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bunal, to which they may have resort upon all occasions, when it may be necessary to ascertain, or enforce their rights. Besides ; it is not wholly immaterial, that the law, to be administered in cases of foreigners, is often very distinct from the mere.municipal code of a State, and dependent upon the law merchant, or the more enlarged consideration of international rights and duties, in a case of conflict of the foreign and domestic laws. And it may fairly be presumed, that the National tribunals will, from the nature of their ordinary functions, become better acquainted with the general principles, which regulate subjects of this nature, than other courts, however enlightened, which are rarely required to discuss them.

$ 350. In regard to controversies between an American state and a foreign state, it is obvious, that the suit must, on one side at least, be wholly voluntary. No foreign state can be compelled to become a party, plaintiff or defendant, in any of our tribunals. If, therefore, it chooses to consent to the institution of any suit, it is its consent alone, which can give effect to the jurisdiction of the court. It is certainly desirable, to furnish some peaceable mode of appeal in cases, where any controversy may exist between an American state and a foreign state, sufficiently important to require the grievance to be redressed by any other mode, than through the instrumentality of negotiations.

$ 351. The inquiry may here be made, who are to be deemed aliens, entitled to sue in the courts of the United States. The general answer is, any person, who is not a citizen of the United States. A foreigner, who is naturalized, is no longer entitled to the character of an alien. And when an alien is the substantial party, it matters not, whether he is a suitor in his own right; or whether he acts, as a trustee, or a personal representative; or whether he is compellable, by the local law, to sue through some official organ. A foreign corporation, established in a foreign country, all of whose members are aliens, is entitled to sue in the same manner, that an alien may personally sue in the courts of the Union. It is not suffiseparation, although the origin of the title may be traced back to an antecedent period.

$ 348. Next: “Controversies between a State, or the citizens thereof, and foreign states, citizens, or subjects.” This provision has been vindicated in the following brief, but powerful manner. The peace of the whole ought not to be left at the disposal of a part. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice, by the sentences of courts, is with reason classed among the just causes of war, it will follow, that the National Judiciary ought to have cognizance of all causes, in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the public tranquillity. A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations, and those, which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the National jurisdiction; the latter for that of the States. But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, as it is called, that is, to the local law, would not, if unredressed, be an aggression upon his sovereign, as well as one, which violated the stipulations of a treaty, or the general law of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion, and those of the other. So great a proportion of the controversies, in which foreigners are parties, involve national questions, that it is by far the most safe, and most expedient, to refer all those, in which they are concerned, to the National tribunals.

§ 349. In addition to these suggestions, it may be remarked, that it is of great national importance to advance public, as well as private credit, in our intercourse with foreign nations and their subjects. Nothing can be more bunal, to which they may have resort upon all occasions, when it may be necessary to ascertain, or enforce their rights. Besides ; it is not wholly immaterial, that the law, to be administered in cases of foreigners, is often very distinct from the mere.municipal code of a State, and dependent upon the law merchant, or the more enlarged consideration of international rights and duties, in a case of conflict of the foreign and domestic laws. And it may fairly be presumed, that the National tribunals will, from the nature of their ordinary functions, become better acquainted with the general principles, which regulate subjects of this nature, than other courts, however enlightened, which are rarely required to discuss them.

$ 350. In regard to controversies between an American state and a foreign state, it is obvious, that the suit must, on one side at least, be wholly voluntary. No foreign state can be compelled to become a party, plaintiff or defendant, in any of our tribunals. If, therefore, it chooses to consent to the institution of any suit, it is its consent alone, which can give effect to the jurisdiction of the court. It is certainly desirable, to furnish some peaceable mode of appeal in cases, where any controversy may exist between an American state and a foreign state, sufficiently important to require the grievance to be redressed by any other mode, than through the instrumentality of negotiations.

$ 351. The inquiry may here be made, who are to be deemed aliens, entitled to sue in the courts of the United States. The general answer is, any person, who is not a citizen of the United States. A foreigner, who is naturalized, is no longer entitled to the character of an alien. And when an alien is the substantial party, it matters not, whether he is a suitor in his own right; or whether he acts, as a trustee, or a personal representative; or whether he is compellable, by the local law, to sue through some official organ. A foreign corporation, established in a foreign country, all of whose members are aliens, is entitled to sue in the same manner, that an alien may personally sue in the courts of the Union. It is not suffithe suit, unless the other party be a citizen. British subjects, born before the American Revolution, are to be deemned aliens ; and may sue American citizens, born before the Revolution, as well as those born since that period. The Revolution severed the ties of allegiance; and made the inhabitants of each country aliens to each other. In relation to aliens, however, it should be stated, that they have a right to sue only, while peace exists between their country and our own. For, if a war break out, and they thereby become alien enernies, their right to sue is suspended, until the return of peace.

$ 352. We have now finished our review of all the classes of cases, to which the judicial power of the United States extends ; and this review will (we trust) amply establish the reasonableness, the sound policy, and in many cases, the indispensable necessity, of confining this jurisdiction on the National Government. The next inquiry naturally presented, is in what mode this jurisdiction is to be exercised, and in what courts it is to be vested. The next clause of the third article, answers the inquiry. It is as follows : “ 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. 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.”

§ 353. By original jurisdiction, is here meant, that the party may commence his suit directly, and in the first instance, in the Supreme Court; by appellate jurisdiction is meant, a right to revise the decision or judgement, made by some other court, in which the suit has been instituted. For reasons of the highest public policy, original jurisdiction is given to the Supreme Court in cases, in which foreign nations and the States are concerned, as more appropriate to their dignity, and, under all circumstances, more fit to receive the decision of the highest tribunals. Other cases may conveniently be left to the inferior tribunals, and be brought by appeal for revision

it, leaving to Congress the authority to regulate the right of appeal, in the exercise of a sound discretion.

§ 354. There are some additional suggestions upon this clause, which may, perhaps, be useful to that class of readers who desire to comprehend the full force and operation of this clause, in its various practical bearings.*.

§ 355. The first remark, arising out of this clause, is, that, as the judicial power of the United States extends to all the cases enumerated in the Constitution, it may extend to all such cases, in any form, in which judicial power may be exercised. It may, therefore, extend to them in the shape of original, or of appellate jurisdiction, or of both ; for there is nothing in the nature of the cases, which binds to the exercise of the one in preference to the other. But it is clear, from the language of the Constitution, that, in one form or the other, it is absolutely obligatory upon Congress, to vest all the jurisdiction in the National courts, in that class of cases, at least, where it has declared, that it shall extend to "all cases."

§ 356. In the next place, the jurisdiction, which is by the Constitution to be exercised by the Supreme Court in an original form, is very limited, and extends only to cases affecting ambassadors, and other public ministers, and consuls, and cases, where a State is a party. And Congress cannot constitutionally confer on it any other, or further original jurisdiction. This is one of the appropriate illustrations of the rule, that the affirmation of a power in particular cases, excludes it in all others. The clause itself would otherwise be wholly inoperative and nugatory. If it had been intended to leave it to the discretion of Congress, to apportion the judicial power between the Supreme and inferior courts, according to the will of that body, it would have been useless to have proceeded further, than to define the judicial power, and the tribunals, in which it should be vested. Affirmative words often, in their operation, imply a negative of other objects, than those affirmed ; and in this case, a negative, or exclusive sense, must be given to the words, or they have no oper

* The following sections of this chapter can be omitted by those, whose studies may not enable them .fully to understand this compli

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