the Judiciary Committee. That document
will identify your name with the most important constitutional
question which has been presented to the consideration of Congress
for many years. It was looked for with much anxiety, and is now
spoken of by politicians of every party as a lucid and powerful appeal
to the patriotism of Congress. If the question was to be started, I
am sincerely glad that it has arisen while you occupied the chair of
the Judiciary Committee......
House of Representatives, January 24, 1831.
The Committee on the Judiciary, to which was referred a
resolution of the House of Representatives of the 21st ultimo,
instructing them “to inquire into the expediency of repealing or
modifying the twenty-fifth section of an act entitled ‘An act to
establish the judicial courts of the United States,’ passed the 24th
September, 1789,” having made a report, accompanied by a bill to
repeal the same, the minority of that committee, differing in opinion
from their associates upon this important question, deem it to be
their duty to submit to the House the following report:
The Constitution of the United States has conferred upon
Congress certain enumerated powers, and expressly authorizes that
body “to make all laws which shall be necessary and proper for
carrying these powers into execution.” In the construction of this
instrument, it has become an axiom, the truth of which cannot be
controverted, that “the General Government, though limited as to its
objects, is supreme with respect to those objects.”
The Constitution has also conferred upon the President, “by and
with the advice and consent of the Senate, provided two-thirds of
the Senators present concur,” the power to make treaties.
By the second section of the sixth article of this instrument it is
declared, in emphatic language, that “this Constitution, and the laws
of the United States which shall be made in pursuance thereof, and
all treaties made, or which shall be made, under the authority of the
United States, shall be the supreme law of the land; and the judges
in every State shall be bound thereby, anything in the constitution or
laws of any State to the contrary notwithstanding.”
The Constitution having conferred upon Congress the power of
legislation over certain objects, and upon the President and Senate
the power of making treaties with foreign nations, the next question
which naturally presented itself to those who framed it was, in what
manner it would be most proper that the Constitution itself, and the
laws and treaties made under its authority, should be carried into
execution. They have decided this question in the following strong
and comprehensive language: “The judicial power shall extend to all
cases, in law and equity, arising under this Constitution, the laws of
the United States, and treaties made, or which shall be made, under
their authority.” [Art. 3, Sec. 2.] This provision is the only one which
could have been made in consistency with the character of the
Government established by the Constitution. It would have been a
strange anomaly had that instrument established a judiciary whose
powers did not embrace all the laws and all the treaties made under
its authority. The symmetry of the system would thus have been
destroyed; and, in many cases, Congress would have had to depend
exclusively for the execution of their own laws upon the judiciary of
the States. This principle would have been at war with the spirit
which pervades the whole Constitution. It was clearly the intention
of its framers to create a Government which should have the power
of construing and executing its own laws, without any obstruction
from State authority. Accordingly, we find that the judicial power of
the United States extends, in express terms, “to all cases,” in law
and in equity, arising under the Constitution, the laws, and the
treaties of the United States. This general language comprehends
precisely what it ought to comprehend.
If the judicial powers of the United States does thus extend to “all
cases” arising under the Constitution, the laws, and treaties of the
Union, how could this power be brought into action over such cases
without a law of Congress investing the Supreme Court with the
original and appellate jurisdiction embraced by the Constitution?
It was the imperious duty of Congress to make such a law, and it
is equally its duty to continue it; indeed, without it, the judicial
power of the United States is limited and restricted to such cases
only as arise in the Federal courts, and is never brought to bear
upon numerous cases, evidently within its range.
When Congress, in the year 1789, legislated upon this subject,
they knew that the State courts would often be called upon, in the
trial of causes, to give a construction to the Constitution, the
treaties, and laws of the United States. What, then, was to be done?
If the decisions of the State courts should be final, the Constitution
and laws of the Union might be construed to mean one thing in one
State, and another thing in another State.
All uniformity in their construction would thus be destroyed.
Besides, we might, if this were the case, get into serious conflicts
with foreign nations, as a treaty might receive one construction in
Pennsylvania, another in Virginia, and a third in New York. Some
common and uniform standard of construction was absolutely
necessary.
To remedy these and other inconveniences, the first Congress of
the United States, composed, in a considerable proportion, of the
framers of the Constitution, passed the 25th section of the judicial
act of the 24th September, 1789. It is in the following words:
“Sec. 25. And be it further enacted, That a final judgment or
decree in any suit, in the highest court of law or equity of a State, in
which a decision in the suit could be had, where is drawn in question
the validity of a treaty or statute of, or an authority exercised under,
the United States, and the decision is against their validity; or where
is drawn in question the validity of a statute of, or an authority
exercised under, any State, on the ground of their being repugnant
to the Constitution, treaties, or laws of the United States, and the
decision is in favor of such their validity; or where is drawn in
question the construction of any clause of the Constitution, or of a
treaty or statute of, or commission held under the United States, and
the decision is against the title, right, privilege, or exemption,
specially set up or claimed by either party under such clause of the
said Constitution, treaty, statute, or commission, may be re-
examined and reversed, or affirmed in the Supreme Court of the
United States upon a writ of error, the citation being signed by the
chief justice, or judge, or chancellor of the court rendering or
passing the judgment or decree complained of, or by a justice of the
Supreme Court of the United States in the same manner, and under
the same regulations, and the writ shall have the same effect, as if
the judgment or decree complained of had been rendered or passed
in a circuit court; and the proceeding upon the reversal shall also be
the same, except that the Supreme Court, instead of remanding the
