fluencing the obligation of a contract, and thus the contracts themselves be destroyed? The answer to this would be, that the question would not arise under the clause forbidding laws impairing the obligation of contracts, for that clause applies only to the States and not to the Federal govern

ment.

If it be intended, that the States may find it necessary to pass political laws, which affect contracts, and that under the pretence of vindicating the obligation of contracts, the central authority may make aggressions on the States and annul their political laws:—the answer is, that the motive to the adoption of the clause was to reach laws of every description, political as well as all others, and that it was the abuse by the States of what may be called political laws, viz: acts confiscating demands of foreign creditors, that gave rise to the prohibition. The settled doctrine now is, that States may pass laws in respect to the making of contracts, may prescribe what contracts shall be made, and how, but that they cannot impair any that are already made.

The writer of this note is unwilling to dismiss the subject, without remarking upon what he must think a fundamental error of the author, which is exhibited in the passage commented on, as well as in other passages :—and that is, in supposing the judiciary of the United States, and particularly the Supreme Court, to be a part of the political Federal government, and as the ready instrument to execute its designs upon the State authorities. Although the judges are in form commissioned by the United States, yet in fact, they are appointed by the delegates of the State, in the Senate of the United States, concurrently with, and acting upon, the nomination of the President. If the Legislature of each State in the Union were to elect a judge of the Supreme Court, he would not be less a political officer of the United States than he now is. In truth, the judiciary have no political duties to perform; they are arbiters chosen by the Federal and State governments, jointly, and when appointed, as independent of the one as of the other. They cannot be removed without the consent of the States represented in the Senate, and they can be removed without the consent of the President, and against his wishes. Such is the theory of the Constitution. And it has been felt practically, in the rejection by the Senate of persons nominated as judges, by a President of the same political party with a majority of the Senators. Two instances of this kind occurred during the administration of Mr. Jefferson.

If it be alleged that they are exposed to the influence of the Executive of the United States, by the expectation of offices in his gift, the answer is, that judges of State courts are equally exposed to the same influence,—that all State officers, from the highest to the lowest, are in the same predicament; and that this circumstance does not, therefore, deprive them of the character of impartial and independent arbiters.

These observations receive confirmation from every recent decision of the Supreme Court of the United States, in which certain laws of individual States have been sustained, in cases where, to say the least, it was very ques

tionable whether they did not infringe the provisions of the Constitution, and where a disposition to construe those provisions broadly and extensively, would have found very plausible ground to indulge itself in annulling the State laws referred to. See the cases of City of New York vs. Miln, 11th Peters 103. Briscor vs. the Bank of the Commonwealth of Kentucky, ib. Charles River Bridge vs. Warren Bridge, ib. 420.—American

257. Editor.]

PROCEDURE OF THE FEDERAL COURTS.

Natural, weakness of the judiciary power in confederations.—Legislators ought to strive as much as possible to bring private individuals, and not States, before the Federal Courts.—How the Americans have succeeded in this.—Direct prosecution of private individuals in the Federal Courts.—Indirect prosecution of the States which violate the laws of the Union.—The decrees of the Supreme Court enervate but do not destroy the provincial laws.

I have shown what the privileges of the Federal Courts are, and it is no less important to point out the manner in which they are exercised. The irresistible authority of justice in countries in which the sove, reignty is undivided, is derived from the fact that the tribunals of those countries represent the entire nation at issue with the individual against whom their decree is directed; and the idea of power is thus introduc. ed to corroborate the idea of right. But this is not always the case in countries in which the sovereignty is divided: in them the judicial power is more frequently opposed to a fraction of the nation than to an isolated individual, and its moral authority and physical strength are consequently diminished. In Federal States the power of the judge is naturally decreased, and that of the justiciable parties is augmented. The aim of the legislator in confederate States ought therefore to be, to render the position of the courts of justice analogous to that which they occupy in countries where the sovereignty is undivided; in other words, his efforts. ought constantly to tend to maintain the judicial power of the confederation as the representative of the nation, and the justiciable party as the representative of an individual interest.

Every Government, whatever may be its constitution, requires the means of constraining its subjects to discharge their obligations, and of protecting its privileges from their assaults. As far as the direct action of the government on the community is concerned, the Constitution of the United States contrived, by a master-stroke of policy, that

the Federal Courts, acting in the name of the laws, should only take cognizance of parties in an individual capacity. For, as it had been declared that the Union consisted of one and the same people within the limits laid down by the Constitution, the inference was that the Government created by this Constitution, and acting within these limits, was invested with all the privileges of a national Government, one of the principal of which is the right of transmitting its injunctions directly to the private citizen. When, for instance, the Union votes an impost, it does not apply to the States for the levying of it, but to every American citizen, in proportion to his assessment. The Supreme Court, which is empowered to enforce the execution of this law of the Union, exerts its influence not upon a refractory State, but upon the private tax-payer; and, like the judicial power of other nations, it is opposed to the person of an individual. It is to be observed that the Union chose its own antagonist; and as that antagonist is feeble, he is naturally worsted.

