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 to the States that portion of independence of which the terms of the Constitution deprived them. The object of creating a Federal tribunal was to prevent the State courts from deciding, each after its own fashion, questions affecting the national interests, and so to form a uniform body of jurisprudence for the interpretation of the laws of the Union. This end would not have been attained if the courts of the several States, even while they abstained from deciding cases avowedly Federal in their nature, had been able to decide them by pretending that they were not Federal. The Supreme Court of the United States was therefore invested with the right of determining all questions of jurisdiction.* This was a severe blow to the sovereignty 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 dubious, by a rule which was certain, and one which was arbitrary. It is true, the Constitution had laid down the precise limits of the Federal supremacy; 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 is threatened by this mode of proceeding are less serious than they appear to be. We shall see hereafter, * In order to diminish the number of these suits, however, it was decided that, in a great many Federal causes, the courts of the States should be cmpowered 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. pp. 300, 370, et seq. that, in America, the real power is vested in the States far more than in the Federal government. The Federal judges are conscious of the relative weakness of the power in whose name they act; and they are more inclined to abandon the right of jurisdiction, in cases where the law gives it to them, than to assert a privilege to which they have no legal claim. DIFFERENT CASES OF JURISDICTION. The Matter and the Party are the First Conditions of the Federal Jurisdiction. Suits in which Ambassadors are engaged. Or the Union. - Or 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 establishing the competency of the Federal courts, the legislators of the Union defined the cases which should come within their jurisdiction. It was determined, on the one hand, that certain parties must always be brought before the Federal courts, without regard to the special nature of the suit; and, on the other, that certain causes must always be brought before the same courts, no matter who were the parties to them. The party and the cause were therefore admitted to be the two bases of Federal jurisdiction. Ambassadors represent nations in amity with the Union, and whatever concerns these personages concerns in some degree the whole Union. When an ambassador, therefore, is a party in a suit, its issue 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 contrary to reason and to the customs of all nations to appeal to a tribunal representing any other sovereignty than its own: the Federal courts alone, 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 which can excite the suspicions of neither party, and this is naturally a Federal court. When the two parties are not private individuals, but States, an important political motive is added to the same consideration of equity. The quality of the parties, in this case, gives a national importance to all their disputes; and the most trifling litigation between two States may be said to involve the peace of the whole Union.* The nature of the cause frequently prescribes the rule of competency. Thus, all questions which concern maritime affairs evidently fall under the cognizance of the Federal tribunals.† Almost all these questions depend on the interpretation of the law of nations; and, in this respect, they essentially interest the Union in relation to foreign powers. Moreover, as the sea is not included within the limits of any one State jurisdiction rather than another, only the national courts can hear causes which originate in maritime affairs. The Constitution comprises under one head almost all the cases which, by their very nature, come before the *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 arose,—whether the jurisdiction given by the Constitution, in cases in which a State is a party, extended to suits brought against a State as well as by it, or was exclusively confined to the latter. The question was most elaborately considered in the case of Chisholm v. Georgin, and was decided by the majority of the Supreme Court in the af firmative. The decision created general alarm among the States, and an amendment was proposed and ratified, by which the power was entirely taken away so far as it regards suits brought against a State. † As, for instance, all cases of piracy. Federal courts. The rule which it lays down is simple, but pregnant with an entire system of ideas, and with a multitude of facts. It declares that the judicial power of the Supreme Court shall extend to all cases in law and equity arising under the laws of the United States. Two examples will put the intention of the legislator in the clearest light. The Constitution prohibits the States from making laws on the value and circulation of money. If, notwithstanding this prohibition, a State passes a law of this kind, with which the interested parties refuse to comply because it is contrary to the Constitution, the case must come before a Federal court, because it arises under the laws of the United States. Again, if difficulties arise in the levying of import duties which have been voted by Congress, the Federal court must decide the case, because it arises under the interpretation of a law of the United States. This rule is in perfect accordance with the fundamental principles of the Federal Constitution. The Union, as it was established in 1789, possesses, it is true, a limited sovereignty; but it was intended that, within its limits, it should form one and the same people.* Within those limits, the Union is sovereign. When this point is established and admitted, the inference is easy; for if it be acknowledged that the United States, within the bounds prescribed by their Constitution, constitute but one people, it is impossible to refuse them the rights which belong to other nations. But it has been allowed, from the origin of society, that every nation has the right of deciding by its own courts those questions which concern the execution *This principle was, in some measure, restricted by the introduction of the several States as independent powers into the Senate, and by allowing them to vote separately in the House of Representatives when the President is elected by that body. But these are exceptions, and the contrary principle is the rule. of its own laws. To this it is answered, that the Union is in so singular a position, that, in relation to some matters, it constitutes but one people, and in relation to all the rest, it is a nonentity. But the inference to be drawn is, that, in the laws relating to these matters, the Union possesses all the rights of absolute sovereignty. The difficulty is to know what these matters are; and when once it is resolved, (and we have shown how it was resolved, in speaking of the means of determining the jurisdiction of the Federal courts,) no further doubt can arise; for as soon as it is established that a suit is Federal, that is to say, that it belongs to the share of sovereignty reserved by the Constitution to the Union, the natural consequence is, that it should come within the jurisdiction of a Federal court. Whenever the laws of the United States are attacked, or whenever they are resorted to in self-defence, the Federal courts must be appealed to. Thus the jurisdiction of the tribunals of the Union extends and narrows its limits exactly in the same ratio as the sovereignty of the Union augments or decreases. We have shown that the principal aim of the legislators of 1789 was to divide the sovereign authority into two parts. In the one, they placed the control of all the general interests of the Union, in the other, the control of the special interests of its component States. Their chief solicitude was, to arm the Federal government with sufficient power to enable it to resist, within its sphere, the encroachments of the several States. As for these communities, the general principle of independence within certain limits of their own was adopted in their behalf; there the central government cannot control, nor even inspect, their conduct. In speaking of the division of authority, I observed that this latter principle had not always been respected, since the States are prevented from passing certain laws, which apparently belong to their own particular sphere of interest. When a State of the Union passes |