cause for a final decision, as before provided, may, at their
discretion, if the cause shall have been once remanded before,
proceed to a final decision of the same, and award execution. But no
other error shall be assigned or regarded as a ground of reversal in
any such case as aforesaid, than such as appears on the face of the
record, and immediately respects the before-mentioned questions of
validity, or construction of the said Constitution, treaties, statutes,
commissions, or authorities, in dispute.”
This section embraces three classes of cases. The first, those in
which a State court should decide a law or treaty of the United
States to be void, either because it violated the Constitution of the
United States, or for any other reason. Ought there not in such
cases to be an appeal to the Supreme Court of the United States?
Without such an appeal, the General Government might be obliged
to behold its own laws and its solemn treaties annulled by the
judiciary of every State in the Union, without the power of redress.
The second class of cases is of a different character. It embraces
those causes in which the validity of State laws is contested, upon
the principle that they violate the Constitution, the laws, or the
treaties of the United States, and have, therefore, been enacted in
opposition to the authority of the “supreme law of the land.” Cases
of this description have been of frequent occurrence. It has often
been drawn into question before the State courts, whether State
laws did or did not violate the Constitution of the United States. Is it
not then essential to the preservation of the General Government,
that the Supreme Court of the United States should possess the
power of reviewing the judgments of State courts in all cases
wherein they have established the validity of a State law in
opposition to the Constitution and laws of the United States?
The third class differs essentially from each of the two first. In the
cases embraced by it, neither the validity of acts of Congress, nor of
treaties, nor of State laws is called in question. This clause of the
25th section merely confers upon the Supreme Court the appellate
jurisdiction of construing the Constitution, laws, and treaties of the
United States, when their protection has been invoked by parties to
suits before the State courts, and has been denied by their decision.
Without the exercise of this power, in cases originating in the State
courts, the Constitution, laws, and treaties of the United States
would be left to be finally construed and executed by a judicial
power, over which Congress has no control.
This section does not interfere, either directly or indirectly, with
the independence of the State courts in finally deciding all cases
arising exclusively under their own constitution and laws. It leaves
them in the enjoyment of every power which they possessed before
the adoption of the Federal Constitution. It merely declares that, as
that Constitution established a new form of Government, and
consequently gave to the State courts the power of construing, in
certain cases, the Constitution, the laws, and the treaties of the
United States, the Supreme Court of the United States should, to this
limited extent, but not beyond it, possess the power of reviewing
their judgments. The section itself declares that no other error shall
be assigned or regarded as a ground of reversal, in any such case as
aforesaid, than such as appears on the face of the record, and
immediately respects the before-mentioned questions of validity or
construction of the said Constitution, treaties, statutes, commissions,
or authorities in dispute.
The minority of the committee will now proceed to advance, in a
more distinct form, a few of the reasons why, in their opinion, the
25th section of this act ought not to be repealed.
And, in the first place, it ought to be the chief object of all
Governments to protect individual rights. In almost every case
involving a question before a State court under this section of the
judiciary act, the Constitution, laws, or treaties of the United States
are interposed for the protection of individuals. Does a citizen invoke
the protection of an act of Congress upon a trial before a State court
which decides that act to be unconstitutional and void, and renders
judgment against him? This section secures his right of appeal from
such a decision to the Supreme Court of the United States.
When a citizen, in a suit before a State court, contends that a
State law, by which he is assailed, is a violation of the Constitution of
the United States and therefore void (if his plea should be
overruled), he may bring this question before the Supreme Court of
the United States.
In like manner, when an individual claims any right before a State
court under the Constitution or laws of the United States, and the
decision is against his claim, he may appeal to the Supreme Court of
the United States.
If this section were repealed, all these important individual rights
would be forfeited.
The history of our country abundantly proves that individual States
are liable to high excitements and strong prejudices. The judges of
these States would be more or less than men if they did not
participate in the feelings of the community by which they are
surrounded. Under the influence of these excitements, individuals,
whose rights happen to clash with the prevailing feeling of the State,
would have but a slender hope of obtaining justice before a State
tribunal. There would be the power and the influence of the State
sovereignty on the one side, and an individual who had made
himself obnoxious to popular odium on the other. In such cases,
ought the liberty or the property of a citizen, so far as he claims the
same under the Constitution or laws of the United States, to be
decided before a State court, without an appeal to the Supreme
Court of the United States, on whom the construction of this very
Constitution and these laws has been conferred, in all cases, by the
Constitution?
The Supreme Court, considering the elevated character of its
judges, and that they reside in parts of the Union remote from each
other, can never be liable to local excitements and local prejudices.
To that tribunal our citizens can appeal with safety and with
confidence (as long as the 25th section of the judicial act shall
remain upon the statute book) whenever they consider that their
rights, under the Constitution and laws of the United States, have
been violated by a State court. Besides, should this section be
repealed, it would produce a denial of equal justice to parties
drawing in question the Constitution, laws, or treaties of the United
States. In civil actions, the plaintiff might then bring his action in a
Federal or State court, as he pleased, and as he thought he should
be most likely to succeed; whilst the defendant would have no
option, but must abide the consequences without the power of
removing the cause from a State into a Federal court, except in the
single case of his being sued out of the district in which he resides;
and this, although he might have a conclusive defence under the
Constitution and laws of the United States.
