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these, we will speak in their order. And, first, “Controversies between two or more States.” This power seems to be essential to the preservation of the peace of the Union. History gives us a horrid picture of the dissensions and private wars, which distracted and desolated Germany, prior to the institution of the imperial chamber by Maximilian, towards the close of the fifteenth century; and informs us, at the same time, of the vast influence of that institution, in appeasing the disorders, and establishing the tranquillity, of the empire. This was a court invested with authority to decide finally all differences among the members of the Germanic body. But we need not go for illustrations to the history of other countries. Our own has presented, in past times, abundant proofs of the irritating effects resulting from territorial disputes, and interfering claims of boundary between the States. And there are yet controversies of this sort, which have brought on a border warfare, at once dangerous to public repose, and incompatible with the public interests.

$ 334. Under the Confederation, authority was given to the National Government, to hear and determine, (in the manner pointed out in the article,) in the last resort, on appeal, all disputes and differences between two or more States concerning boundary, jurisdiction, or any other cause whatsoever. Before the adoption of this instrument, as well as afterwards, very irritating and vexatious controversies existed between several of the States, in respect to soil, jurisdiction, and boundary; and threatened the most serious public mischiefs. Some of these controversies were heard and determined by the court of commissioners, appointed by Congress. But, notwithstanding these adjudications, the conflict was maintained in some cases, until after the establishment of the present Constitution.

§ 335. Before the Revolution, controversies between the colonies, concerning the extent of their rights of soil, territory, jurisdiction, and boundary, under their respective charters, were heard and determined before the King in council, who exercised original jurisdiction therein, tion was often practically asserted, as in the case of the dispute between Massachusetts and New Hampshire, decided by the Privy Council, in 1679; and in the case of the dispute between New Hampshire and New York, in 1764. Lord Hardwicke recognised this appellate jurisdiction in the most deliberate manner, in the great case of William Penn v. Lord Baltimore. The same necessity, which gave rise to it in our colonial state, must continue to operate through all future time. Some tribunal, exercising such authority, is essential to prevent an appeal to the sword, and a dissolution of the government. That it ought to be established under the National, rather than under the State, Government; or, to speak more properly, that it can be safely established under the former only, would seem to be a position self-evident, and requiring no reasoning to support it. It may justly be presumed, that under the National Government, in all controversies of this sort, the decision will be impartially made, according to the principles of justice; and all the usual and most effectual precautions are taken to secure this impartiality, by confiding it to the highest judicial tribunal.

§ 336. Next : “ Controversies between a State and 66 the citizens of another State.” There are other sources, besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the Union. The past experience of the Country has furnished some melancholy instances of this truth. Under the Confederation, laws, of a character utterly indefensible in point of justice and principle, were passed in some of the States, affecting the rights of citizens of other States. And though the Constitution establishes particular guards against the repetition of those instances, which have hitherto made their appearance ; yet it is warrantable to apprehend, that the spirit, which produced them, will assume new shapes, that could not be foreseen, nor specifically provided against. Whatever practices may have a tendency to distract the harmony of the States, are proper objects of national superintendence and control. It may be esteemed the basis of the Union, that the and immunities of citizens of the several States.' And if it be a just principle, that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that, in order to the inviolable maintenance of that equality of privileges and immunities, to which the citizens of the Union will be entitled, the National Judiciary ought to preside in all cases, in which one State, or its citizens, are opposed to another State, or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary, that its interpretation should be committed to that tribunal, which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles, on which it is founded. It may be added, that the reasonableness of the agency of the National courts in cases, in which the State tribunals cannot be supposed to be impartial, speaks for it. No man ought certainly to be a judge in his own cause, or in any cause, in respect to which he has the least interest or bias. This principle had no inconsiderable weight in designating the national courts, as the proper tribunals for the determination of controversies between different States and their citizens.

§ 337. And here a most important question of a constitutional nature was formerly litigated ; and that is, 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. It is obvious, that, if a suit could be brought, by any citizen of one State against another State, upon any contract, or matter of property, the State would be constantly subjected to judicial action, to enforce private rights against it in its sovereign capacity. Accordingly, at a very early period, numerous suits were brought against particular States by their creditors, to enforce the payment of debts, or other claims. The question was made, and most elaborately considered, in the celebrated Supreme Court held, that the judicial power, under the Constitution, applied equally to suits brought by, and suits brought against a State. All the learned judges, on that occasion, delivered opinions, containing the grounds of their respective judgements. It is not my intention to go over these grounds, although they are stated with great ability and legal learning, and exhibit a very thorough mastery of the whole subject. The decision created general alarm among the States ; and an amendment was proposed, and ratified by the States, by which the power was entirely taken away, so far as it regards suits brought against a State. It is in the following words : " The judicial power of the United States shall not be construed to extend to any suit in law, or equity, commenced or prosecuted against one of the United States, by citizens of another State, or by citizens, or subjects of any foreign State.” This amendment was construed to include suits then pending, as well as suits to be com-, menced thereafter ; and, accordingly, all the suits then pending were dismissed, without any further adjudication. : § 338. Since this amendment has been made, a question of equal importance has arisen ; and that is, whether the amendment applies to original suits only, brought against a State, leaving the appellate jurisdiction of the Supreme Court in its full vigor over all constitutional questions, arising in the progress of any suit brought by a State, in any State court, against any private citizen or alien. But this question will more properly come under review, when we are considering the nature and extent of the appellate jurisdiction vi the Supreme Court. At present, it is only necessary to state, that it has been solemnly adjudged, that the amendment applies only to original suits against a State ; and does not touch the appellate jurisdiction of the Supreme Court to re-examine, on an appeal or writ of error, a judgement or decree rendered in any State court, in a suit brought originally by a State against any private person.

$ 339. Another inquiry, suggested by the original clause, as well as by the amendinent, is, when a State is and immunities of citizens of the several States.' And if it be a just principle, that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that, in order to the inviolable maintenance of that equality of privileges and immunities, to which the citizens of the Union will be entitled, the National Judiciary ought to preside in all cases, in which one State, or its citizens, are opposed to another State, or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary, that its interpretation should be committed to that tribunal, which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles, on which it is founded. It may be added, that the reasonableness of the agency of the National courts in cases, in which the State tribunals cannot be supposed to be impartial, speaks for it. No man ought certainly to be a judge in his own cause, or in any cause, in respect to which he has the least interest or bias. This principle had no inconsiderable weight in designating the national courts, as the proper tribunals for the determination of controversies between different States and their citizens.

§ 337. And here a most important question of a constitutional nature was formerly litigated ; and that is, 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. It is obvious, that, if a suit could be brought, by any citizen of one State against another State, upon any contract, or matter of property, the State would be constantly subjected to judicial action, to enforce private rights against it in its sovereign capacity. Accordingly, at a very early period, numerous suits were brought against particular States by their creditors, to enforce the payment of debts, or other claims. The question was made, and most elaborately considered, in the celebrated

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