was therefore necessary to allow one of these courts to judge its own cause, and to take or to retain cognizance of the point which was contested. To grant this privilege to the different courts of the States, would have been to destroy the sovereignty of the Union de facto, after having established it de jure; for the interpretation of the Constitution would soon have restored that portion of independence to the States of which the terms of that act deprived them. The object of the creation of a Federal tribunal was to prevent the courts of the States from de. ciding questions affecting the national interests in their own depart. ment, and so to form a uniform body of jurisprudence for the interpretation of the laws of the Union. This end would not have been accomplished if the courts of the several States had been competent to decide upon cases in their separate capacities, from which they were obliged to abstain as Federal tribunals. The Supreme Court of the United States was therefore invested with the right of determining all questions of jurisdiction.*

This was a severe blow upon the independence of the States, which was thus restricted not only by the laws, but by the interpretation of them; by one limit which was known, and by another which was dubi. ous; by a rule which was certain, and a rule which was arbitrary. It is true the Constitution had laid down the precise limits of the Federal su. premacy, but whenever this supremacy is contested by one of the States, a Federal tribunal decides the question. Nevertheless, the dangers with which the independence of the States was threatened by this mode of proceeding are less serious than they appeared to be. We shall see hereafter that in America the real strength of the country is vested in the provincial far more than in the Federal Government. The Fede. ral judges are conscious of the relative weakness of the power in whose name they act, and they are more inclined to abandon a right of juris. diction in cases where it is justly their own, than to assert a privilege to which they have no legal claim.

* In oder to diminish the number of these suits, it was decided that in a great many Federal causes the courts of the States should be empowered to decide conjointly with those of the Union, the losing party having then a right of appeal to the Supreme Court of the United States. The Supreme Court of Virginia contested the right of the Supreme Court of the United States to judge an appeal from its decisions, but unsuccessfully. See Kent's Commentaries, vol. i. p. 300, p. 370, et seq. ¡ Story's Commentaries, p. 646; and The Organie Law of the United States,

vol. i.

p.

35.

DIFFERENT CASES OF JURISDICTION.

The matter and the party are the first conditions of the Federal jurisdiction.—Suits in which ambassadors are engaged.—Suits of the Union.—Of a separate State.— By whom tried.—Causes resulting from the laws of the Union.—Why judged by the Federal tribunals.-Causes relating to the non-performance of contracts tried by the Federal courts.--Consequences of this arrangement.

AFTER having appointed the means of fixing the competency of the Federal courts, the legislators of the Union defined the cases which should come within their jurisdiction. It was established, on the one hand, that certain parties must always be brought before the Federal courts, without any regard to the special nature of the cause; and, on the other, that certain causes must always be brought before the same courts, without any regard to the quality of the parties in the suit. These distinctions were therefore admitted to be the bases of the Federal jurisdiction.

Ambassadors are the representatives of nations in a state of amity with the Union, and whatever concerns these personages concerns in some degree the whole Union. When an ambassador is a party in a suit, that suit affects the welfare of the nation, and a Federal tribunal is naturally called upon to decide it.

The Union itself may be involved in legal proceedings, and in this case it would be alike contrary to the customs of all nations, and to common sense, to appeal to a tribunal representing any other sovereignty than its own; the Federal courts, therefore, take cognizance of these affairs.

When two parties belonging to two different States are engaged in a suit, the case cannot with propriety be brought before a court of either State. The surest expedient is to select a tribunal like that of the Union, which can excite the suspicions of neither party, and which offers the most natural as well as the most certain remedy.

When the two parties are not private individuals, but States, an im. portant political consideration is added to the same motive of equity.. The quality of the parties, in this case, gives a national importance to all their disputes; and the most trifling litigation of the States may be said to involve the peace of the whole Union.*

*The Constitution also says that the Federal courts shall decide" controversies between a State and the citizens of another State." And here a most important question of a constitutional nature arose, which was, whether the jurisdiction given

However the functions of the executive power may be restricted, it must always exercise a great influence upon the foreign policy of the country, for a negotiation cannot be opened or successfully carried on otherwise than by a single agent. The more precarious and the more perilous the position of a people becomes, the more absolute is the want of a fixed and consistent external policy, and the more dangerous does the elective system of the chief magistrate become. The policy of the Americans in relation to the whole world is exceedingly simple; and it may almost be said that no country stands in need of them, nor do they require the co-operation of any other people. Their indepen. dence is never threatened. In their present condition, therefore, the functions of the executive power are no less limited by circumstances than by the laws; and the President may frequently change his line of policy without involving the State in difficulty or destruction.

