The Matter and the Party are the first Conditions of the federal Jurisdiction.--Suits in which Amba.s.sadors are engaged.--Suits of the Union.--Of a separate State.--By whom tried.--Causes resulting from the Laws of the Union.--Why judged by the federal Tribunal.--Causes relating to the Non-performance of Contracts tried by the federal Courts.--Consequences of this Arrangement.

After having appointed the means of fixing the competency of the federal courts, the legislators of the Union defined the cases which should come within their jurisdiction. It was established, on the one hand, that certain parties must always be brought before the federal courts, without any regard to the special nature of the cause; and, on the other, that certain causes must always be brought before the same courts, without any regard to the quality of the parties in the suit.

These distinctions were therefore admitted to be the bases of the federal jurisdiction.

Amba.s.sadors are the representatives of nations in a state of amity with the Union, and whatever concerns these personages concerns in some degree the whole Union. When I an amba.s.sador is a party in a suit, that suit 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 alike contrary to the customs of all nations, and to common sense, to appeal to a tribunal representing any other sovereignty than its own; the federal courts, 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 like that of the Union, which can excite the suspicions of neither party, and which offers the most natural as well as the most certain remedy.

When the two parties are not private individuals, but states, an important political consideration is added to the same motive of equity.

The quality of the parties, in this case, gives a national importance to all their disputes; and the most trifling litigation of the states may be said to involve the peace of the whole Union.[146]

The nature of the cause frequently prescribes the rule of competency.

Thus all the questions which concern maritime commerce evidently fall under the cognizance of the federal tribunals.[147] Almost all these questions are connected with 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 peculiar jurisdiction, the national courts can only hear causes which originate in maritime affairs.

The const.i.tution comprises under one head almost all the cases which by their very nature come within the limits of the federal courts. The rule which it lays down is simple, but pregnant with an entire system of ideas, and with a vast mult.i.tude 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 intentions of the legislator in the clearest light:--

The const.i.tution prohibits the states from making laws on the value and circulation of money: if, notwithstanding this prohibition, a state pa.s.ses a law of this kind, with which the interested parties refuse to comply because it is contrary to the const.i.tution, 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 const.i.tution. The Union as it was established in 1789, possesses, it is true, a limited supremacy; but it was intended that within its limits it should form one and the same people.[148] 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 const.i.tute one and the same people within the bounds prescribed by their const.i.tution, 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 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 const.i.tutes a people, and that in relation to all the rest it is a nonent.i.ty. 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 farther 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 const.i.tution 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 princ.i.p.al 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 interest 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 principle of independence within certain limits of their own was adopted in their behalf; and they were concealed from the inspection, and protected from the control, of the central government.

In speaking of the division of the authority, I observed that this latter principle had not always been held sacred, since the states are prevented from pa.s.sing certain laws, which apparently belong to their own particular sphere of interest. When a state of the Union pa.s.ses a law of this kind, the citizens who are injured by its execution can appeal to the federal courts.

[The remark of the author, that 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, which is more strongly expressed in the original, is erroneous and calculated to mislead on a point of some importance. By the grant of power to the courts of the United States to decide certain cases, the powers of the state courts are not suspended, but are exercised concurrently, subject to an appeal to the courts of the United States. But if the decision of the state court is _in favor_ of the right, t.i.tle, or privilege claimed under the const.i.tution, a treaty, or under a law of congress, no appeal lies to the federal courts. The appeal is given only when the decision _is against_ the claimant under the treaty or law. See 3d Cranch, 268. 1 Wheaton, 304.--_American Editor._]

Thus the jurisdiction of the general courts extends not only to all the cases which arise under the laws of the Union, but also to those which arise under laws made by the several states in opposition to the const.i.tution. The states are prohibited from making _ex-post-facto_ laws in criminal cases; and any person condemned by virtue of a law of this kind can appeal to the judicial power of the Union. The states are likewise prohibited from making laws which may have a tendency to impair the obligations of contracts.[149] If a citizen thinks that an obligation of this kind is impaired by a law pa.s.sed in his state, he may refuse to obey it, and may appeal to the federal courts.[150]

This provision appears to me to be the most serious attack upon the independence of the states. The rights awarded to the federal government for purposes of obvious national importance are definite and easily comprehensible; but those with which this last clause invests it are not either clearly appreciable or accurately defined. For there are vast numbers of political laws which influence the obligations of contracts, which may thus furnish an easy pretext for the aggressions of the central authority.