Another reason for preserving this section is, that without it there
would be no uniformity in the construction and administration of the
Constitution, laws, and treaties of the United States. If the courts of
twenty-four distinct, sovereign States, each possess the power, in
the last resort, of deciding upon the Constitution and laws of the
United States, their construction may be different in every State of
the Union. That act of Congress which conforms to the Constitution
of the United States, and is valid in the opinion of the supreme court
of Georgia, may be a direct violation of the provisions of that
instrument, and be void in the judgment of the supreme court of
South Carolina. A State law in Virginia might in this manner be
declared constitutional, whilst the same law, if passed by the
Legislature of Pennsylvania, would be void. Nay, what would be still
more absurd, a law or treaty of the United States with a foreign
nation, admitted to be constitutionally made, might secure rights to
the citizens of one State, which would be denied to those of another.
Although the same Constitution and laws govern the Union, yet the
rights acquired under them would vary with every degree of latitude.
Surely the framers of the Constitution would have left their work
incomplete, had they established no common tribunal to decide its
own construction, and that of the laws and treaties made under its
authority. They are not liable to this charge, because they have
given express power to the Judiciary of the Union over “all cases, in
law and equity, arising under this Constitution, the laws of the
United States, and treaties made, or which shall be made, under
their authority.”
The first Congress of the United States have, to a considerable
extent, carried this power into execution by the passage of the
judicial act, and it contains no provision more important than the
25th section.
 This section ought not to be repealed, because, in the opinion of
the minority of the Committee on the Judiciary, its repeal would
seriously endanger the existence of this Union. The chief evil which
existed under the old confederation, and which gave birth to the
present Constitution, was that the General Government could not act
directly upon the people, but only by requisition upon sovereign
States. The consequence was, that the States either obeyed or
disobeyed these requisitions, as they thought proper. The present
Constitution was intended to enable the Government of the United
States to act immediately upon the people of the States, and to
carry its own laws into full execution, by virtue of its own authority.
If this section were repealed, the General Government would be
deprived of the power, by means of its own judiciary, to give effect
either to the Constitution which called it into existence, or to the
laws and treaties made under its authority. It would be compelled to
submit, in many important cases, to the decisions of State courts;
and thus the very evil which the present Constitution was intended
to prevent would be entailed upon the people. The judiciary of the
States might refuse to carry into effect the laws of the United States;
and without that appeal to the Supreme Court which the 25th
section authorizes, these laws would thus be entirely annulled, and
could not be executed without a resort to force.
This position may be illustrated by a few striking examples.
Suppose the Legislature of one of the States, believing the tariff laws
to be unconstitutional, should determine that they ought not to be
executed within its limits. They accordingly pass a law, imposing the
severest penalties upon the collector and other custom-house
officers of the United States within their territory, if they should
collect the duties on the importation of foreign merchandise. The
collector proceeds to discharge the duties of his office under the
laws of the United States, and he is condemned and punished before
a State court for violating this State law. Repeal this section, and the
decision of the State court would be final and conclusive; and any
State could thus nullify any act of Congress which she deemed to be
unconstitutional.
 The Executive of one of the States, in a message to the
Legislature, has declared it to be his opinion, that the land belonging
to the United States within her territory is now the property of the
State, by virtue of her sovereign authority. Should the Legislature be
of the same opinion, and pass a law for the punishment of the land
officers of the United States who should sell any of the public lands
within her limits, this transfer of property might be virtually
accomplished by the repeal of the 25th section of the judicial act.
Our land officers might then be severely punished, and thus
prohibited by the courts of that State from performing their duty
under the laws of the Union, without the possibility of redress in any
constitutional or legal form. In this manner, the title of the United
States to a vast domain, which has cost the nation many millions,
and which justly belongs to the people of the several States, would
be defeated or greatly impaired.
Another illustration might be introduced. Suppose the Legislature
of Pennsylvania, being of opinion that the charter of the Bank of the
United States is unconstitutional, were to declare it to be a nuisance,
and inflict penalties upon all its officers for making discounts or
receiving deposits. Should the courts of that State carry such a law
into effect, without the 25th section there would be no appeal from
their decision; and the Legislature and courts of a single State might
thus prostrate an institution established under the Constitution and
laws of the United States.
In all such cases, redress can now be peaceably obtained in the
ordinary administration of justice. A writ of error issues from the
Supreme Court, which finally decides the question whether the act of
Congress was constitutional or not; and if they determine in the
affirmative, the judgment of the State court is reversed. The laws
are thus substituted instead of arms, and the States kept within their
proper orbits by the judicial authority. But if no such appeal existed,
then, upon the occurrence of cases of this character, the General
Government would be compelled to determine whether the Union
should be dissolved, or whether there should be a recurrence to
force—an awful alternative, which we trust may never be presented.
We will not attempt further to portray the evils which might result
from the abandonment of the present judicial system. They will
strike every reflecting mind.
It has of late years been contended that this section of the judicial
act was unconstitutional, and that Congress do not possess the
power of investing the Supreme Court with appellate jurisdiction in
any case which has been finally decided in the courts of the States.
It has also been contended that, even if they do possess this power,
it does not extend to cases in which a State is a party. On this
branch of the question, we would refer the House to the very able
and conclusive argument of the Supreme Court of the United States,
in the cases of Martin vs. Hunter’s Lessee (1st Wheaton, 304) and
