able opinion, in Chisholm v. The State of Georgia,1 has drawn up a summary of the more general reasoning, on which each of these delegations of power is founded. "It may be asked," said he, "what is the precise sense and latitude, in which the words 'to establish justice,' as here used, are to be understood? The answer to this question will result from the provisions made in the constitution on this head. They are specified in the second section of the third article, where it is ordained, that the judicial power of the United States shall extend to ten descriptions of cases, viz. 1. To all cases arising under this constitution; because the meaning, construction, and operation of a compact ought always to be ascertained by all the parties, not by authority derived only from one of them. 2. To all cases arising under the laws of the United States; because, as such laws, constitutionally made, are obligatory on each state, the measure of obligation and obedience ought not to be decided and fixed by the party, from whom they are due, but by a tribunal deriving authority from both the parties. 3. To all cases arising under treaties made by their authority; because, as treaties are compacts made by, and obligatory on, the whole nation, their operation ought not to be affected, or regulated by the local laws, or courts of a part of the nation. 4. To all cases affecting ambassadors, or other public ministers, and consuls; because, as these are officers of foreign nations, whom this nation are bound to protect, and treat according to the laws of nations, cases affecting them ought only to be cognizable by national authority. 5. To all cases of admiralty and maritime jurisdiction; because, as the seas are the joint property


of nations, whose right and privileges relative thereto, are regulated by the law of nations and treaties, such cases necessarily belong to national jurisdiction. 6. To controversies, to which the United States shall be a party; because in cases, in which the whole people are interested, it would not be equal, or wise, to let any one state decide, and measure out the justice due to others. 7. To controversies between two or more states; because domestic tranquillity requires, that the contentions of states should be peaceably terminated by a common judicatory; and, because, in a free country, justice ought not to depend on the will of either of the litigants. 8. To controversies between a state and citizens of another state; because, in case a state (that is, all the citizens of it) has demands against some citizens of another state, it is better, that she should prosecute their demands in a national court, than in a court of the state, to which those citizens belong; the danger of irritation and crimination, arising from apprehensions and suspicions of partiality, being thereby obviated. Because, in cases, where some citizens of one state have demands against all the citizens of another state, the cause of liberty and the rights of men forbid, that the latter should be the sole judges of the justice due to the latter; and true republican government requires, that free and equal citizens should have free, fair, and equal justice. 9. To controversies between citizens of the same state, claiming lands under grants of different states; because, as the rights of the two states to grant the land are drawn into question, neither of the two states ought to decide the controversy. 10. To controversies between a state, or the citizens thereof, and foreign states, citizens, or subjects; because, as


every nation is responsible for the conduct of its citizens towards other nations, all questions touching the justice due to foreign nations, or people, ought to be ascertained by, and depend on, national authority. Even this cursory view of the judicial powers of the United States leaves the mind strongly impressed with the. importance of them to the preservation of the tranquillity, the equal sovereignty, and the equal rights of the people."

§ 1633. This opinion contains a clear, and, as far as it goes, an exact outline; but it will be necessary to examine separately every portion of the jurisdiction here given, in order that a more full and comprehensive understanding of all the reasons, on which it is founded, may be attained. And I am much mistaken, if such an examination will not display in a more striking light the profound wisdom and policy, with which this part of the constitution was framed.

§ 1634. And first, the judicial power extends to all cases in law and equity, arising under the constitution, the laws, and the treaties of the United States.1 And by cases in this clause we are to understand criminal, as well as civil cases.2

§ 1635. The propriety of the delegation of jurisdiction, in "cases arising under the constitution," rests on the obvious consideration, that there ought always to be some constitutional method of giving effect to


constitutional provisions.1 What, for instance, would avail restrictions on the authority of the state legislatures, without some constitutional mode of enforcing the observance of them?2 The states are by the


constitution prohibited from doing a variety of things; some of which are incompatible with the interests of the Union; others with its peace and safety; others with the principles of good government," The imposition of duties on imported articles, the declaration of war, and the emission of paper money, are examples of each kind. No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain, or correct the infractions of them.1 The power must be either a direct negative on the state laws, or an authority in the national courts to overrule such, as shall manifestly be in contravention to the constitution. The latter course was thought by the convention to be preferable to the former; and it is, without question, by far the most acceptable to the states.2

§ 1636. The same reasoning applies with equal force to "cases arising under the laws of the United States." In fact, the necessity of uniformity in the interpretation of these laws would of itself settle every doubt, that could be raised on the subject. "Thirteen independent: courts of final jurisdiction (says the Federalist) over the same causes is a


Hydra in government, from which nothing but contradiction and confusion can proceed."1

§ 1637. There is still more cogency, if it be possible, in the reasoning, as applied to "cases arising under treaties made, or which shall be made, under the authority of the United States." Without this power, there would be perpetual danger of collision, and even of war, with foreign powers, and an utter incapacity to fulfil the ordinary obligations of treaties.2 The want of this power was (as we have seen3) a most mischievous defect in the confederation; and subjected the country, not only to violations of its plighted faith, but to the gross, and almost proverbial imputation of punic insincerity.4

§ 1638. But, indeed, the whole argument on this subject has been already exhausted in the preceding part of these Commentaries, and therefore it may be dismissed without farther illustrations, although many humiliating proofs are to be found in the records of the confederation.5


§ 1639. It is observable, that the language is, that "the judicial power shall extend 10 all cases in law and equity," arising under the constitution, laws, and treaties of the United States.1 What is to be understood by "cases in law and equity," in this clause? Plainly, cases at the common law, as contradistinguished from cases in equity, according to the known distinction in the jurisprudence of England, which our ancestors brought with them upon their emigration, and with which all the American states were familiarly acquainted.2 Here, then, at least, the constitution of the United States appeals to, and adopts, the common law to the extent of making it a rule in the pursuit of remedial justice in the courts of the Union.3 If the remedy must be in law, or in equity, according to the course of proceedings at the common law, in cases arising under the constitution, laws, and treaties, of the United States, it would seem irresistibly


to follow, that the principles of decision, by which these remedies must be administered, must be derived from the same source. Hitherto, such has been the uniform interpretation and mode of administering justice in civil cases, in the courts of the United States in this class of cases.1

§ 1640. Another inquiry may be, what constitutes a case, within the meaning of this clause. It is clear, that the judicial department is authorized to exercise jurisdiction to the full extent of the constitution, laws, and treaties of the United States, whenever any question respecting, them shall assume such a form, that the judicial power is capable of acting upon it. When it has assumed such a form, it then becomes a case; and then, and not till then, the judicial power attaches to it. A case, then, in the sense of this clause of the constitution, arises, when some subject, touching the constitution, laws, or treaties of the United States, is submitted to the courts by a party, who asserts his rights in the form prescribed by law.2 In other words, a case is a suit in law or equity, instituted according to the regular course of judicial proceedings; and, when it involves any question arising under the constitution, laws, or treaties of the United States, it is within the judicial power confided to the Union.3


§ 1641. Cases arising under the constitution, as contradistinguished from those, arising under the laws of the United States, are such as arise from the powers conferred, or privileges granted, or rights claimed, or protection secured, or prohibitions contained in the constitution itself, independent of any particular statute enactment. Many cases of this sort may easily be enumerated. Thus, if a citizen of one state should be denied the privileges of a citizen in another state;1 if a state should coin money, or make paper money a tender; if a person, tried for a crime against the United States, should be denied a trial by jury, or a trial in the state, where the crime is charged to be committed; if a person, held to labour, or service in one state, under the laws thereof, should escape into another, and there should be a refusal to. deliver him up to the party, to whom such service or labour may be due; in these, and many other cases, the question, to be judicially decided, would be a case arising under the constitution.2 On the other hand, cases arising under the laws of the United States are such, as grow out of the legislation of congress, within the scope of their constitutional authority, whether they constitute the right, or privilege, or claim, or protection, or defence, of the party, in whole or in part, by whom they are asserted.3 The same reasoning applies to cases arising under treaties. Indeed, wherever, in a judi-


cial proceeding, any question arises, touching the validity of a treaty, or statute, or authority, exercised under the United States, or touching the construction of any clause of the constitution, or any statute, or treaty of the United States; or touching the validity of any statute, or authority exercised under any state, on the ground of repugnancy to the constitution, laws, or treaties, of the United States, it has been invariably held to be a case, to which the judicial power of the United States extends.1

