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of any statute, or authority exercised under any State, on the ground of repugnancy to the Constitution, laws, or treaties, of the United States, it has been invariably held to be a case, to which the judicial power of the United States extends.
§ 318. It has sometimes been suggested, that a case, to be within the purview of this clause, must be one, in which a party comes into court to demand something conferred on him by the Constitution, or a law, or a treaty, of the United States. But this construction is clearly too narrow. A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution, or a law, or a treaty, of the United States, whenever its correct decision depends on the construction of either. This is manifestly the construction given to the clause by Congress, by the 25th section of the Judiciary act, (which was almost contemporaneous with the Constitution, and there is no reason to doubt its solidity or correctness. Indeed, the main object of this clause would be defeated by any narrower construction ; since the power was conferred for the purpose, in an especial manner, of producing a uniformity of construction of the Constitution, laws, and treaties, of the United States.
§ 319. Cases may also arise under laws of the United States by implication, as well as by express enactment ; so that due redress may be administered by the judicial power of the United States. It is not unusual for a legislative act to involve consequences, which are not expressed. An officer, for example, is ordered to arrest an individual. It is not necessary, nor is it usual, to say, that he shall not be punished for obeying this order. His security is implied in the order itself. It is no unusual thing for an act of Congress to imply, without expressing, this very exemption from State control. The collectors of the revenue, the carriers of the mail, the mint establishment, and all those institutions, which are public in their nature, are examples in point. It has never been doubted, that all, who are employed in them, are protect
tion is not expressed in any act of Congress. It is incidental to, and is implied in, the seyeral acts, by which those institutions are created; and it is secured to the individuals, employed in them, by the judicial power alone; that is, the judicial power is the instrument employed by the Government in administering this security.
$ 320. It has also been asked, and may again be asked, why the words, “cases in equity,” are found in this clause ? What equitable causes can grow out of the Constitution, laws, and treaties, of the United States ? To this, the general answer seems at once clear and satisfactory. There is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable, rather than of legal, jurisdiction, as the distinction is known and established in several of the States. It is the peculiar province, for instance, of a court of equity, to relieve against what are called hard bargains. These are contracts, in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law; yet there may have been some undue and unconscionable advantage taken of the necessities, or misfortunes, of one of the parties, which a court of equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be impossible for the Federal judicatories to do justice, without an equitable, as well as a legal jurisdiction. Agreements to convey lands, claimed under the grants of different States, may afford another example of the necessity of an equitable jurisdiction in the Federal courts. This reasoning may not be so palpable in those States, where the formal and technical distinction between Law and EQUITY is not maintained, as in other States, where it is exemplified by every day's practice.
§ 321. The next clause, extends the judicial power " to all cases affecting ambassadors, other public ministers, and consuls.” The propriety of this delegation of power to the National Judiciary will scarcely be questioned by any persons, who have duly reflected upon the from ambassadors, (which is the highest grade,) down to common resident ministers, whose rank, and diplomatic precedence, and authority, are well known, and well ascertained, in the law and usages of nations. But whatever may be their relative rank and grade, public ministers of every class are the immediate representatives of their sovereigns. As such representatives, they owe no subjection to any laws, but those of their own country, any more than their sovereign ; and their actions are not generally deemed subject to the control of the private law of that State, wherein they are appointed to reside. He, that is subject to the coercion of laws, is necessarily dependent on that power, by whom those laws were made. But public ministers ought, in order to perform their duties to their own sovereign, to be independent of every power, except that by which they are sent ; and, of consequence, ought not to be subject to the mere municipal law of that nation, wherein they are to exercise their functions. The rights, the powers, the duties, and the privileges, of public ministers, are, therefore, to be determined, not by any municipal constitutions, but by the law of nature and nations, which is equally obligatory upon all sovereigns, and all states. What these rights, powers, duties, and privileges are, are inquiries properly belonging to a treatise on the law of nations, and need not be discussed here. But it is obvious, that every question, in which these rights, powers, duties, and privileges are involved, is so intimately connected with the public peace, and policy, and diplomacy, of the nation, and touches the dignity and interest of the sovereigns of the ministers concerned so deeply, that it would be unsafe, that they should be submitted to any other, than the highest judicature of the nation.
$ 322. Consuls, indeed, have not in strictness a diplomatic character. They are deemed to be mere commercial agents : and, therefore, partake of the ordinary character of such agents ; and are subject to the municipal laws of the countries, where they reside. Yet, as they are the public agents of the nation, to which they belong, and are often entrusted with the performance of very deli
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$ 323. The next clause extends the judicial power " to all cases of adroiralty and maritime jurisdictioa."
324. The adriralty and maritime jurisdiction, and the word, “ maritime,” was doub:less added to guard against any narrow interpretation of the preceding word, " adıniralıy,”') conferred by the Constitution, embraces two great classes of cases; one dependent upon locality, and the other upon the nature of the contract. The first, respects acts, or injuries, done upon the high sea, where all nations claim a common right and common jurisdiction; or acts, or injuries, done upon the coast of the sea ; or, at fartbest, acts and injuries done within the ebb and . flow of the tide. The second, respects contracts, claims, and services purely maritime, and touching rights and duties appertaining to commerce and navigation. The former is again divisible into two great branches, one embracing captures, and questions of prize arising by the rights of war; the other embracing acts, torts, and injuries, strictly of civil cognizance, independent of belligerent operations.
$325. By the law of nations, the cognizance of all captures, jure belli, or, as it is more familiarly phrased, of all questions of prize, and their incidents, belongs exclusively to the courts of the country, to which the captors belong, and from whom they derive their authority to make the capture. No neutral nation has any right to inquire into, or to decide upon, the validity of such capture, even though it should concern property belonging to its own citizens or subjects, unless its own sovereign or territorial rights are violated ; but the sole and exclu
ligerent. And this jurisdiction, by the common consent of nations, is vested exclusively in courts of admiralty, possessing an original, or appellate jurisdiction. The courts of common law are bound to abstain from any decision of questions of this sort, whether they arise directly or indirectly in judgement. The remedy for illegal acts of capture is, by the institution of proper prize proceedings in the prize courts of the captors. If justice be there denied, the nation itself becomes responsible to the parties aggrieved; and if every remedy is refused, it then becomes a subject for the consideration of the nation, to which the parties aggrieved belong, which may vindicate their rights, either by a peaceful appeal to negotiation, or by a resort to arms.
§ 326. It is obvious, upon the slightest consideration, that the cognizance of all questions of prize, made under the authority of the United States, ought to belong exclusively to the National courts. How, otherwise, can the legality of the captures be satisfactorily ascertained, or deliberately vindicated ? It seems not only a natural, but a necessary, appendage to the power of war, and of negotiation with foreign nations. It would otherwise follow, that the peace of the whole nation might be put at hazard, at any time, by the misconduct of one of its members. It could neither restore, upon an illegal capture; nor, in many cases, afford any adequate redress for the wrong ; nor punish the aggressor. It would be powerless and palsied. It could not perform, or compel the performance, of the duties required by the law of nations. It would be a sovereign, without any solid attribute of sovereignty; and move in chains, only to betray its own imbecility. Even under the Confederation, the power to decide upon questions of capture and prize was exclusively conferred, in the last resort, upon the National court of appeals. But, like all other powers conferred by that instrument, it was totally disregarded, wherever it interfered with State policy, or with extensive popular interests. We have seen, that the sentences of the National prize court of appeals were treated as mere nullities; and were incapable of being enforced, until after the establishment of the