Cohens vs. the State of Virginia (6 Wheaton, 264) by which the
affirmative of these propositions is clearly established. It may be
proper, however, that we should make a few observations upon this
part of the question. Those who have argued in favor of these
positions, assert that the general words of the Constitution,
extending the judicial power of the Union “to all cases, in law and
equity,” arising under the Constitution and laws of the United States,
ought, by construction, to be restricted to such cases in law and
equity as may originate in the courts of the Union. They would thus
establish a limitation at war with the letter, and, in our opinion,
equally at war with the spirit of the instrument. Had such been the
intention of the framers of the Constitution, they well knew in what
language to express that intention. Had it been their purpose to
restrict the meaning of the general language which they had used in
the first clause of the section, they could have done so with much
propriety in the second. This clause, after providing “that, in all
cases affecting ambassadors, other public ministers, and consuls,
and those in which a State shall be a party, the Supreme Court shall
have original jurisdiction,” proceeds to declare “that, in all the other
cases before mentioned, the Supreme Court shall have appellate
jurisdiction, both as to law and fact, with such exceptions, and under
such regulations, as the Congress shall make.” On the supposition
contended for, it is wholly unaccountable that the framers of the
Constitution did not limit the natural effect of the words used in the
first clause, by making the second to read “that, in all the other
cases before mentioned,” arising in the inferior courts of the United
States, “the Supreme Court shall have appellate jurisdiction.” But no
such restriction exists; and, from the fair import of the words used in
both clauses, the Supreme Court possess the power of finally
deciding “all cases, in law and equity,” arising under the Constitution,
the laws, and the treaties of the United States, no matter whether
they may have originated in a Federal or in a State court, and no
matter whether States or individuals be the parties.
But it is not our intention to enter into a protracted constitutional
argument upon the present occasion, because this question has long
since been put at rest, if any constitutional question can ever be
considered as settled in this country. The Federalist, which is now
considered a text-book in regard to the construction of the
Constitution, and deservedly so, as well from the great merit of the
work as the high character of its authors, is clear and explicit on this
subject. After reasoning upon it at some length, the author of the
83d number of that production arrives at the following conclusion:
“To confine, therefore, the general expressions which gave appellate
jurisdiction to the Supreme Court to appeals from the subordinate
Federal courts, instead of allowing their extension to the State
courts, would be to abridge the latitude of the terms, in subversion
of the intent, contrary to every sound rule of interpretation.”
The Federalist, it will be recollected, was written between the
formation of the Constitution and its adoption by the States.
Immediately after its adoption, Congress, by passing the 25th
section of the judicial act, now sought to be repealed, fully
confirmed this construction. This appellate jurisdiction has ever since
been exercised by the Supreme Court in a great variety of cases;
and we are not aware that the constitutionality of its exercise has
ever been questioned by the decision of any State court, except in a
single instance, which did not occur until the year 1815. And even in
that case (Hunter vs. Fairfax), the judgment of the Supreme Court
was carried into effect according to the existing law, without
endangering the peace of the country.
The last topic to which we would advert is, the claim which has
been set up to exempt the judgments obtained by the States of this
Union, before their own courts, in civil and criminal suits, prosecuted
in their name, from being reviewed by the Supreme Court of the
United States upon a writ of error. Much stress has been laid by
those who sustain this claim, upon the general proposition that a
sovereign independent State cannot be sued, except by its own
consent. But does this proposition apply, in its extent, to the States
of this Union. That is the question for discussion.
We have in this country an authority much higher than that of
sovereign States. It is the authority of the sovereign people of each
State. In their State conventions they ratified the Constitution of the
United States; and so far as that Constitution has deprived the
States of any of the attributes of sovereignty, they are bound by it,
because such was the will of the people. The Constitution, thus
called into existence by the will of the people of the several States,
has declared itself, and the laws and treaties which should emanate
from its authority, to be “the supreme law of the land;” and the
judges in every State shall be bound thereby, anything in the
Constitution or laws of any State to the contrary notwithstanding.
Why, then, should a State, who has obtained a judgment in her
own courts against an individual, in violation of this “supreme law of
the land,” be protected from having her judgment reversed by the
Supreme Court of the United States? Is there any reason, either in
the Constitution or in natural justice, why judgments obtained by a
State in her own courts should be held sacred, notwithstanding they
violated the Constitution and laws of the Union, which would not
apply, at least with equal force, in favor of individual plaintiffs? The
Constitution subjects to the review of the Supreme Court all cases in
law or equity arising under itself, or the laws of the Union. It excepts
no case bearing this character. Whether the party be a State or an
individual, all must alike bow to the sovereign will of the people,
expressed in the Constitution of the United States.
In suits brought by a State against an individual in her own courts,
there is much greater danger of oppression, considering the relative
power and influence of the parties, than there would be in
controversies between individuals. And are these to be the only
cases selected, in which the citizen shall not be permitted to protect
himself by the Constitution and laws of the Union before the
Supreme Court of the United States? Is it not sufficient that, under
the Constitution, the States cannot be sued as defendants, without
adding to this, by a strained and unnatural construction, the
additional privilege that the judgments which they may obtain as
plaintiffs or prosecutors before their own courts, whether right or
wrong, shall in all cases be irreversible?
We will not repeat the considerations which have been already
urged to prove that, unless this provision of the Constitution applies
to the States, the rights of individuals will be sacrificed, all uniformity
of decision abandoned, and each one of the States will have it in her
power to set the Constitution and laws of the United States at