§ 1642. It has sometimes been suggested, that a case, to be within the purview of this clause, must be one, in which a party comes into court to demand something conferred on him by the constitution, or a law, or a treaty, of the United States. But this construction is clearly too narrow. A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the constitution, or a law, or a treaty, of the United States, whenever its correct decision depends on the construction of either. This is manifestly the construction given to the clause by congress, by the 25th section of the Judiciary Act, (which was almost contemporaneous with the constitution,) and there is no reason to doubt its solidity or correctness.2 Indeed, the main object of this clause would be defeated by any narrower construction; since the power was conferred for the purpose, in an especial manner, of


producing a uniformity of construction of the constitution, laws, and treaties of the United States.1

§ 1643. This subject was a good deal discussed in a recent case 2 before the Supreme Court, where one of the leading questions was, whether congress could constitutionally confer upon the bank of the United States, (as it has done by the seventh section of its charter,3) general authority to sue, and be sued in the circuit courts of the United States. It was contended, that they could not, because several questions might arise in such suits, which might depend upon. the general principles of law, and not upon any act of congress. It was held, that congress did constitutionally possess the power, and had rightfully conferred it in that charter.

§ 1644. The reasoning, on which this decision was founded, cannot be better expressed, than in the very language, in which it was delivered by Mr. Chief Justice Marshall. "The question," said he, "is whether it (the case) arises under a law of the United States. The appellants contend, that it does not, because several questions may arise in it, which depend on the general principles of the law, not on any act of congress. If this were sufficient to withdraw a case from the jurisdiction of the federal courts, almost every case, although involving the construction of a law, would be withdrawn; and a clause in the constitution, relating to a subject of vital importance to the government, and expressed in the most comprehensive terms, would be construed to mean almost nothing. There is scarcely any case, every part of which depends on the constitution, laws, or treaties of the United


States. The questions, whether the fact, alleged as the foundation of the action, be real or fictitious; whether the conduct of the plaintiff has been such as to entitle him to maintain his action; whether his right is barred; whether he has received satisfaction, or has, in any manner, released his claims; are questions, some or all, of which may occur in almost every case; and if their existence be sufficient to arrest the jurisdiction of the court, words, which seem intended to be as extensive, as the constitution, laws, and treaties of the Union, which seem designed to give the courts of the government the construction of all its acts, so far as they affect the rights of individuals, would be reduced to almost nothing."1

§ 1645. After adverting to the fact, that there is nothing in the constitution to prevent congress giving to inferiour courts original jurisdiction in cases, to which the appellate power of the Supreme Court may extend, he proceeds: "We perceive, then, no ground, on which the proposition can be maintained, that congress is incapable of giving the circuit courts original jurisdiction, in any case, to which the appellate jurisdiction extends. We ask, then, if it can be sufficient to exclude this jurisdiction, that the case involves questions depending on general principles? A cause may depend on several questions of fact and law. Some of these may depend on the construction of a law of the United States; others on principles unconnected with that law. If it be a sufficient foundation for jurisdiction, that the title or right, set up by the party, may be defeated by one construction of the constitution or law of the United


States, and sustained by the opposite construction, provided the facts necessary to support the action be made out, then all the other questions must be decided, as incidental to this, which gives that jurisdiction. Those other questions cannot arrest the proceedings. Under this construction, the judicial power of the Union extends effectively and beneficially to that most important class of cases, which depend on the character of the cause. On the opposite construction, the judicial power never can be extended to a whole case, as expressed by the constitution; but to those parts of cases only, which present the particular question involving the construction of the constitution or the law. We say it never can be extended to the whole case; because, if the circumstance, that other points are involved in it, shall disable congress from authorizing the courts of the Union to take jurisdiction of the original cause, it equally disables congress from authorizing those courts to take jurisdiction of the whole cause, on an appeal; and thus it will be restricted to a single question in that cause. And words obviously intended to secure to those, who claim rights under the constitution, laws, or treaties, of the United States, a trial in the federal courts, will be restricted to the insecure remedy of an appeal upon an insulated point, after it has received that shape, which may be given to it by another tribunal, into which he is forced against his will. We think, then, that when a question, to which the judicial power of the Union is extended by the constitution, forms an ingredient of the original cause, it is in the power of congress to give the circuit courts jurisdiction of that cause, although other questions of fact or of law may be involved in it."


§ 1646. "The case of the bank is, we think, a very strong case of this description. The charter of incorporation not only creates it, but gives it every faculty, which it possesses. The power to acquire rights of any description, to transact business of any description, to make contracts of any description, to sue on those contracts, is given and measured by its charter; and that charter is a law of the United States. This being can acquire no right, make no contract, bring no suit, which is not authorized by a law of the United States. It is not only itself the mere creature of a law, but all its actions, and all its rights are dependent on the same law. Can a being, thus constituted, have a case, which does not arise literally, as well as substantially, under the law? Take the case of a contract, which is put as the strongest against the bank. When a bank sues, the first question, which presents itself, and which lies at the foundation of the cause, is, has this legal entity a right to sue? Has it a right to come, not into this court particularly, but into any court? This depends on a law of the United States. The next question is, has this being a right to make this particular contract? If this question be decided in the negative, the cause is determined against the plaintiff; and this question, too, depends entirely on a law of the United States. These are important questions, and they exist in every possible case. The right to sue, if decided once, is decided for ever; but the power of congress was exercised antecedently to the first decision on that right; and if it was constitutional then, it cannot cease to be so, because the particular question is decided. It may be revived at the will of the party, and most probably would be renewed, were the tribunal to be changed. But the


question, respecting the right to make a particular contract, or to acquire a particular property, or to sue on account of a particular injury, belongs to every particular case, and may be renewed in every case. The question forms an original ingredient in every cause: Whether it be in fact relied on, or not, in the defence, it is still a part of the cause, and may be relied on. The right of the plaintiff to sue cannot depend on the defence, which the defendant may choose to set up. His right to sue is anterior to that defence, and must depend on the state of things, when the action is brought. The questions, which the case involves, then, must determine its character, whether those questions be made in the cause or not. The appellants say, that the case arises on the contract; but the validity of the contract depends on a law of the United States, and the plaintiff is compelled, in every case, to show its validity. The case arises emphatically under the law. The act of congress is its foundation. The contract could never have been made, but under the authority of that act. The act itself is the first ingredient in the case, is its origin, is that, from which every other part arises. That other questions may also arise, as the execution of the contract, or its performance, cannot change the case, or give it any other origin, than the charter of incorporation. The action still originates in, and is sustained by, that charter.

§ 1647. "The clause, giving the bank.a right to sue in the circuit courts of the United States, stands on the same. principle with the acts authorizing officers of the United States, who sue in their own names, to sue in the courts of the United States. The post-master general, for example, cannot sue


under that part of the constitution, which gives jurisdiction to the federal courts, in consequence of the character of the party, nor is he authorized to sue by the judiciary act. He comes into the courts of the Union under the authority of an act of congress, the constitutionality of which can only be sustained by the admission, that his suit is a case arising under a law of the United States. If it be said, that it is such a case, because a law of the United States authorizes the contract, and authorizes the suit, the same reasons exist with respect to a suit brought by the bank. That, too, is such a case; because that suit, too, is itself authorized, and is brought on a contract authorized by a law of the United States. It depends absolutely on that law, and cannot exist a moment without its authority.