[The fears of the author respecting the danger to the independence of the states of that provision of the const.i.tution, which gives to the federal courts the authority of deciding when a state law impairs the obligation of a contract, are deemed quite unfounded. The citizens of every state have a deep interest in preserving the obligation of the contracts entered into by them in other states: indeed without such a controlling power, "commerce among several states" could not exist.

The existence of this common arbiter is of the last importance to the continuance of the Union itself, for if there were no peaceable means of enforcing the obligations of contracts, independent of all state authority, the states themselves would inevitably come in collision in their efforts to protect their respective citizens from the consequences of the legislation of another state.

M. De Tocqueville's observation, that the rights with which the clause in question invests the federal government "are not clearly appreciable or accurately defined," proceeds upon a mistaken view of the clause itself. It relates to the _obligation_ of a contract, and forbids any act by which that obligation is impaired. To American lawyers, this seems to be as precise and definite as any rule can be made by human language. The distinction between the _right_ to the fruits of a contract, and the time, tribunal, and manner, in which that right is to be enforced, seems very palpable. At all events, since the decision of the supreme court of the United States in those cases in which this clause has been discussed, no difficulty is found, practically, in understanding the exact limits of the prohibition.

The next observation of the author, that "there are vast numbers of political laws which influence the obligations of contracts, which may thus furnish an easy pretext for the aggressions of the central authority," is rather obscure. Is it intended that political laws may be pa.s.sed by the central authority, influencing 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 government.

If it be intended, that the states may find it necessary to pa.s.s 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 pa.s.s 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 pa.s.sage commented on, as well as in other pa.s.sages:--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 const.i.tution. 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 circ.u.mstance 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 questionable whether they did not infringe the provisions of the const.i.tution, and where a disposition to construe those previsions broadly and extensively, would have found very plausible grounds to indulge itself in annulling the state laws referred to. See the cases of _City of New York vs. Miln_, 11th _Peters_, 103; _Briscoe vs. the Bank of the Commonwealth of Kentucky_, ib., 257; _Charles River Bridge vs.

Warren Bridge_, ib., 420.--_American Ed._]

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 Prosecutions of private Individuals in the federal Courts.--Indirect Prosecution in 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 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 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 a.n.a.logous 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 const.i.tution, requires the means of constraining its subjects to discharge their obligations, and of protecting its privileges from their a.s.saults. As far as the direct action of the government on the community is concerned, the const.i.tution 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 const.i.tution, the inference was that the government created by this const.i.tution, and acting within these limits, was invested with all the privileges of a national government, one of the princ.i.p.al 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 a.s.sessment. 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 taxpayer; 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 const.i.tution recognizes the legislative power of the state; 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 had pa.s.sed 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.[151]

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 individuals by its provisions: these private interests are a.s.sumed 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 pa.s.ses a law by which the territory is otherwise disposed of, and that clause of the const.i.tution, 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 t.i.tle of the claimant to be p.r.o.nounced null and void.[152] This, 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 const.i.tutions 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 const.i.tuted 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 const.i.tuted by any people. The supreme court is placed at the head of all known tribunals, both by the nature of its rights and the cla.s.s 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 const.i.tution 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 const.i.tution would be a dead letter: the executive appeals to them for a.s.sistance 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 const.i.tution 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 const.i.tution of the power, but in the const.i.tution of those states which renders its existence necessary.