defiance.
The eleventh amendment to the Constitution of the United States
interferes in no respect with the principles for which we have
contended. It is in these words:
“The judicial power of the United States shall not be construed 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 any foreign State.”
Chief Justice Marshall, in delivering the opinion of the court in the
case of Cohens vs. Virginia, has given so clear, and in our opinion, so
correct an exposition of the true construction of the amendment,
that we shall, in conclusion, present to the House a few extracts
from that opinion, instead of any argument of our own. He says that
“the first impression made on the mind by this amendment is, that it
was intended for those cases, and for those only, in which some
demand against a State is made by an individual in the courts of the
Union. If we consider the causes to which it is to be traced, we are
conducted to the same conclusion. A general interest might well be
felt, in leaving to a State the full power of consulting its convenience
in the adjustment of its debts, or of other claims upon it; but no
interest could be felt in so changing the relation between the whole
and its parts, as to strip the Government of the means of protecting,
by the instrumentality of its courts, the Constitution and laws from
active violation. The words of the amendment appear to the court to
justify and require this construction.
“To commence a suit, is to demand something by the institution of
process in a court of justice; and to prosecute the suit is, according
to the common acceptation of language, to continue that demand.
By a suit commenced by an individual against a State, we should
understand a process sued out by that individual against the State,
for the purpose of establishing some claim against it by the
judgment of a court; and the prosecution of that suit is its
continuance. Whatever may be the stages of its progress, the actor
is still the same. Suits had been commenced in the Supreme Court
against some of the States before the amendment was introduced
into Congress, and others might be commenced before it should be
adopted by the State Legislatures, and might be depending at the
time of its adoption. The object of the amendment was not only to
prevent the commencement of future suits, but to arrest the
prosecution of those which might be commenced when this article
should form a part of the Constitution. It therefore embraces both
objects; and its meaning is, that the judicial power shall not be
construed to extend to any suit which may be commenced, or which,
if already commenced, may be prosecuted against a State, by the
citizens of another State. If a suit, brought in one court, and carried
by legal process to a supervising court, be a continuation of the
same suit, then this suit is not commenced nor prosecuted against a
State. It is clearly, in its commencement, the suit of a State against
an individual, which suit is transferred to this court, not for the
purpose of asserting any claim against the State, but for the purpose
of asserting a constitutional defence against a claim made by a
State.
“Under the judiciary act, the effect of a writ of error is simply to
bring the record into court, and submit the judgment of the inferior
tribunal to re-examination. It does not, in any manner, act upon the
parties; it acts only on the record. It removes the record into the
supervising tribunal. Where, then, a State obtains a judgment
against an individual, and the court rendering such judgment
overrules a defence set up under the Constitution or laws of the
United States, the transfer of this record into the Supreme Court for
the sole purpose of inquiring whether the judgment violates the
Constitution or laws of the United States can, with no propriety, we
think, be denominated a suit commenced or prosecuted against the
State, whose judgment is so far re-examined. Nothing is demanded
from the State. No claim against it, of any description, is asserted or
prosecuted. The party is not to be restored to the possession of
anything. Essentially, it is an appeal on a single point; and the
defendant who appeals from a judgment rendered against him, is
never said to commence or prosecute a suit against the plaintiff, who
has obtained the judgment. The writ of error is given rather than an
appeal, because it is the more usual mode of removing suits at
common law; and because, perhaps, it is more technically proper,
where a single point of law, and not the whole case, is to be re-
examined. But an appeal might be given, and might be so regulated
as to effect every purpose of a writ of error. The mode of removal is
form, not substance. Whether it be by writ of error or appeal, no
claim is asserted, no demand is made by the original defendant; he
only asserts the constitutional right to have his defence examined by
that tribunal whose province it is to construe the Constitution and
laws of the Union.
“The only part of the proceeding which is in any manner personal
is the citation. And what is the citation? It is simply notice to the
opposite party that the record is transferred into another court,
where he may appear, or decline to appear, as his judgment or
inclination may determine. As the party who has obtained a
judgment is out of court, and may, therefore, not know that his
cause is removed, common justice requires that notice of the fact
should be given him: but this notice is not a suit, nor has it the
effect of process. If the party does not choose to appear, he cannot
be brought into court, nor is his failure to appear considered as a
default. Judgment cannot be given against him for his non-
appearance; but the judgment is to be re-examined, and reversed or
affirmed, in like manner as if the party had appeared and argued his
cause.
 “The point of view in which this writ of error, with its citation, has
been considered uniformly in the courts of the Union, has been well
illustrated by a reference to the course of this court in suits
instituted by the United States. The universally received opinion is,
that no suit can be commenced or prosecuted against the United
States; that the judiciary act does not authorize such suits; yet writs
of error, accompanied with citations, have uniformly issued for the
removal of judgments in favor of the United States into a superior
court, where they have, like those in favor of an individual, been re-
examined, and affirmed or reversed. It has never been suggested
that such writ of error was a suit against the United States, and
therefore not within the jurisdiction of the appellate court.
“It is, then, the opinion of the court that the defendant who
removes a judgment rendered against him by a State court into this
court, for the purpose of re-examining the question whether that
judgment be in violation of the Constitution or laws of the United
States, does not commence or prosecute a suit against the State,
whatever may be its opinion, where the effect of the writ may be to
restore the party to the possession of a thing which he demands.”
All which is respectfully submitted.
James Buchanan,
Wm. W. Ellsworth, E.
D. White.