§ 1648. "If it be said, that a suit brought by the bank may depend in fact altogether on questions, unconnected with any law of the United States, it is equally true with respect to suits brought by the post-master general. The plea in bar may be payment, if the suit be brought on a bond, or nonassumpsit, if it be brought on an open account, and no other question may arise, than what respects the complete discharge of the demand. Yet the constitutionality of the act, authorizing the post-master general to sue in the courts of the United States, has never been drawn into question. It is sustained singly by an act of congress, standing on that construction of the constitution, which asserts the right of the legislature to give original jurisdiction to the circuit courts, in cases arising under a law of the United States. The clause in the patent law, authorizing suits in the circuit courts, stands, we


think, on the same principle. Such a suit is a case arising under a law of the United States. Yet the defendant may not, at the trial, question the validity of the patent, or make any point, which requires the construction of an act of congress. He may rest his defence exclusively on the fact, that he has not violated the right of the plaintiff. That this fact becomes the sole question made in the cause, cannot oust the jurisdiction of the court, or establish the position: that the case does not arise under a law of the United States.

§ 1649. "It is said, that a clear distinction exists between the party and the cause; that the party may originate under a law, with which the cause has no connexion; and that congress may, with the same propriety, give a naturalized citizen, who is the mere creature of a law, a right to sue in the courts of the United States, as give that right to the bank. This distinction is not denied; and,if the act of congress was a simple act of incorporation, and contained nothing more, it might be entitled to great consideration. But the act does not stop with incorporating the bank. It proceeds to bestow upon the being. it has made, all the faculties and capacities, which that being possesses. Every act of the bank grows out of this law, and is tested by it. To use the language of the constitution, every act of the bank arises out of this law. A naturalized citizen is indeed made a citizen under an act of congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize con-


gress to enlarge or abridge those rights. The simple power of the national legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other fights, extends to him the capacity of suing in the courts of the United States, precisely under the same circumstances, under which a native might sue. He is distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none. There is, then, no resemblance between the act incorporating the bank, and the general naturalization law. Upon the best consideration, we have been able to bestow on this subject, we are of opinion, that the clause in the act of incorporation, enabling the bank to sue in the courts of the United States, is consistent with the constitution, and to be obeyed in all courts."1

§ 1650. Cases may also arise under laws of the United States by implication, as well as by express enactment; so, that due redress may be administered by the judicial power of the United States. It is not unusual for a legislative act to involve consequences, which are not expressed. An officer, for example, is ordered to arrest an individual. It is not necessary, nor is it usual, to say, that he shall not be punished for obeying this order. His security is implied in the order itself. It is no unusual thing for an act of congress to imply, without expressing, this very exemption from state control. The collectors of the revenue, the carriers of the mail, the mint


establishment, and all those institutions, which are public in their nature, are examples in point. It has never been doubted, that all, who are employed in them, are protected, while in the line of their duty; and yet this protection is not expressed in any act of congress. It is incidental to, and is implied in, the several acts, by which those institutions are created; and is secured to the individuals, employed in them, by the judicial power alone; that is, the judicial power is the instrument employed by the government in administering this security.1

§ 1651. It has also been asked, and may again be asked, why the words, "cases in equity," are found in this clause? What equitable causes can grow out of the constitution, laws, and treaties of the United States? To this the general answer of the Federalist2 seems at once clear and satisfactory. "There is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable, rather than of legal jurisdiction, as the distinction is known and established in several of the states. It is the peculiar province, for instance, of a court of equity, to relieve against what are called hard bargains: these are contracts, in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law; yet there may have been some undue, and unconscionable advantage taken of the necessities, or misfortunes of one of the parties, which a


court of equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice, without an equitable, as well as a legal jurisdiction. Agreements to convey lands, claimed under the grants of different states, may afford another example of the necessity of an equitable jurisdiction in the federal courts. This reasoning may not be so palpable in those states, where the formal and technical distinction between taw and Equity is not maintained, as in this state, where it is exemplified by every day's practice."

§ 1652. The next clause, extends the judicial power "to all cases affecting ambassadors, other public ministers, and consuls." The propriety of this delegation of power to the national judiciary will scarcely be questioned by any persons, who have duly reflected upon the subject. There are various grades of public ministers, from ambassadors (which is the highest grade,) down to common resident ministers, whose rank, and diplomatic precedence, and authority, are well known, and well ascertained in the law and usages of nations.1 But whatever may be their relative rank and grade, public ministers of every class are the immediate representatives of their sovereigns. As such representatives, they owe no subjection to any laws, but those of their own


country, any more than. their sovereign; and their actions are not generally deemed subject to the control of the private law of that state, wherein they are appointed to reside. He, that is subject to the coercion of laws, is necessarily dependent on that power, by whom those laws were made. But public ministers ought, in order to perform their duties to their own sovereign, to be independent of every power, except that by which they are sent; and, of consequence, ought not to be subject to the mere municipal law of that nation, wherein they are to exercise their functions.1 The rights, the powers, the duties,


and the privileges of public ministers are, therefore, to be determined, not by any municipal constitutions, but by the law of nature and nations, which is equally obligatory upon all sovereigns, and all states.1 What these rights, powers, duties, and privileges are, are inquiries properly belonging to a treatise on the law of nations, and need not be discussed here.2 But it is obvious, that every question, in which these rights, powers, duties, and privileges are involved, is so intimately connected with the public peace, and policy, and diplomacy of the nation, and touches the dignity and interest of the sovereigns of the ministers concerned so deeply, that it would be unsafe, that they should be submitted to any other, than, the highest judicature of the nation.


§ 1653. It is most fit, that this judicature should, in the first instance, have original jurisdiction of such cases,1 so that, if it should not be exclusive, it might at least be directly resorted to, when the delays of a procrastinated controversy in inferior tribunals might endanger the repose, or the interests of the government.2 I.t is well known, that an arrest of the Russian ambassador in a civil suit in England, in the reign of Queen Anne, was well nigh bringing the two countries into open hostilities; and was stoned for only by measures, which have been deemed, by her own writers, humiliating. On that occasion, an act of parliament was passed, which made it highly penal to arrest any ambassador, or his domestic servants, or to seize or distrain his goods; and this act, elegantly engrossed and illuminated, accompanied by aletter from the queen, was sent by an ambassador extraordinary, to propitiate the offended czar.3 And a statute to the like effect exists in the criminal code established by the first congress, under the constitution of the United States.4

§ 1654. Consuls, indeed, have not in strictness a diplomatic character. They are deemed, as mere commercial agents; and therefore partake of the ordinary character of such agents; and are subject to the municipal laws of the countries, where they re-


side.1 Yet, as they are the public agents of the nation, to which they belong, and are often entrusted with the performance of very delicate functions of state, and as they might be greatly embarrassed by being subject to the ordinary jurisdiction of inferior tribunals, state and national, it was thought highly expedient to extend the original jurisdiction of the Supreme Court to them also.2 The propriety of vesting jurisdiction, in such cases, in some of the national courts seems hardly to have been questioned by the most zealous opponents of the constitution.3 And in cases against ambassadors, and other foreign ministers, and consuls, the jurisdiction has been deemed exclusive.4


