American Institutions And Their Influence

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In order to diminish the number of these suits, it was decided
that in a great many federal causes, the courts of the states
should be empowered 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.;_
Story's Commentaries, p. 646; and "The Organic Law of the United
States," vol. i., p. 35.

]

This was a severe blow upon the independence 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 a
rule 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 was threatened by this mode
of proceeding are less serious than they appear to be. We shall
see hereafter that in America the real strength of the country is
vested in the provincial 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 a right of jurisdiction in cases where it is justly their
own, 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.--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.

Ambassadors 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 ambassador 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.[Footnote:

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 of a constitutional
nature arose, which was, 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. This question was most
elaborately considered in the case of _Chisholme_
v. _Georgia_, and was decided by the majority of the supreme
court in the affirmative. 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. See Story's Commentaries, p. 624,
or in the large edition, Sec. 1677.

]

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.[Footnote:

As, for instance, all cases of piracy.

] 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 constitution 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 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 intentions 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 supremacy;
but it was intended that within its limits it should form one and
the same people.[Footnote:

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.

] 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 constitute one and the same
people within the bounds prescribed by their constitution, 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 constitutes a people, and
that 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 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 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 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 passing
certain laws, which apparently belong to their own particular
sphere of interest. When a state of the Union passes 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, title, or privilege
claimed under the constitution, 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 constitution. 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.[Footnote:

It is perfectly clear, says Mr. Story (Commentaries, p. 503, or
in the large edition, Sec. 1379), that any law which enlarges,
abridges, or in any manner changes the intention of the parties,
resulting from the stipulations in the contract, necessarily
impairs it. He gives in the same place a very long and careful
definition of what is understood by a contract in federal
jurisprudence. A grant made by the state to a private
individual, and accepted by him, is a contract, and cannot be
revoked by any future law. A charter granted by the state to a
company is a contract, and equally binding to the state as to the
grantee. The clause of the constitution here referred to
ensures, therefore, the existence of a great part of acquired
rights, but not of all. Property may legally be held, though it
may not have passed into the possessor's hands by means of a
contract; and its possession is an acquired right, not guarantied
by the federal constitution.

] If a citizen thinks that an obligation of this kind is
impaired by a law passed in his state, he may refuse to obey it,
and may appeal to the federal courts.[Footnote:

A remarkable instance of this is given by Mr. Story (p. 508, or
in the large edition, Sec. 1388). "Dartmouth college in New
Hampshire had been founded by a charter granted to certain
individuals before the American revolution, and its trustees
formed a corporation under this charter. The legislature of New
Hampshire had, without the consent of this corporation, passed an
act changing the organization of the original provincial charter
of the college, and transferring all the rights, privileges, and
franchises, from the old charter trustees to new trustees
appointed under the act. The constitutionality of the act was
contested, and after solemn arguments, it was deliberately held
by the supreme court that the provincial charter was a contract
within the meaning of the constitution (art. i, sect. 10), and
that the amendatory act was utterly void, as impairing the
obligation of that charter. The college was deemed, like other
colleges of private foundation, to be a private eleemosynary
institution, endowed by its charter with a capacity to take
property unconnected with the government. Its funds were
bestowed upon the faith of the charter, and those funds consisted
entirely of private donations. It is true that the uses were in
some sense public, that is, for the general benefit, and not for
the mere benefit of the corporators; but this did not make the
corporation a public corporation. It was a private institution
for general charity. It was not distinguishable in principle
from a private donation, vested in private trustees, for a public
charity, or for a particular purpose of beneficence. And the
state itself, if it had bestowed funds upon a charity of the same
nature, could not resume those funds."

]

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 constitution,
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 passed 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 pass
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 pass 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 passage commented on, as
well as in other passages:--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 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 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
circumstance 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 constitution, 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_, 11_th Peters_, 103; _Briscor
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 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 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 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 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 constitution
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 passed 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.[Footnote:

See chapter vi., on judicial power in America.

]

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 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 afterwards 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.[Footnote: