The obvious answer to this argument is, that the jurisdiction now claimed does not arise under that part of the constitution which gives original jurisdiction to the Supreme Court in cases in which a State is a party; but the jurisdiction is asserted under that clause which gives the federal judiciary cognizance of all cases arising under the constitution, laws, and treaties of the United States, without regard to the character of the parties. In this latter class of cases the Supreme Court has appellate jurisdiction. In some of this description of cases, the jurisdiction could not be originally exercised. The penal laws of a State cannot be originally enforced, or enforced at all, by a judicature of the Union. They cannot therefore form the subjects of, or create subjects for, its original jurisdiction. The Courts of the United States can here exert only a controlling or restraining power for the protection of the rights of the Union, and this can only be done by appeal or writ of error. This view of the subject is taken in Martin v. Hunter. The Court there says,27 'Suppose an indictment for a crime in a State Court, and the defendant should allege in his defence, that the crime was committed by an ex post facto act of the State; must not the State Court, in [19 U.S. 264, 369]   the exercise of a jurisdiction which has already rightfully attached, have a right to pronounce on the sufficiency and validity of the defence? It would be extremely difficult, upon any legal principles, to give a negative answer to these inquiries. Innumerable instances of the same sort might be stated in illustration of the position; and unless the State Courts could sustain jurisdiction in such cases, this clause of the sixth article would be without meaning or effect, and public mischiefs of a most enormous magnitude would inevitably ensue.' So the Court afterwards say, in the context of the passage before cited, speaking of the inadequacy of the remedy of removal of suits to accomplish the purposes of the constitution, 'in respect to criminal prosecutions, the difficulty seems admitted to be insurmountable,'&c. 28 What difficulty? The difficulty of controlling them by the Courts of the United States without the aid of a writ of error, because those Courts could take no original cognizance of this description of cases, and they could not be removed before judgment. As, then, the federal Courts have no original jurisdiction of cases arising merely under the constitution, laws, and treaties of the Union, it follows, that the clause of the constitution which speaks of cases in which a State shall be a party, does not apply to it: and the appellate power, now in question, is to be sought for in that part of the same article which declares, that the judicial power of the Union shall extend to all cases arising under the [19 U.S. 264, 370]   constitution, laws, and treaties of the Union, coupled with the subsequent provision, which declares, that in all cases to which that judicial power extends, this Court shall have appellate, where it has not original jurisdiction, with such exceptions, and under such regulations as Congress may prescribe. That it has appellate jurisdiction in all cases arising under the constitution, laws, and treaties of the United States, is established by the authority of the case of Martin v. Hunter: and that this appellate power is competent to control the State Courts, is also proved by that case. 29 There is, therefore, no open question but this, does the fact of a State being a party prosecutor in the State Court, make this case an exception, and take it out of the general rule? Upon the plain policy and purpose of the constitution it does not. This jurisdiction has already been shown to be different in its nature from the original jurisdiction which was exercised over States before the amendment of the constitution. But that other jurisdiction will go far to show, that there is nothing unnatural in giving appellate power over State Courts in cases where a State is a party plaintiff. The constitution authorized direct coercion over States or private citizens indifferently. The amendment has partly taken this away; but the spirit of the constitution is still manifested by the former provision. The same constitution also authorized appellate control over State Courts; and is it natural that it should condemn the same control, merely because [19 U.S. 264, 371]   a State has obtained the judgment to be revised? The constitution had no delicacy with regard to States on this matter. It considered them as directly amenable where original jurisdiction can be exerted. Why not empower its tribunals to affect their interests in an appellate form, by acting, not on the State, but on its Courts, as unquestionably it does in all cases where individuals are parties below? The appellate power is trifling, compared with the original as it formerly stood: and a constitution which gave the last could have no scruples about the first. The appellate control is respectful to the State sovereignties compared with the original; and it stands upon high considerations of self defence, upon grounds of constitutional necessity not applicable to the other. The suability of the States might have been dispensed with, and the constitution still be safe. But the judicial control of the Union over State encroachments and usurpations, was indispensable to the sovereignty of the constitution-to its integrity-to its very existence. Take it away, and the Union becomes again a loose and feeble confederacy-a government of false and foolish confidence-a delusion and a mockery! Why is it in cases, in which individuals are parties in a State Court, that the judgment may be revised in this Court? Because the judiciary of the Union ought to possess ample power to preserve the constitution, and laws, and treaties of the Union, from violation by other judicatures. Its judicial powers should be commensurate with its other powers, and rights, and prerogatives. They might else be evaded and [19 U.S. 264, 372]   trampled under foot by judicatures in which the constitution does not confide. This high motive is as strong, at least, where a State is plaintiff or prosecutor in its own Courts, as where it is not. Indeed, it is far stronger; for all the motives to judicial leanings and partialities here operate in their fullest force, though the State judges may not be conscious of their influence. The sovereignty of the State law-State pride- State interests-are here in paramount vigour as inducements to error; and judicial usurpation is countenanced by legislative support and popular prejudice. Let the Court look to the consequences of this distinction. A State passes a law repugnant to the national constitution. It gives a remedy in the name of an individual-a common informer. You may control this law, if the State judiciary acts upon it. But the State may avoid this (as it seems) by authorizing the remedy in its own name; and you thus lose your protecting jurisdiction over the subject, although you might still exercise it, as in the other case, in the inoffensive mode of confining your control to the State judiciary. The whole constitution of the Union might thus be overturned unless force should be resorted to: and the object of the constitution was to avoid force, by giving ordinary judicial power of correction.