§ 1655. It has been made a question, whether this clause, extending jurisdiction to all cases affecting ambassadors, ministers, and consuls, includes cases of indictments found against persons for offering violence to them; contrary to the statute of the United States, punishing such offence. And it has been held, that it does not. Such indictments are mere public prosecutions, to which the United States and the offender only are parties, and which are conducted by the United States, for the purpose of vindicating their own laws, and the law of nations. They are strictly, therefore, cases affecting the United States; and the minister himself, who has been injured by the offence, has no concern in the event of the prosecution, or the costs attending it.1 Indeed, it seems difficult to conceive, how there can be a case affecting an ambassador, in the sense of the constitution, unless he is a party to the suit on record, or is directly affected, and bound by the judgment.2

§ 1656. The language of the constitution is perhaps broad enough to cover cases, where he is not a party; but may yet be affected in interest. This peculiarity in the language has been taken notice of, in a recent case, by the Supreme Court.3 "If a suit


be brought against a foreign minister," (Said Mr. Chief Justice Marshall, in delivering the opinion of the court) "the Supreme Court alone has original jurisdiction, and this is shown on the record. But, suppose a suit to be brought, which affects the interest of a foreign minister, or by which the person of his secretary, or of his servant, is arrested. The minister does not, by the mere arrest of his secretary, or his servant, become a party to this suit; but the actual defendant pleads to the jurisdiction of the court, and asserts his privilege. If the suit affects a foreign minister, it must be dismissed, not because he is a party to it, but because it affects him. The language of the constitution in the two cases is different. This court can take cognizance of all cases, 'affecting' foreign ministers; and, therefore, jurisdiction does not depend on .the party named in the record. But this language changes, when the enumeration proceeds to states. Why this change? The answer is obvious. In the case of foreign ministers, it was intended, for reasons, which all comprehend, to give the national courts jurisdiction over all cases, by which they were in any manner affected. In the case of states, whose immediate, or remote interests were mixed up with a multitude of cases, and who might be affected in an almost infinite variety of ways, it was intended to give jurisdiction in those cases only, to which they were actual parties."

§ 1657. The next clause extends the judicial power "to all cases of admiralty and maritime jurisdiction."

§ 1658. The propriety of this delegation of power seems to have been little questioned at the time of adopting the constitution. "The most bigotted idol-


izers of state authority," said the Federalist,1 "have not thus far shown a disposition to deny the national judiciary the cognizance of maritime causes. These so generally depend on the law of nations, and so commonly affect the rights of foreigners, that they fall within the considerations, which are relative to the public peace." The subject is dismissed with an equally brief notice by Mr. Chief Justice Jay, in the case of Chisholm v. Georgia, in the passage already cited.2 It demands, however, a more enlarged examination, which will clearly demonstrate its utility and importance, as a part of the national power.

§ 1659. It has been remarked by the Federalist, in another place, that the jurisdiction of the court of admiralty, as well as of other courts, is a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits, by which it is circumscribed.3 This remark is equally tree in respect to England and America; to the high court of admiralty sitting in the parent country; and to the vice-admiralty courts sitting in the colonies. At different periods, the jurisdiction has been exercised to a very different extent; and in the colonial courts it seems to have had boundaries different from those prescribed to it in England. It has been exercised to a larger extent in Ireland, than in England; and down to this very day it has a most comprehensive reach in Scotland.4 The jurisdiction claimed by the courts of admiralty, as properly belonging to them, extends to all acts and


torts done upon the high seas, and within the ebb and flow of the sea, and to all maritime contracts, that is, to all contracts touching trade, navigation, or business upon the sea, or the waters of the sea within the ebb and flow of the tide. Some part of this jurisdiction has been matter of heated controversy between the courts of common law, and the high court of admiralty in England, with alternate success and defeat. But much of it has been gradually yielded to the latter, in consideration of its public convenience, if not of its paramount necessity. It is not our design to go into a consideration of these vexed questions, or to attempt any general outline of the disputed boundaries. It will be sufficient in this place to present a brief view of that, which is admitted, and is indisputable.1

§ 1660. The admiralty and maritime jurisdiction, (and the word, "maritime," was doubtless added to guard against any narrow interpretation of the preceding word, "admiralty,") conferred by the constitution, embraces two great classes of cases; one dependent upon locality, and the other upon the nature of the contract. The first respects acts or injuries done upon the high sea, where all nations claim a


common right and common jurisdiction; or acts, or injuries done upon the coast of the sea; or, at farthest, acts and injuries done within the ebb and flow of the tide. The second respects contracts, claims, and services purely maritime, and touching rights and duties appertaining to commerce and navigation. The former is again divisible into two great branches, one embracing captures, and questions of prize arising jure belli; the other embracing acts, torts, and injuries strictly of civil cognizance, independent of belligerent operations.1

§ 1661. By the law of nations the cognizance of all captures, jure belli, or, as it is more familiarly phrased, of all questions of prize, and their incidents, belongs exclusively to the courts of the country, to which the captors belong, and from whom they derive their authority to make the capture. No neutral nation has any right to inquire into, or to decide upon, the validity of such capture, even though it should concern property belonging to its own citizens or subjects, unless its own sovereign or territorial rights are violated; but the sole and exclusive jurisdiction belongs to the courts of the capturing belligerent. And this jurisdiction, by the common consent of nations, is vested exclusively in courts of admiralty, possessing an original, or appellate jurisdiction. The courts of common law are bound to abstain from any decision of questions of this sort, whether they arise directly or indirectly in judgment. The remedy for illegal acts of capture is by the institution of proper prize proceedings in the prize courts of the captors.2 If justice be there denied, the nation itself


becomes responsible to the parties aggrieved; and if every remedy is refused, it then becomes a subject for the consideration of the nation, to which the parties aggrieved belong, which may vindicate their rights, either by a peaceful appeal to negotiation, or a resort to arms.

§ 1662. It is obvious upon the slightest consideration, that cognizance of all questions of prize, made under the authority of the United States, ought to belong exclusively to the national courts. How, otherwise, can the legality of the captures be satisfactorily ascertained, or deliberately vindicated? It seems not only a natural, but a necessary appendage to the power of war, and negotiation with foreign nations. It would otherwise follow, that the peace of the whole nation might be put at hazard at any time by the misconduct of one of its members. It could neither restore upon an illegal capture; nor in many cases afford any adequate redress for the wrong; nor punish the aggressor. It would be powerless and palsied. It could not perform, or compel the performance of the duties required by the law of nations. It would be a sovereign without any solid attribute of sovereignty; and move in vinculis only to betray its imbecility. Even under the confederation, the power to decide upon questions of capture and prize was exclusively conferred in the last resort upon the national court of appeals.1 But like all other powers conferred by that instrument, it was totally disregarded, wherever it interfered with state policy, or with extensive popular interests. We have seen, that the sentences of the


national prize court of appeals were treated, as mere nullities; and were incapable of being enforced, until after the establishment of the present constitution.1 The same reasoning, which conducts us to the conclusion, that the national courts ought to have jurisdiction of this class of admiralty cases, conducts us equally to the conclusion, that, to be effectual for the administration of international justice, it ought to be exclusive. And accordingly it has been constantly held, that this jurisdiction is exclusive in the courts of the United States.2

§ 1663. The other branch of admiralty jurisdiction, dependent upon locality, respects civil acts, torts, and injuries done on the sea, or (in certain cases) on waters of the sea, where the tide ebbs and flows, without amy claim of exercising the rights of war. Such are cases of assaults, and other personal injuries; cases of collision, or running of ships against each other; cases of spoliation and damage, (as they are technically called,) such as illegal seizures, or depredations upon property; cases of illegal dispossession, or withholding possession from the owners of ships, commonly called possessory suits; cases of seizures under municipal authority for supposed breaches of revenue, or other prohibitory laws; and cases of salvage for meritorious services performed in saving property, whether derelict, or wrecked, or captured, or otherwise in imminent hazard from extraordinary perils.3