It was Mr. Buchanan’s intention to retire from

public life at the close of this session of Congress in
March, 1831. But in the early part of February,
without his previous knowledge, a movement was
set on foot in Pennsylvania to bring him forward as
the candidate of that State for the Vice-Presidency at
the next election, on the ticket with General Jackson,
whose re-election to the Presidency was already
anticipated by his party. As soon as information of
this purpose reached Mr. Buchanan, he did what he
could to discourage it, as will appear from the
following letter to one of his Pennsylvania friends and
neighbors:
[JAMES BUCHANAN TO GEORGE PLITT, ESQ.]
Washington, February 18, 1831.
Dear Sir:—
I received your kind letter of the 7th instant and the Chester
County Democrat of the 8th by the same mail; and I confess the
information which they contained was wholly unexpected. I can say
nothing upon the subject to which they refer, unless it be to express
a profound and grateful sense of the kindness and partiality of those
of my friends in Chester County who would elevate me to a station
to which I have never aspired. I cannot flatter myself, for a single
moment, that the people of the State will respond to a nomination
which I feel has been dictated in a great degree by personal
friendship; and I shall retire to private life, after the close of the
present session, without casting one lingering look behind. As a
private citizen I shall always remember with the deepest sensibility
the many favors which I have received from the people of the
district whom I have so long represented, perfectly convinced that
they have already bestowed upon me quite as many honors as I
have ever deserved.
I sent you by yesterday’s mail a copy of the correspondence
between the President and Vice-President. Its publication has not
produced the sensation here which was expected. I think it will not
injure General Jackson in the estimation of his friends in
Pennsylvania. Its effect, however, will be still more to divide the
personal friends of Mr. Crawford and Mr. Calhoun.
The speech which I made upon Peck’s trial will probably not
appear until a full report of the case shall be published. The
commendations which have been bestowed upon it, both here and
elsewhere, have been of a character so far beyond its merits that I
fear the public will be disappointed upon the appearance in print.
I would suggest to you the propriety of considering this letter
confidential so far as it regards myself. The subject is of a nature so
delicate, and anything I can say upon it is so liable to
misconstruction, that I should not have answered your letter, had I
not felt that you have always deserved my friendship, and that I
might rely with confidence on your discretion.
From your friend,
James Buchanan.
P. S.—What is now the state of anti-masonry in your county?

The truth is that a longer continuance in public life

did not accord with Mr. Buchanan’s plans. His
professional income had fallen to the low rate of
about $2000 per annum, and he determined to
restore it to what it had previously been, and to take
his chances for raising it still higher.
He had many qualifications for great success at the
bar: competent learning, untiring industry, a ready
and pleasing address, an uncommon reasoning
power, and a reputation of perfect integrity. Had he
been impelled by the wants of a family to devote
himself exclusively to his profession, there can be no
doubt that he would have risen in it to great
eminence. His talents were not of that order which
would have enabled him to unite in his own person
the very different functions of a statesman and a
lawyer; a union which has been exhibited in a very
marked manner by only one person in America, and
perhaps by no one in England. But my estimate of
Mr. Buchanan’s abilities leads me to say, that if he
had not at this period of his life been again drawn
into a political career, he would have ranked among
the first lawyers of his time. He must have soon
encased in the forensic discussion of constitutional
questions. He had very early imbibed a deep
reverence for the Constitution of the United States,
and his turn of mind would have adapted him to the
handling of questions such as were then arising and
are likely long to arise upon its interpretation. As he
grew older and his sphere of professional
employment became widened, he must have been
found at the bar of the Supreme Court of the United
States, if not as the peer of Webster and Pinkney, at
least as the peer of many against whom those great
advocates had to put forth their strength. But from
such a professional career Mr. Buchanan was drawn
away, not by the prospect of the Vice-Presidency, but
by the unexpected offer of the mission to Russia, an
account of which will be found in the next chapter.
[FROM GEORGE W. BUCHANAN.]
Pittsburgh, March 4, 1830.
Dear Brother:—
I am much pleased to observe from the U. S. Telegraph of the
25th ultimo that you have taken a manly stand on the constitutional
side of the Indian question. In this pleasure there is no doubt a spice
of personal vanity, as your sentiments, so far as they can be inferred
from the debate, are in perfect accordance with my own. It is a
question which has produced an unaccountable excitement in our
city. Every word on the subject is devoured with wonderful avidity;
and I can assure you that you did not put too high an estimate on
public feeling when you moved for the printing of ten thousand
copies of the report. As public opinion is yet unsettled, it is important
that the report of the committee, if temperate and decided, should
have an extensive circulation.
I have read your speech on the Judiciary with great interest and
advantage. The legal gentlemen in our city have highly
complimented both its style and research. The best evidence of its
effect is, that all those with whom I have conversed on the subject
are decidedly in favor of your bill.
Anti-masonry is still flourishing. I do not know the state of feeling
in the eastern section of Pennsylvania, but I am now perfectly
convinced that no western county will return a mason to the next
Legislature. Strong, however, as anti-masonry is, much of its
apparent strength is borrowed from extrinsic circumstances. In this
city, for instance, many persons are anxious to be rid of a set of
rulers who have managed with so much political dexterity as to
control the destinies of this county for many years. These men
happen to be masons. No other hobby could be mounted with the
same prospect of success. The honest anti-masons, the old Adams
men, and the disappointed office-seekers are easily induced to unite
their influence against the “powers that be.” The motley materials
are thus thrown into one caldron and stirred up into a dangerous
compound. These remarks I have made to account for the
extraordinary strength of anti-masonry in this quarter......
I am obliged to you for the salutary counsel contained in your last
letter. I believe that a whole volume of advice (both moral and
political) is contained in that single direction, “Be wise as the
serpent, but harmless as the dove.” ...... My health is very good.
Your grateful and affectionate brother,
Geo. W. Buchanan.
 It appears, however, that a meeting was held at
Lancaster in March, at which he was nominated for
the Vice-Presidency, with what effect may be learned
from the following letters written by his brother
George from Pittsburgh:
[GEORGE W. BUCHANAN TO JAMES BUCHANAN.]
Pittsburgh, March 23, 1831.
Dear Brother:—
I have just read with great pleasure the proceedings of the
Lancaster meeting which nominated you for the Vice-Presidency.
Whether success shall crown the exertions of your friends or not, no
public man can receive so flattering and precious a testimonial as
the unanimous and unsolicited voice of his neighbors and
acquaintances. In this part of the State, the idea seems to take very
well. Both this county and Washington will, I think, hold meetings in
your favor. I saw the editor of the Manufacturer this morning and
ascertained that he will be disposed to take a prominent part. The
Democrat will probably not be unfavorable. The editor, however, is a
very timid creature.
On Thursday last I was so unfortunate as to fall and break my
arm. The pain has subsided in a great degree, and I think that my
arm will be restored in a short time to its wonted strength and
action. I can now attend to any business that does not require the
use of both hands.
I write under a feeling of great inconvenience, and will therefore
close.
Your grateful and affectionate brother,
Geo. W. Buchanan.