But the difficulty increases when the proceedings are not brought forward by but against the Union. The Constitution recognizes the legislative power of the States; and a law so enacted may impair the privileges of the Union, in which case a collision is unavoidable between that body and the State which has passed the law; and it only remains to select the least dangerous remedy, which is very clearly deducible from the general principles I have before established.✻

It may be conceived that, in the case under consideration, the Union might have sued the State before a Federal court, which would have annulled the act; and by this means it would have adopted a natural course of proceeding: but the judicial power would have been placed in open hostility to the State, and it was desirable to avoid this predicament as much as possible. The Americans hold that it is nearly impossible that a new law should not impair the interests of some private individual by its provisions: these private interests are assumed by the American legislators as the ground of attack against such measures as may be prejudicial to the Union, and it is to these cases that the protection of the Supreme Court is extended.

Suppose a State vends a certain portion of its territory to a company, and that a year afterwards it passes a law by which the territory is otherwise disposed of, and that clause of the Constitution, which prohibits laws impairing the obligation of contracts, is violated. When the purchaser under the second act appears to take possession, the pos.

*See Chapter VI. on Judicial Power in America,

sessor under the first act brings his action before the tribunals of the Union, and causes the title of the claimant to be pronounced null and void.✻ Thus, in point of fact, the judicial power of the Union is contesting the claims of the sovereignty of a State; but it only acts indi. rectly and upon a special application of detail: it attacks the law in its consequences, not in its principle, and it rather weakens than destroys it.

The last hypothesis that remained was that each State formed a corporation enjoying a separate existence and distinct civil rights, and that it could therefore sue or be sued before a tribunal. Thus a State could bring an action against another State. In this instance the Union was not called upon to contest a provincial law, but to try a suit in which a State was a party. This suit was perfectly similar to any other cause, except that the quality of the parties was different; and here the danger pointed out at the beginning of this chapter exists with less chance of being avoided. The inherent disadvantage of the very 'essence of federal constitutions is, that they engender parties in the bosom of the nation, which present powerful obstacles to the free course of justice.

HIGH RANK OF THE SUPREME COURTS AMONG THE GREAT POWERS OF STATE.

No nation ever constituted so great a judicial power as the Americans.—Extent of its prerogative. Its political influence. The tranquillity and the very existence of the Union depend on the discretion of the seven Federal Judges.

When we have successfully examined in detail the organization of the Supreme Court, and the entire prerogatives which it exercises, we shall readily admit that a more imposing judicial power was never constituted by any people. The Supreme Court is placed at the head of all known tribunals, both by the nature of its rights and the class of justiciable parties which it controls.

In all the civilized countries of Europe, the Government has always shown the greatest repugnance to allow the cases to which it was itself

See Kent's Commentaries, vol. i. p. 387.

a party to be decided by the ordinary course of justice. This repugnance naturally attains its utmost height in an absolute Government; and, on the other hand, the privileges of the courts of justice are extended with the increasing liberties of the people; but no European nation has at present held that all judicial controversies, without regard to their origin, can be decided by the judges of common law.

In America this theory has been actually put in practice; and the Supreme Court of the United States is the sole tribunal of the nation. Its power extends to all the cases arising under laws and treaties made by the executive and legislative authorities, to all cases of admiralty and maritime jurisdiction, and in general to all points which affect the law of nations. It may even be affirmed that, although its constitution is essentially judicial, its prerogatives are almost entirely political. Its sole object is to enforce the execution of the laws of the Union; and the Union only regulates the relations of the Government with the citizens, and of the nation with Foreign Powers: the relations of citizens among themselves are almost exclusively regulated by the sovereignty of the States.

A second and still greater cause of the preponderance of this court may be adduced. In the nations of Europe the courts of justice ́ are only called upon to try the controversies of private individuals; but the Supreme Court of the United States summons sovereign powers to its bar. When the clerk of the court advances on the steps of the tribunal, and simply says, "The State of New York versus the State of Ohio," it is impossible not to feel that the court which he addresses is no ordinary body; and when it is recollected that one of these parties represents one million, and the other two millions of men, one is struck by the responsibility of the seven judges whose decision is about to sa tisfy or to disappoint so large a number of their fellow-citizens.

The peace, the prosperity, and the very existence of the Union, are vested in the hands of the seven judges. Without their active co-op

letter: the Executive ap

eration the Constitution would be a dead peals to them for assistance against the encroachments of the legisla. tive powers; the Legislature demands their protection from the designs of the Executive; they defend the Union from the disobedience of the States, the States from the exaggerated claims of the Union, the public interest against the interests of private citizens, and the conservative spirit of order against the fleeting innovations of democracy. Their power is enormous, but it is clothed in the authority of public opinion. They are the all-powerful guardians of a people which respects law; but they would be impotent against popular neglect or popular con