Whatever the prerogatives of the executive power may be, the period which immediately precedes an election, and the moment of its duration, must always be considered as a national crisis, which is perilous in proportion to the internal embarrassments and the external dangers of the country. Few of the nations of Europe could escape the calami. ties of anarchy or of conquest, every time they might have to elect a new sovereign. In America society is so constituted that it can stand without assistance upon its own basis; nothing is to be feared from the pressure of external dangers; and the election of the President is a cause of agitation, but not of ruin.

MODE OF ELECTION.

Skill of the American legislators shown in the mode of election adopted by them. Creation of a special electoral body.-Separate votes of these electors.-Case in which the House of Representatives is called upon to choose the President:-Results of the twelve elections which have taken place since the Constitution has been established.

BESIDES the dangers which are inherent in the system, many other difficulties may arise from the mode of election, which may be obviated by the precaution of the legislator. When a people met in arms on some public spot to choose its head, it was exposed to all the

chances of civil war resulting from so martial a mode of proceeding, besides the dangers of the elective system in itself. The Polish laws, which subjected the election of the sovereign to the veto of a single individual, suggested the murder of that individual, or prepared the way to anarchy.

In the examination of the institutions, and the political as well as the social condition of the United States, we are struck by the admirable harmony of the gifts of fortune and the efforts of man. That nation possessed two of the main causes of internal peace; it was a new country, but it was inhabited by a people grown old in the exercise of freedom. America had no hostile neighbors to dread; and the American legislators, profiting by these favorable circumstances, created a weak and subordinate executive power, which could without danger be made elective.

It then only remained for them to choose the least dangerous of the various modes of election; and the rules which they laid down upon this point admirably complete the securities which the physical and political constitution of the country already afforded. Their object was to find the mode of election which would best express the choice of the people with the least possible excitement and suspense. It was admitted in the first place that the simple majority should be decisive; but the difficulty was to obtain this majority without an interval of delay which it was most important to avoid. It rarely happens that an individual can at once collect the majority of the suffrages of a great people; and this difficulty is enhanced in a republic of confederate States, where local influences are apt to preponderate. The means by which it was proposed to obviate this second obstacle was to delegate the electoral powers of the nation to a body of representatives. This mode of electión rendered a majority more probable; for the fewer the electors are, the greater is the chance of their coming to a final decision. It also offered an additional probability of a judicious choice. It then remained to be decided whether this right of election was to be entrusted to the legislative body, the habitual representative assembly of the nation, or whether an electoral assembly should be formed for the express purpose of proceeding to the nomination of a President. The Americans chose the latter alternative, from a belief that the individuals who were returned to make the laws were incompetent to represent the wishes of the nation in the election of its chief magistrate; and that as they are chosen for more than a year, the constituency they represented might have changed its opinion in that time. It was thought that if the legislature

was empowered to elect the head of the executive power, its members would, for some time before the election, be exposed to the manoeuvres of corruption, and the tricks of intrigue; whereas the special electors would, like a jury, remain mixed up with the crowd till the day of action, when they would appear for the sole purpose of giving their votes.

It was therefore established that every State should name a certain number of electors,* who in their turn should elect the President; and as it had been observed that the assemblies to which the choice of a chief magistrate had been entrusted in elective countries, inevitably became the centres of passion and of cabal; that they sometimes usurped an authority which did not belong to them and that their proceedings, or the uncertainty which resulted from them, were sometimes prolonged so much as to endanger the welfare of the State, it was determined that the electors should all vote upon the same day, without being convoked to the same place.† This double election rendered a majority probable, though not certain; for it was possible that as many differences might exist between the electors as between their constituents. In this case it was necessary to have recourse to one of three measures; either to appoint new electors, or to consult a second time those already appointed, or to defer the election to another authority. The first two of these alternatives, independently of the uncertainty of their results, were likely to delay the final decision, and to perpetuate an agitation which must always be accompanied with danger. The third expedient was therefore adopted, and it was agreed that the votes should be transmitted sealed to the President of the Senate, and that they should be opened and counted in the presence of the Senate and the House of Representatives. If none of the candidates has a majority, the House of Representatives then proceeds immediately to elect the President; but with the condition that it must fix upon one of the three candidates who have the highest numbers.‡

As many as it sends members to Congress. The number of electors at the election of 1833 was 288. (See the National Calendar, 1833.)

† The electors of the same State assemble, but they transmit to the central Government the list of their individual votes, and not the mere result of the vote of the majority.

In this case it is the majority of the States, and not the majority of the members, which decides the question; so that New York has not more influence in the debate than Rhode Island. Thus the citizens of the Union are first consulted as members of one and the same community; and, if they cannot agree, recourse is had to the division of the States, each of which has a separate and independent vote. This is one of the singularities of the Federal Constitution which can only be explained by the jar of conflicting interests.