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 sufficient to vest the jurisdiction, that an alien is a party to

British sub

the suit, unless the other party be a citizen. jects, born before the American Revolution, are to be deemed 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 enemies, 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 before the Supreme Court, if either party should require

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

this

§ 354. There are some additional suggestions upon 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 complicated subject.

ation at all. If the solicitude of the Convention, respecting our peace with foreign powers, might induce a provis ion to be made, that the Supreme Court should have original jurisdiction in cases, which might be supposed to affect them; yet the clause would have proceeded no further, than to provide for such cases, unless some further restriction upon the powers of Congress had been intended. The direction, that the Supreme Court shall have appellate jurisdiction, in all cases, with such exceptions, as Congress shall make, will be no restriction, unless the words are to be deemed exclusive of original jurisdiction. And accordingly, the doctrine is firmly established, that the Supreme Court cannot constitutionally exercise any original jurisdiction, except in the enumerated cases. If Congress should confer it, it would be a mere nullity.

§ 357. But, although the Supreme Court cannot exercise original jurisdiction, in any cases, except those specially enumerated, it is certainly competent for Congress to vest, in any inferior courts of the United States, original jurisdiction of all other cases, not thus specially assigned to the Supreme Court; for there is nothing in the Constitution, which excludes such inferior courts from the exercise of such original jurisdiction. Original jurisdiction, so far as the Constitution gives a rule, is coextensive with the judicial power; and except, so far as the Constitution has made any distribution of it among the courts of the United States, it remains to be exercised in an original, or an appellate form, or in both, as Congress may, in their wisdom, deem fit. Now, the Constitution has made no distribution, except of the original and appellate jurisdiction of the Supreme Court. It has nowhere insinuated, that the inferior tribunals shall have no original jurisdiction. It has nowhere affirmed, that they shall have appellate jurisdiction. Both are left unrestricted and undefined. Of course, as the judicial power is to be vested in the Supreme and inferior courts of the Union, both are under the entire control and regulation of Congress.

§ 358. Another question, of a very different nature, is, whether the Supreme Court can exercise appellate jurisdiction in the class of cases, of which original jurisdiction is

delegated to it by the Constitution; in other words, whether the original jurisdiction excludes the appellate; and so, on the other hand, whether the latter implies a negative of the former. It has been said, that the very distinction, taken in the Constitution, between original and appellate jurisdiction, presupposes, that, where the one can be exercised, the other cannot. For example, since the original jurisdiction extends to cases, where a State is a party, this is the proper form, in which such cases are to be brought before the Supreme Court; and, therefore, a case, where a State is a party, cannot be brought before the Court, in the exercise of its appellate jurisdiction; for the affirmative here, as well as in the cases of original jurisdiction, includes a negative of the cases not enumerated.

§ 359. If the correctness of this reasoning were admitted, it would establish no more, than that the Supreme Court could not exercise appellate jurisdiction in cases, where a State is a party. But it would by no means establish the doctrine, that the judicial power of the United States did not extend, in an appellate form, to such cases. The exercise of appellate jurisdiction is far from being limited, by the terms of the Constitution, to the Supreme Court. There can be no doubt, that Congress may create a succession of inferior tribunals, in each of which it may vest appellate, as well as original jurisdicdiction. This results from the very nature of the delegation of the judicial power in the Constitution. It is delegated in the most general terms; and may, therefore, be exercised under the authority of Congress, under every variety of form of original and of appellate jurisdiction. There is nothing in the instrument, which restrains or limits the power; and it must, consequently, subsist in the utmost latitude, of which it is in its nature susceptible. The result, then, would be, that, if the appellate jurisdiction over cases, to which a State is a party, could not, according to the terms of the Constitution, be exercised by the Supreme Court, it might be exercised exclusively by an inferior tribunal. The soundness of any reasoning, which would lead us to such a conclusion, may well be questioned. § 360. But the reasoning itself is not well founded.