a law of this kind, the citizens who we met by Is ecution can appeal to the Federal mirs.

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Thus the jurisdictice of the Feieni ras only to all the cases white mie de avi i za Union, but also to those with vise mer av TE the several States in opposition de man. States are prohibited from many IV I criminal cases; and any person condemnet by me of a law of this kind, can appeal the deal power of the Union. The States are revise pribited mang laws which may impair the colgation of women.* 三 citizen thinks that an obligation

a law passed in his State, he may may appeal to the Federal coCITE+

* It is perfectly clear, says Mr. Story Commentaries 7. 3. large edition § 1379,) that any law vich eings, uniga 15 m ner changes the intention of the parties, resulting from the Ion I the contract, necessarily impairs i. He gus a te ame a

ful definition of what is understood by a mummur ʼn Friem marad The definition is very broad. A grant made by fire nå vidual, and accepted by him, is a contract, and cannot escked by my future law. A charter granted by the State a company s 1 same më equally binding on the State as on the grantee. The cause of the Gizem tion here referred to insures, therefore, the existence of 1 gr f

quired rights, but not of all. Property may legally be lead, finngh I nay not have passed into the possessor's hands by means of a murmer mi s possession is an acquired right, not guaranteef by the Federal Constitution. † A remarkable instance of this is given by Mr. Sorry J. large edition § 1388). "Dartmouth College in New Hampshire at een founded by a charter granted to certain individuals tehre de Aner, an Revolution, and its trustees formed a corporation der his harer. The legislature of New Hampshire had, without the moment of his scention passed an act changing the terms of the original sharer of the Sales, mi transferring all the rights, privileges, and franchises termed from he vi charter to new trustees appointed under the act The institutionality w the act was contested, and the cause was carried a de Supreme 7 eral) Court, where it was held, that the Provincial harer vis & saract within the meaning of the Constitution, and that the amendatory set vas utterly void, as impairing the obligation of that charter.”

This provision appears to me to be the most serious attack upon the independence of the States. The rights accorded to the Federal government for purposes obviously national are definite and easily understood: but those with which this clause invests it are neither clearly appreciable nor accurately defined. For there are many political laws which affect the existence of contracts, which might thus furnish a pretext for the encroachments of the central authority.*

* The apprehensions expressed in this paragraph seem to be unfounded. The object of the clause in the Constitution respecting contracts is not so much to strengthen the Federal government as to protect private individuals against harmful and unjust State legislation. It does not limit the power of the States, except by prohibiting them from committing positive wrong. They can still legislate upon the subject of future contracts; they can prescribe what contracts shall be formed, and how; but they cannot impair any that are already made. Any law which should authorize the breach of a contract already made, or in any way impair its obligation, would be obviously unjust.

Moreover, as Mr. Spencer observes, the author is in error "in supposing the judiciary of the United States, and particularly the Supreme Court, to be a part of the political Federal government, and a ready instrument to execute its designs upon the State authorities. Although the judges are in form commissioned by the United States, yet they are in fact appointed by the delegates of the States, in the Senate of the United States, concurrently with and acting upon the nomination of the President. 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 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 dur ing the administration of Mr. Jefferson."-- AM. ED.

PROCEDURE OF THE FEDERAL COURTS.

Natural Weakness of the Judicial Power in Confederations. - Legislators ought, 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 State Laws.

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I HAVE shown what the rights of the Federal courts are, and it is no less important to show how they are exercised. The irresistible authority of justice in countries in which the sovereignty 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 introduced to corroborate the idea of right. But it is not always so 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 take cognizance only 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 acts only upon 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 enacted by that power may violate the rights of the Union. In this 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. The general principles which I have before established show what this remedy is.*

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; this would have been the most natural proceeding. But the judicial power

*See Chapter VI., on Judicial Power in America.

would thus have been placed in direct opposition 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 injure some private interests by its provisions. These private interests are assumed by the American legislators as the means of assailing such measures as may be prejudicial to the Union, and it is to these interests that the protection of the Supreme Court is extended.

Suppose a State sells a portion of its public lands to a company, and that, a year afterwards, it passes a law by which the lands are otherwise disposed of, and that clause of the Constitution which prohibits laws impairing the obligation of contracts is thereby 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 acts only indirectly, and upon an application of detail. It attacks the law in its consequences, not in its principle, and rather weakens than destroys it.

The last case to be provided for 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 State 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 still exists, with less chance of being avoided. It is inherent in the very essence of Fed

*See Kent's Commentaries, Vol. I. p. 387.