§ 1664. It is obvious, that this class of cases has, or may have, an intimate relation to the rights and duties of foreigners in navigation and maritime commerce. It may materially affect our intercourse with foreign states; and raise many questions of international law, not merely touching private claims, but national sovereignty, and national reciprocity. Thus, for instance, if a collision should take place at sea between an American and a foreign ship, many important questions of public law might be connected with its just decision; for it is obvious, that it could not be governed by the mere municipal law of either country. So, if a case of recapture, or other salvage service performed to a foreign ship, should occur, it must be decided by the general principles of maritime law, and the doctrines of national reciprocity. Where a recapture is made of a friendly ship from the hands of its enemy, the general doctrine now established is, to restore it upon salvage, if the foreign country, to which it belongs, adopts a reciprocal rule; or to condemn it to the recaptors, if the like rule is adopted in the foreign country. And in other cases of salvage the doctrines of international and maritime law come into full activity, rather than those of any mere municipal code.1 There is, therefore, a peculiar fitness in


appropriating this class of cases to the national tribunals; since they will be more likely to be there decided upon large and comprehensive principles, and to receive a more uniform adjudication; and thus to become more. satisfactory to foreigners.

§ 1665. The remaining class respects contracts, claims, and services purely maritime. Among these are the claims of material-men and others for repairs and outfits of ships belonging to foreign nations, or to other states;1 bottomry bonds for monies lent to ships in foreign ports to relieve their distresses, and enable them to complete their voyages;2 surveys of vessels damaged by perils of the seas;3 pilotage on the high seas;4 and suits for mariners wages.5 These, indeed, often arise in the course of the commerce and navigation of the United States; and seem emphatically to belong, as incidents, to the power to regulate commerce. But they may also affect the commerce and navigation of foreign nations. Repairs may be done, and supplies furnished to foreign ships; money may be lent on foreign bottoms; pilotage and mariners' wages may become due in voyages in foreign employment; and in such cases the general maritime law enables the courts of admiralty to administer a wholesome and prompt justice.6 Indeed, in many of these cases, as the courts of admiralty entert ain suits


in rem, as well as in personam, they are often the only courts, in which an effectual redress can be afforded, especially when it is desirable to enforce a specific maritime lien.1

§ 1666. So that we see, that the admiralty jurisdiction naturally connects itself, on the one hand, with our diplomatic relations and duties to foreign nations, and their subjects; and, on the other hand, with the great interests of navigation and commerce, foreign and domestic.2 There is, then, a peculiar wisdom in giving to the national government a jurisdiction of this sort, which cannot be wielded, except for the general good; and which multiplies the securities for the public peace abroad, and gives to commerce and navigation the most encouraging support at home. It may be added, that, in many of the cases included in these latter classes, the same reasons do not exist, as in cases of prize, for an exclusive jurisdiction; and, therefore, whenever the common law is competent to give a remedy in the state courts, they may retain their accustomed concurrent jurisdiction in the administration of it.3


§ 1667. We have been thus far considering the admiralty and maritime jurisdiction in civil cases only. But it also embraces all public offences, committed on the high seas, and in creeks, havens, basins, and bays within the ebb and flow of the tide, at least in such as are out of the body of any county of a state. In these places the jurisdiction of the courts of admiralty over offences is exclusive; for that of the courts of common law is limited to such offences, as are committed within the body of some county. And on the sea coast, there is an alternate, or divided


jurisdiction of the courts of common law, and admiralty, in places between high and low water mark; the former having jurisdiction when, and as fat as the lids is out, and the latter when, and as far as the tide is in, usque ad filum aquae, or to high water mark.1 This criminal jurisdiction of the admiralty is therefore exclusively vested in the national government; and may be exercised over such crimes and offences, as congress may, from time to time, delegate to the cognisance of the national courts.2 The propriety of vesting this criminal jurisdiction in the national government depends upon the same reasoning, and is established by the same general considerations, as have been already suggested in regard to civil cases. It is essentially connected with the due regulation, and protection of our commerce and navigation on the high seas, and with our rights and duties in regard to foreign nations, and their subjects, in the exercise of common sovereignty on the ocean. The states, as such, are not known in our intercourse with foreign nations, and not recognised as common sovereigns on the ocean. And if they were permitted to exercise criminal or civil jurisdiction thereon, there would be endless embarrassments, arising from the


conflict of their laws, and the most serious dangers of perpetual controversies with foreign nations. In short, the peace of the Union would be constantly put at hazard by acts, over which it had no control; and by assertions of right, which it might wholly disclaim.1

§ 1668. The next clause extends the judicial power "to controversies, to which the United States shall be a party."2 It scarcely seems possible to raise a rea-


sonable doubt, as to the propriety of giving to the national courts jurisdiction of cases, in which the United States are a party.1 It would be a perfect novelty in the history of national jurisprudence, as well as of public law, that a sovereign had no authority to sue in his own courts. Unless this power were given to the United States, the enforcement of all their rights, powers, contracts, and privileges in their sovereign capacity, would be at the mercy of the states. They must be enforced, if at all, in the state tribunals. And there would not only not be any compulsory power over those courts to perform such functions; but there would not be any means of producing uniformity in their decisions. A sovereign without the means of enforcing civil rights, or compelling the performance, either civilly or criminally, of public duties on the part of the citizens, would be a most extraordinary anomaly. It would prostrate the Union at the feet of the states. It would compel the national government to become a supplicant for justice before the judicature of those, who were by other parts of the constitution placed in subordination to it.2

§ 1669. It is observable, that the language used does not confer upon any court cognizance of all controversies, to which the United States shall be a party, so as to justify a suit to be brought against the United States without the consent of congress. And


the language was doubtless thus guardedly introduced, for the purpose of avoiding any such conclusion. It is a known maxim, justified by the general sense and practice of mankind, and recognized in the law of nations, that it is inherent in the nature of sovereignty not to be amesnable to the suit of any private person, without its own consent.1 This exemption is an attribute of sovereignty, belonging to every state in the Union; and was designedly retained by the national government.2 The inconvenience of subjecting the government to perpetual suits, as a matter of right, at the will of any citizen, for any real or supposed claim or grievance, was deemed far greater, than any positive injury, that could be sustained by any citizen by the delay or refusal of justice. Indeed, it was presumed, that it never would be the interest or inclination of a wise government to withhold justice from any citizen. And the difficulties of guarding itself against fraudulent claims, and embarrassing and stale controversies, were believed far to outweigh any mere theoretical advantages, to be derived from any attempt to provide a system for the administration of universal justice.

§ 1670. It may be asked, then, whether the citizens of the United States are wholly destitute of remedy, in case the national government should invade their rights, either by private injustice and injuries, or by public oppression? To this it may be answered, that in a general sense, there is a remedy in both cases. In


regard to public oppressions, the whole structure of the government is so organized, as to afford the means of redress, by enabling the people to remove public functionaries, who abuse their trust, and to substitute others more faithful, and more honest, in their stead. If the oppression be in the exercise of powers clearly constitutional, and the people refuse to interfere in this manner, then indeed, the party must submit to the wrong, as beyond the reach of all human power; for how can the people themselves, in their collective capacity, be compelled to do justice, and to vindicate the rights of those, who are subjected to their sovereign control?1 If the oppression be in the exercise of unconstitutional powers, then the functionaries, who wield them, are amesnable for their injurious acts to the judicial tribunals of the country, at the suit of the oppressed.