Pittsburgh, April 29, 1831.

Dear Brother:—
 I have been absent from home in attendance upon a sale of
United States property at Uniontown for a week past. I succeeded in
effecting a very good disposition of the property. The Government, I
have no doubt, will approve my proceedings.
I find that in every county in which I have been, your nomination
for the Vice-Presidency is very popular. In Fayette and Washington
there will scarcely be a division of sentiment. Still, however, it is
thought proper to suspend all public proceedings in your favor till
the time of holding their regular Democratic meetings in the
summer. That course will also be adopted in this county. Every
leading Jackson politician here, with the exception of one or two
Ingham men, is favorable to your nomination. It will, however, be
probably better to wait for a further expression of public opinion at
the regular meetings of the party throughout the State. I observe
that in the Kentucky Gazette your name is placed on the Democratic
ticket, under General Jackson’s.
It is believed here that the appointment of Attorney-General has
been tendered to you. If so, I hope that you will accept it. It is a
most honorable station, and free from that abuse which attaches to
the Secretaryships. Will Van Buren be a candidate for the Vice-
Presidency?
My arm is not yet so far restored as to be of any use. I trust,
however, that the weakness is only of a temporary nature. My
health, in other respects, is good.
I am your grateful brother,
Geo. W. Buchanan.

Mr. Buchanan returned to Lancaster after this

meeting had been held. His nomination to the Vice-
Presidency continued to be agitated in other parts of
Pennsylvania, and in June a great meeting of the
supporters of General Jackson was held at
Williamsport, of which George Buchanan gives the
following account:
[GEORGE W. BUCHANAN TO JAMES BUCHANAN.]
Pittsburgh, June 15, 1831.
Dear Brother:—
I arrived here on Thursday. The heat was so oppressive on
horseback that I sold my horse at Bellefonte, and returned in the
stage. The journey has, in a very great degree, restored my health.
The Jackson meeting at Williamsport was an exceedingly
respectable one. Fifteen counties were represented. There can be no
doubt that you were the Pennsylvanian to whom the resolution
respecting the Vice-Presidency was intended to point. I have every
reason to believe that your name would have been inserted by an
almost unanimous vote, if Mr. Potter, from Centier, had not been
detained at home by the illness of his wife. He would have offered a
resolution nominating you; and I can say, from information of the
most undoubted credit, that at least two-thirds of all the jurors
would have warmly sustained it. Mr. Ward, editor of the
Susquehanna Register, and Mr. Youngman, editor of the Union
Times, with both of whom I became intimately acquainted, are
decidedly favorable to your nomination. They are intelligent young
men, and have, in a warm and flattering manner, solicited my
correspondence.
In the Western country, I find that the Ingham faction is extremely
weak. Out of Bradford County, and apart from their family
connections, they appear to have no friends in the West. The people
in our district speak very favorably of Mr. Muhlenburg as the next
Governor, and, I assure you, I did nothing to discountenance that
feeling. The popularity of the present Governor has been injured by
the appointment of General McKean, the proposition to tax coal, and
the character of certain county appointments. The resolution
adopted at our meeting, and opposing General Jackson’s course in
the Cabinet affair, was intended as a direct censure upon Messrs.
Ingham, &c. Owing to the relation I bore to you and to General
Jackson, I determined to take no active part in the meeting.
I should like very much to see you and hold a long conversation
on matters and things. In July I shall endeavor to visit Franklin
County, and, if you should be unable to meet me there, I will extend
my journey to Lancaster.
Governor Wolf left our city this morning for Erie. He was here at
the time of my arrival, and, in company with several ladies and
gentleman, I escorted him to Economy. He was exceedingly well
received by the people of that singular village. His plain manners
and German language endeared him very much to Raff and his
whole Society. The Governor treated me with great attention, and
evinced a disposition to be very familiar. His daughter, however,
pleased my fancy much more than the old gentleman himself. She is
a very interesting lady, and has well nigh stolen my heart.
I observe that the newspapers are determined to give you some
office. They now make you Minister to Russia. Is this report true? If
so, it will then become your duty to consider what sort of a
Secretary your brother George would make. It would be a very
interesting time to visit Europe.[25]
I remain your grateful and affectionate brother,
Geo. W. Buchanan.
 CHAPTER VII.
1831–1833.

