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 afterward 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 possessor 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 indirectly 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 constitu

See chapter vi., on judicial power in America.

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

tions 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 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 satisfy or to disappoint so large a number of their fellow-citizens.

The peace, the prosperity, and the very existence of the Union, are invested in the hands of the seven judges. Without their active co-operation the constitution would be a dead letter: the executive appeals to them for assistance against the encroachments of the legislative 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 contempt. The force of public opinion is the most intractable of agents, because its exact limits cannot be defined; and it is not less dangerous to exceed, than to remain below the boundary prescribed.

The federal judges must not only be good citizens, and men possessed of that information and integrity which are indispensable to magistrates, but they must be statesmen— politicians, not unread in the signs of the times, not afraid to brave the obstacles which can be subdued, nor slow to turn aside such encroaching elements as may threaten the supremacy of the Union and the obedience which is due to the laws.

The president, who exercises a limited power, may err without causing great mischief in the state. Congress may decide amiss without destroying the Union, because the electoral body in which congress originates may cause it to retract its decision by changing

its members. But if the supreme court is ever composed of imprudent men or bad citizens, the Union may be plunged into anarchy or civil war.

The real cause of this danger, however, does not lie in the constitution of the tribunal, but in the very nature of federal governments. We have observed that in confederate peoples it is especially necessary to consolidate the judicial authority, because in no other nations do those independent persons who are able to cope with the social body, exist in greater power or in a better condition to resist the physical strength of the government. But the more a power requires to be strengthened, the more extensive and independent it must be made; and the dangers which its abuse may create are heightened by its independence and its strength. The source of the evil is not, therefore, in the constitution of the power, but in the constitution of those states which render its existence necessary.

IN WHAT RESPECTS THE FEDERAL CONSTITUTION IS SUPERIOR TO THAT OF THE STATES.

In what respects the Constitution of the Union can be compared to that of the States. -Superiority of the Constitution of the Union attributable to the Wisdom of the federal Legislators.-Legislature of the Union less dependant on the People than that of the States.-Executive Power more independent in its Sphere.-Judicial Power less subjected to the Inclinations of the Majority.-Practical Consequences of these Facts.-The Dangers inherent in a democratic Government eluded by the federal Legislators, and increased by the Legislators of the States.

THE federal constitution differs essentially from that of the states in the ends which it is intended to accomplish; but in the means by which these ends are promoted, a greater analogy exists between them. The objects of the governments are different, but their forms are the same; and in this special point of view there is some advantage in comparing them together.

I am of opinion that the federal constitution is superior to all the constitutions of the states, for several reasons.

The present constitution of the Union was formed at a later period than those of the majority of the states, and it may have de

rived some meliorations from past experience. But we shall be led to acknowledge that this is only a secondary cause of its superiority, when we recollect that eleven new states have been added to the American confederation since the promulgation of the federal constitution, and that these new republics have always rather exaggerated than avoided the defects which existed in the former constitutions.

The chief cause of the superiority of the federal constitution lay in the character of the legislators who composed it. At the time when it was formed the dangers of the confederation were imminent, and its ruin seemed inevitable. In this extremity the people chose the men who most deserved the esteem, rather than those who had gained the affections of the country. I have already observed, that distinguished as almost all the legislators of the Union were for their intelligence, they were still more so for their patriotism. They had all been nurtured at a time when the spirit of liberty was braced by a continual struggle against a powerful and predominant authority. When the contest was terminated, while the excited passions of the populace persisted in warring with dangers which had ceased to threaten them, these men stopped short in their career; they cast a calmer and more penetrating look upon the country which was now their own; they perceived that the war of independence was definitely ended, and that the only dangers which America had to fear were those which might result from the abuse of the freedom she had won. They had the courage to say what they believed to be true, because they were animated by a warm and sincere love of liberty; and they ventured to propose restrictions, because they were resolutely opposed to destruction.*

At this time Alexander Hamilton, who was one of the principal founders of the constitution, ventured to express the following sentiments in the Federalist, No. 71: "There are some who would be inclined to regard the servile pliancy of the executive to a prevailing current, either in the community or in the legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberative sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men who flatter their prejudices to betray their interests. It is a just observation that the people commonly intend the public good. This often applies to their very errors. But their good sense would despise the adulator who should