§ 1671. As to private injustice and injuries, they may regard either the rights of property, or the rights of contract; for the national government is per se incapable of any merely personal wrong, such as an assault and battery, or other personal violence. In regard to property, the remedy for injuries lies against the immediate perpetrators, who may be sued, and cannot shelter themselves under any imagined immunity of the government from due responsibility.2 If, therefore, any agent of the government shall unjustly invade the property of a citizen under colour of a public authority, he must, like every other violator of the laws, re-


spond in damages. Cases, indeed, may occur, in which he may not always have an adequate redress, without some legislation by congress. As for example, in places ceded to the United States, and over which they have an exclusive jurisdiction, if his real estate is taken without, or against lawful authority. Here he must rely on the justice of congress, or of the executive department The greatest difficulty arises in regard to the contracts of the national government; for as they cannot be sued without their own consent, and as their agents are not responsible upon any such contracts, when lawfully made, the only redress, which can be obtained, must be by the instrumentality of congress, either in providing (as they may) for suits in the common courts of justice to establish such claims by a general law, or by a special act for the relief of the particular party. In each case, however, the redress depends, solely upon the legislative department, and cannot be administered, except through its favour. The remedy is by an appeal to the justice. of the nation in that forum, and not in any court of justice, as matter of right.

§ 1672. It has been sometimes thought, that this is a serious defect in the organization of the judicial department of the national government. It is not, however, an objection to the constitution itself; but it lies, if at all, against congress, for not having provided, (as it is clearly within their constitutional authority to do,) an adequate remedy for all private grievances of this sort, in the courts of the United States. In this respect, there is a marked contrast between the actual right and practice of redress in the national government, as well as in most of the state governments, and the right and practice maintained under the British constitution. In England, if any person has, in point of


property, a just demand upon the king, he may petition him in his court of chancery (by what is called a petition of right) where the chancellor will administer right, theoretically as a matter of grace, and not upon compulsion;1 but in fact, as a matter of constitutional duty. No such judicial proceeding is recognised, as existing in any state of this Union, as matter of constitutional right, to enforce any claim, or debt against a state. In the few cases, in which it exists, it is matter of legislative enactment.2 Congress have never yet acted upon the subject, so as to give judicial redress for any non-fulfilment of contracts by the national government. Cases of the most cruel hardship, and intolerable delay have already occurred, in which meritorious creditors have been reduced to grievous suffering, and sometimes to absolute ruin, by the tardiness of a justice, which has been yielded only after the humble supplications of many years before the legislature. One can scarcely refrain from uniting in the suggestion of a learned commentator, that in this regard the constitutions, both of the national and state governments, stand in need of some reform, to quicken the legislative action in the administration of justice; and, that


some mode ought to be provided, by which a pecuniary right against a state, or against the United States, might be ascertained, and established by the judicial sentence of some court; and when so ascertained and established, the payment might be enforced from the national treasury by an absolute appropriation.1 Surely, it can afford no pleasant source of reflection to an American citizen, proud of his rights and privileges, that in a monarchy the judiciary is clothed with ample powers to give redress to the humblest subject in a matter of private contract, or property against the crown; and, that in a republic there is an utter denial of justice, in such cases, to any citizen through the instrumentality of any judicial process. He may complain; but he cannot compel a hearing. The republic enjoys a despotic sovereignty to act, or refuse, as it may please; and is placed beyond the reach of law. The monarch bows to the law, and is compelled to yield his prerogative at the footstool of justice.2


§ 1673. The next clause extends the judicial power "to controversies between two or more states; between a state and the citizens of another state; between citizens of different states, claiming lands under grants of different states; and between a state or the citizens thereof, and foreign states, citizens, or subjects." Of these, we will speak in their order. And, first, "controversies between two or more states."1 This power seems to be essential to the preservation of the peace of the Union. "History" (says the Federalist,2) 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."3 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.1

§ 1674. 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.2 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.3 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.4

§ 1675. 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, upon the principles of Feudal sovereignty.1 This jurisdiction was often practically asserted, as in the case or the dispute between Massachusetts and New Hampshire, decided by the privy council, in 1679;2 and in the case of the dispute between New Hampshire and New York, in 1764.3 Lord Hardwicke recognised this appellate jurisdiction in the most deliberate manner, in the great case of Penn v. Lord Baltimore.4 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.5 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.6

§ 1676. Next; "controversies between a state and "the citizens of another state." "There are other


sources," says the Federalist,1 "besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the Union. To some of these we have been witnesses in the course of our past experience. It will be readily conjectured, that I allude to the fraudulent laws, which have been passed in too many of the states. And though the proposed 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 federal superintendence and control. It may be esteemed the basis of the Union, that 'the citizens of each state shall be entitled to all the privileges 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 construction 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 is added, "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 has no inconsiderable weight in designating the federal courts, as the proper tribunals for the determination of controversies between different states and their citizens."1

§ 1677. 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 states by their creditors to enforce the payment of debts, or other claims. The question was ,made, and most elaborately considered in the celebrated case of Chisholm v. Georgia;2 and the majority of the Supreme Court held, that the judicial power under the constitution applied equally to suits brought by, and against a state. The learned judges, on that occa-


sion, delivered seriatim opinions, containing the grounds of their respective opinions. It is not my intention to go over these grounds, though they are stated with great ability and legal. learning, and exhibit a very thorough mastery of the whole subject.1 The decision created general alarm among the states; and an amendment was proposed, and ratified by the states,2 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 commenced thereafter; and accordingly all the suits then pending were dismissed, without any further adjudication.3


§ 1678. 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 vigour 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 of 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 judgment or decree rendered in any state court, in a suit brought originally by a state against any private person.1

§ 1679. Another inquiry suggested by the original clause, as well as by the amendment, is, when a state is properly to be deemed a party to a suit, so as to avail itself of, or to exempt itself from, the operation of the jurisdiction conferred by the constitution. To such an inquiry, the proper answer is, that a state, in the sense of the constitution, is a party only, when it is on the record as such; and it sues, or is sued in its political capacity. It is not sufficient, that it may have an interest in a suit between other persons, or that its rights, powers, privileges, or duties, come therein incidentally in question. It must be in terms a plaintiff or defendant, so that the judgment, or decree may be binding upon it, as it is in common suits binding upon parties and privies. The point arose in


an early state of the government, In a suit between private persons, where one party asserted the land in controversy to be in Connecticut and the other in New York; and the court held, that neither state could be considered as a party.1 It has been again discussed in some late cases; and the doctrine now firmly established is, that a state is not a party in the sense of the constitution, unless it appears on the record, as such, either as plaintiff or defendant. It is. not sufficient, that it may have an interest in the cause, or that the parties before the court are sued for acts done, as agents of the state.2 In short, the very immunity of a state from


being made a party, constitutes, or may constitute, a solid ground, why the suit should be maintained against other parties, who act as ha agents, or claim under its title; though otherwise, as the principal, it might be fit; that the state should be made a party upon the common principles of a court of equity.1



§ 1680. The same principle applies to cases, where a state has an interest in a corporation; as when it is a stockholder in an incorporated hank, the corporation is still suable, although the state, as such, is


exempted from any action.1 The state does not, by becoming a corporator, identify itself with the corporation. The bank, in such a case, is not the state, although the state holds an interest in it. Nor will it



make any difference in the case, that the state has the sole interest in the corporation, if in fact it creates other persons corporators.1 An analogous case will be found in the authority, given by an act of congress



to the postmaster-general, to bring suits in his official capacity. In such suits the United States are not understood to be a party, although the suits solely regard their interests. The postmaster-general does


not, in such cases, sue under the clause giving jurisdiction, "in controversies, to which the United States shall be a party;" but under the clause extending the jurisdiction to cases arising under the laws of the United States.1