JOHN RANDOLPH OF ROANOKE MADE MINISTER TO RUSSIA—

FAILURE OF MR. RANDOLPH’S HEALTH—THE MISSION OFFERED
TO MR. BUCHANAN—HIS MOTHER’S OPPOSITION TO HIS
ACCEPTANCE—EMBARKS AT NEW YORK AND ARRIVES AT
LIVERPOOL—LETTERS FROM ENGLAND—JOURNEY TO ST.
PETERSBURG—CORRESPONDENCE WITH FRIENDS AT HOME.

After General Jackson became President in March,

1829, he determined to offer the Mission to Russia to
“John Randolph of Roanoke.” This offer was made in
September of that year, and was then accepted; but
the nomination was not submitted to the Senate until
the following May. It was confirmed without
[26]
opposition from any quarter. Before he sailed, Mr.
Randolph had leave granted him by the President to
spend the following winter in the south of Europe, if
the state of his health should require it. He remained
at St. Petersburg only long enough to be accredited.
His constitution was too far impaired to admit of his
encountering the rigors of a Russian winter. He left
the affairs of the legation in the hands of Mr. Clay,
the Secretary, and went to England.
In his annual message in December (1830), the
President communicated to Congress the fact of Mr.
Randolph’s necessary absence from his post, on
leave, and said that the public interests in that
quarter would still be attended to by the Minister,
through the Secretary. When the annual
appropriation bill came before the House of
Representatives in January (1831), a long and
acrimonious discussion took place upon a motion to
strike out the salary of the Minister to Russia. It was
contended that the Mission was actually, if not
technically, vacant; and it was charged that the
appointment of Mr. Randolph, with the understanding
that he might leave his post at his own discretion,
was a “job.” To this it was answered by the friends of
the Administration that the responsibility for his
appointment lay with the President and the Senate;
that in the Senate the opposition entirely approved
of the appointment; and that for the House to refuse
to pay the salary of a Minister because he was
absent from his post on leave given by the President,
would be highly improper. In the course of this
debate, Mr. Buchanan made a temperate and
judicious speech, in which he defended the
appointment. The result was that the appropriation
[27]
was retained in the bill and the bill was passed.
It became necessary, however, in the spring of this
year, for the President to recall Mr. Randolph and to
select his successor. In those days, the public men of
the country did not propose themselves for such
appointments. The first intimation that reached Mr.
Buchanan of the President’s wish to make him
Minister to Russia, came to him in a letter from a
confidential friend of the President.
[MAJOR EATON TO MR. BUCHANAN.]

(Private.) Washington, May 31, 1831.

Dear Sir:—
Where are you, and what doing? I cannot tell, having heard
nothing from you since the adjournment of Congress. That you are
doing well, though, I have no doubt and earnestly hope.
I introduce myself to you now at the request and by the direction
of the President. The Mission to St. Petersburg is expected shortly to
become vacant. It will afford the President pleasure to confide this
trust to you, if it shall suit your convenience to accept it. He desires
me to make known his wishes to you and to solicit an answer. It is at
the present an important and a highly interesting part of the world.
For reasons not material now to be explained, the President desires
that you will consider this communication entirely of a confidential
character.
With great respect,
J. H. Eaton.

[MR. BUCHANAN TO MAJOR EATON.]

 Lancaster, June 4, 1831.
Dear Sir:—
I received your letter last evening, offering me, “by the direction
of the President,” the Mission to St. Petersburg. I feel with the
deepest sensibility this pledge of the kindness of the President, and
the recollection of it shall ever be engraven on my grateful memory.
My attachment for him, both personal and political, has been of the
warmest character, and he has now engrafted upon that feeling a
strong sense of individual gratitude.
There is but a single circumstance which induces me to doubt
whether I ought to accept the Mission. I wish to be placed in no
public station in which I cannot discharge my duty with usefulness to
the country and honor to the administration of General Jackson.
Ignorant as I now am of the French language, I doubt whether I
could acquire a sufficient knowledge of it in proper time to enable
me to hold that free communion with the political circles in St.
Petersburg which I consider essential to the able discharge of the
duties of a foreign minister. I have much business now on hand
which I could not immediately leave without doing serious injury to
individuals who have confided in me. Will you be so kind as to
inform me at what time the President would think the public interest
required me to leave the country in case I should accept the
Mission?
Please to remember me to the President in the strongest terms.
Accept my thanks for your uniform kindness, and present my
respects to Mrs. Eaton. I remain
Sincerely your friend,
James Buchanan.

[EATON TO BUCHANAN.]

(Private.) Washington City, June 7, 1831.

Dear Sir:—