1793.
cidental power. The total negation of execution is obviously inadmissible; and the construction of the judicial act, which has been just insisted on, would be sufficiently efficacious. But why may not executions even spring from the will of the Supreme Court, as the writs of fieri facias, levari facias, and distringas were originally the creation of Courts? Such an incidental authority is not of a higher tone than that of fine and imprisonment, which belongs to every Court of record, without a particular grant of it. But what species of execution can be devised? This, though, a difficult task, is not impracticable. And if it were incumbent on me to anticipate the measures of the Court, I would suggest these outlines of conduct. First, that if the judgment be for the specific thing, it may be seized: or, secondly, if for damages, such property may be taken, as, upon the principles, and under the circumstances cited from Bynkershock, would be the groundwork of jurisdiction over a sovereign Prince. However, it is of no consequence, whether the conjectures be accurate or not; as a correct plan can doubtless be discovered.
Still we maybe pressed with the final question: “What if the State is resolved to oppose the execution?” This would be an awful question indeed! He, to whose lot it should fall to solve it, would be impelled to invoke the god of wisdom, to illuminate his decision. I will not believe that he would recal the tremendous examples of vengeance, which in past days have been inflicted by those who claim, against those who violate, authority. I will not believe that in the wide and gloomy theatre, over which his eye should roll, he might perchance catch a distant glimpse of the Federal arm uplifted. Scenes like these are too full of horror, not to agitate, not to rack, the imagination. But at last we must settle on this result; there are many duties, precisely defined, which the States must perform. Let the remedy which is to be administered, if these should be disobeyed, be the remedy on the occasion, which we contemplate. The argument requires no more to be said: it surely does not require us to dwell on such painful possibilities. Rather, let me hope and pray, that not a single star in the American Constellation will ever suffer its lustre to be diminished by hostility against the sentence of a Court, which itself has adopted.
But, after all, although no mode of execution should be invented, why shall not the Court proceed to judgment? It is well known, that the Courts of some States have been directed to render judgment, and there stop; and that the Chancery has often tied up the hands of the common law in a like manner. Perhaps, if a Government could be constituted without mingling at all the three orders of power, Courts should, in