§ 1681. The reasoning, by which the general doctrine is maintained, is to the following effect. It is a sound principle, that, when a government becomes a partner in any trading company, it divests itself, so far


as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and prerogatives, it descends to a level with those, with whom it associates itself, and takes the character, which belongs to its associates, and to the business, which is transacted. Thus, many states in the Union, which have an interest in banks, are not suable even in their own courts. A state, which establishes a bank, and becomes a stockholder in it, and gives it a capacity to sue and be sued, strips itself of its sovereign character, so far as respects the transactions of the bank, and waives all the privileges of that character. As a member of a corporation, a government never exercises its sovereignty. It acts merely, as a corporator; and exercises no other power in the management of the affairs of the corporation, than are expressly given by the incorporating act. The United States held shares in the old bank of the United States; but the privileges of the government were not imparted by that circumstance to the bank. The United States were not a party to suits, brought by or against the bank, in the sense of the constitution. So, with respect to the present bank, suits brought by or against it are not understood to be brought by or against the United States. The government, by becoming a corporator, lays down its sovereignty, so far as respects the transactions of the corporation; and exercises no power or privilege, which is not derived from the charter.1 The reasoning admits of further illustration. A corporation is itself, in legal contemplation, an artificial person, having a distinct


and independent existence from that of the persons composing it. It is this personal, political, and artificial existence, which gives it the character of a body politic or corporate, in which may be vested peculiar powers and attributes, distinct and different from those belonging to the natural persons composing it.1 Thus, the corporation may be perpetual, although the individuals composing it may in succession die. It may have privileges, and immunities, and functions, which do not, and cannot lawfully belong to individuals. It may exercise franchises, and transact business prohibited to its members, as individuals. The capacity to sue and be sued belongs to every corporation; and, indeed, is a function incident to it, independent of any special grant, because necessary to its existence.2 It sues and is sued, however, not in the names of its members, but in its own name, as a distinct person. It acts, indeed, by and through its members, or other proper functionaries; but still the acts are its own, and not the private acts of such members or functionaries. The members are not only not parties to its suits in any legal sense, but they may sue it, or be sued by it, in any action, exactly as any stranger may sue it, or be sued by it. A state may sue a bank, in which it is a stockholder, just as any other stockholder may sue the same bank. The United States may sue the bank of the United States, and entitle themselves to a judgment for any debt due to them; and they may satisfy the execution, issuing on such a judgment, out of any property of the bank. Now it is plain, that this could not be done, if the state, or the United States, or any other stockholder


were deemed a party to the record. It would be past all legal comprehension, that a party might sue himself, and be on both sides of the controversy. So, that any attempt to deem a state a party to a suit, simply because it has an interest in a suit, or is a stockholder in a corporation on the record, would be to renounce all ordinary doctrines of law applicable to such cases. The framers of the constitution must be presumed, in treating of the judicial department, to have used language in the sense, and with the limitations belonging to it in judicial usage. They must have spoken according to known distinctions, and settled rules of interpretation, incorporated into the very elements of the jurisprudence of every state in the Union.

§ 1682. It may, then, be laid down, as a rule, which admits of no exception, that in all cases under the constitution of the United States, where jurisdiction depends upon. the party, it is the party named on the record. Consequently the amendment above referred to, which restrains the jurisdiction granted by the constitution over suits against states, is of necessity limited to those suits, in which a state is a party on the record. The amendment has its full effect, if the constitution is construed, as it would have been construed, had the jurisdiction never been extended to suits brought against a state by the citizens of another state, or by aliens.1

§ 1683. It has been doubted, whether this amendment extends to cases of admiralty and maritime juris-


diction, where the proceeding is in rein, and not in personam, There, the jurisdiction of the court is founded upon the possession of the thing; and if the state should interpose a claim for the property, it does not act merely in the character of a defendant, but as an actor. Besides; the language of the amendment is, that "the judicial power of the United States shall not be construed to extend to any suit in law or equity." But a suit in the admiralty is not, correctly speaking, a suit in law, or in equity; but is often spoken of in contradistinction to both.1

§ 1684. Next. "Controversies between citizens of different states." Although the necessity of this power may not stand upon grounds quite as strong, as some of the preceding, there are high motives of state policy and public justice, by which it can be clearly vindicated. There are many cases, in which such a power may be indispensable, or in the highest degree expedient, to carry into effect some of the privileges and immunities conferred, and some of the prohibitions upon states expressly declared, in the constitution. For example; it is declared, that the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states. Suppose an attempt is made to evade, or withhold these privileges and immunities, would it not be right to allow the party aggrieved an opportunity of claiming them, in a contest with a citizen of the state, before a tribunal, at once national and impartial?2 Suppose a state should pass a tender law,


or law impairing the obligation of private contracts, or should in the course of its legislation grant unconstitutional preferences to its own citizens, is it not clear, that the jurisdiction to enforce the obligations of the constitution in such cases ought to be confided to the national tribunals? These cases are not purely imaginary. They have actually occurred; and may again occur, under peculiar circumstances, in the course of state legislation.1 What was the fact under the confederation? Each state was obliged to acquiesce in the degree of justice, which another state might choose to yield to its citizens.2 There was not only danger of animosities growing up from this source; but, in point of fact, there did grow up retaliatory legislation, to meet ' such real or imagined grievances.

§ 1685. Nothing can conduce more to general harmony and confidence among all the states, than a consciousness, that controversies are not exclusively to be decided by the state tribunals; but may, at the election of the party, be brought before the national tribunals. Besides; it cannot escape observation, that the judges in different states hold their offices by a very different tenure. Some hold during good behaviour; some for a term of years; some for a single year; some are irremovable, except upon impeachment; and others may be removed upon address of the legislature. Under such circumstances it cannot but be presumed, that there may arise a course of state policy, or state legislation, exceedingly injurious to the interests of the citi-


zens of other states, both as to real and personal property. It would require an uncommon exercise of candour or credulity to affirm, that in cases of this sort all the state tribunals would be wholly without state prejudice, or state feelings; or, that they would be as earnest in resisting the encroachments of state authority upon the just rights, and interests of the citizens of other states, as a tribunal differently constituted, and wholly independent of state authority. And if justice should be as fairly and as firmly administered in the former, as in the latter, still the mischiefs would be most serious, if the public opinion did not indulge such a belief. Justice, in cases of this sort, should not only be above all reproach, but above all suspicion. The sources of state irritations and state jealousies are sufficiently numerous, without leaving open one so copious and constant, as the belief, or the dread of wrong in the administration of state justice.i Besides; if the public confidence should continue to follow the state tribunals, (as in many cases it doubtless will,) the provision will become inert and harmless; for, as the party will have his election of the forum, he will not be inclined to desert the state courts, unless for some sound reason, founded either in the nature of his cause, or in the influence of state prejudices.2 On the other hand, there can be no real danger of injustice to the other side in the decisions of the national tribunals; because the cause must still be decided upon the true principles of the local law, and not by any foreign jurisprudence.3


There is another circumstance of no small importance, as a matter of policy; and that is, the tendency of such a power to increase the confidence and credit between the commercial and agricultural states. No man can be insensible to the value, in promoting credit, of the belief of there being a prompt, efficient, and impartial administration of justice in enforcing contracts.1

§ 1686. Such are some of the reasons, which are supposed to have influenced the convention in delegating jurisdiction to the courts of the United States in cases between citizens of different states. Probably no part of the judicial power of the Union has been of more practical benefit, or has given more lasting satisfaction to the people. There is not a single state, which has not at some time felt the influence of this conservative power; and the general harmony, which exists between the state courts and the national courts, in the concurrent exercise of their jurisdiction in cases between citizens of different states, demonstrates the utility, as well as the safety of the power. Indeed; it is not improbable, that the existence of the power has operated, as a silent, but irresistible check to undue state legislation; at the same time, that it has cherished a mutual respect and confidence between the state and national courts, as honourable, as it has been beneficent.

§ 1687. The next inquiry growing out of this part of the clause is, who are to be deemed citizens of different states within the meaning of it. Are all persons born within a state to be always deemed citizens of that state, notwithstanding any change of domicil; or does their citizenship change with their change of dom-


icil? The answer to this inquiry is equally plain and satisfactory. The constitution having declared, that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states, every person, who is a citizen of one state, and removes into another, with the intention of taking up his residence and inhabitancy there, becomes ipso facto a citizen of the state, where he resides; and he then ceases to be a citizen of the state, from which he has removed his residence. Of course, when he gives up his new residence or domicil, and returns to his native, or other state residence or domicil, he reacquires the character of the latter. What circumstances shall constitute such a change of residence or domicil, is an inquiry, more properly belonging to a treatise upon public or municipal law, than to commentaries upon constitutional law. In general, however, it may be said, that a removal from one state into another, animo manendi, or with a design of becoming an inhabitant, constitutes a change of domicil, and of course a change of citizenship. But a person, who is a native citizen of one state, never ceases to be a citizen thereof, until he has acquired a new citizenship elsewhere. Residence in a foreign country has no operation upon his character, as a citizen, although it may, for purposes of trade and commerce, impress him with the character of the country.1 To change allegiance is one thing; to change inhabitancy is quite another thing. The right and the power are not co-extensive in each case.2 Every citizen of a state is ipso facto a citizen of the United States.3


§ 1688. And a person, Who is a naturalized citizen of the United States, by a like residence in any state in the Union, becomes ipso facto a citizen of that state. So a citizen of a territory of the Union by a like residence acquires the character of the state, where he resides.1 But a naturalized citizen of the United States, or a citizen of a territory, is not a citizen of a state, entitled to sue in the courts of the United States in virtue of that character, while he resides in any such territory, nor until he has acquired a residence or domicil in the particular state.2

§ 1689. A corporation, as such, is not a citizen of a state in the sense of the constitution. But, if all the members of the corporation are citizens, their character will confer jurisdiction; for then it is substantially a suit by citizens suing in their corporate name.3 And a citizen of a state is entitled to sue, as such, notwithstanding he is a trustee for others, or sues in autre droit, as it is technically called; that is, as representative of another. Thus, a citizen may sue, who is a trustee at law, for the benefit of the person entitled to the trust. And an administrator, and executor may sue for the benefit of the estate, which they represent; for in each of these cases it is their personal suit.4 But if citizens, who are parties to a suit, are merely nominally so; as, for instance, if magistrates are officially required to


allow suits to be brought in their names for the use or benefit of a citizen or alien, the latter are deemed the substantial parties entitled to sue.1

§ 1690. Next. "Controversies between citizens of the same state, claiming lands under grants of different states." This clause was not in the first draft of the constitution, but was added without any known objection to its propriety.2 It is the only instance, in which the constitution directly contemplates the cognizance of disputes between citizens of the same state;3 but certainly not the only one, in which they may indirectly upon constitutional questions have the benefit of the judicial power of the Union.4 The Federalist has remarked, 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 itself. 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 has no inconsiderable weight in designating the federal courts, as the proper tribunals for the determination of controversies between different states and their citizens. And it ought to have the same operation in regard to some cases between citizens of the same state. Claimsto land under grants of different states, founded upon adverse pretensions of boundary, are of this description. The courts of neither of the granting states could be expected to be unbiassed. The laws may have even prejudged the question; and tied the courts down to decisions in favour of the grants of the state, to which they belonged.


And where this has not been done, it would be natural, that the judges, as men, should feel a strong predilection for the claims of their own government.1 And, at all events, the providing of a tribunal, having no possible interest on the one side, more than the other, would have a most salutary tendency in quieting the jealousies, and disarming the resentments of the state, whose grant should be held invalid. This jurisdiction attaches not only to grants made by different states, which were never united; but also to grants made by different states, which were originally united under one jurisdiction, if made since the separation, although the origin of the title may be traced back to an antecedent period.2

§ 1691. Next. "Controversies between a state, or the citizens thereof, and foreign states, citizens, or subjects." The Federalist3 has vindicated this provision in the following brief, but powerful manner: "The peace of the whole ought not to be left at the disposal of a part. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts is with reason classed among the just causes of war, it will follow, that the federal judiciary ought to have cognizance of all causes, in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the


security of the public tranquillity. A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations, and those, which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction; the latter for tim of the states. But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign as well as one, which violated the stipulations of a treaty, or the general law of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion, and those of the other. So great a proportion of the controversies, in which foreigners are parties, involve national questions, that it is by far the most safe, and most expedient, to refer all those, in which they are concerned, to the national tribunals."

§ 1692. In addition to these suggestions, it may be remarked, that it is of great national importance to advance public, as well as private credit, in our intercourse with foreign nations and their subjects. Nothing can be more beneficial in this respect, than to create an impartial. tribunal, to which they may have resort upon all occasions, when it may be necessary to ascertain, or enforce their rights.1 Besides; it is not


wholly immaterial, that the law to be administered in cases of foreigners is often very distinct from the mere municipal code of a state, and dependent upon the law merchant, or the more enlarged consideration of international rights and duties, in a case of conflict of the foreign and domestic laws.1 And it may fairly be presumed, that the national tribunals will, from the nature of their ordinary functions, become better acquainted with the general principles, which regulate subjects of this nature, than other, courts, however enlightened, which are rarely required to discuss them.

§ 1693. In regard to controversies between an American and a foreign state, it is obvious, that the suit must, on one side at least, be wholly voluntary. No foreign state can be compelled to become a party, plaintiff or defendant, in any of our tribunals.2 If, therefore, it chooses to consent to the institution of any suit, it is its consent alone, which car give effect to the jurisdiction of the court. It is certainly desirable to furnish some peaceable mode of appeal in cases, where any controversy may exist between an American and a foreign state, sufficiently important to require the grievance to be redressed by any other mode, than through the instrumentality of negotiations.3

§ 1694. The inquiry may here be made, who are to be deemed aliens entitled to sue in the courts of the United States. The general answer is, any person, who is not a citizen of the United States. A foreigner, who is naturalized, is no longer entitled to the character


of an alien.1 And when an alien is the substantial party, it matters not, whether he is a suitor in his own right; or whether he acts, as a trustee, or personal representative; or whether he is compellable by the local law to sue through some official organ.2 A foreign corporation, established in a foreign country, all of whose members are aliens, is entitled to sue in the same manner, that an alien may personally sue in the courts of the Union.3 It is not sufficient to vest the jurisdiction, that an alien is a party. to the suit, unless the other party be a citizen.4 British subjects, born before the American revolution, are to be deemed aliens; and may sue American citizens, born before the revolution, as well as those born, since that period. The revolution severed the ties of allegiance; and made the inhabitants of each country aliens to each other.5 In relation to aliens, however, it should be stated, that they have a right to sue only, while peace exists between their country and our own. For if a war breaks out, and they thereby become alien enemies, their right to sue is suspended, until the return of peace.6


§ 1695. We have now finished our review of the classes of cases, to which the judicial power of the United States extends. The next inquiry naturally presented is, in what mode it is to be exercised, and in what courts it is to be vested. The succeeding clause of the constitution answers this inquiry. It is in the following words. "In all cases affecting ambassadors, other public ministers, and consuls, and those, in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations, as the congress shall make."1

§ 1696. The first remark arising out of this clause is, that, as the judicial power of the United States extends to all the cases enumerated in the constitution, it may extend to .all such cases in any form, in which judicial power may be exercised. It may, therefore, extend to them in the shape of original, or appellate jurisdiction, or both; for there is nothing in the nature of the cases, which binds to the exercise of the one in


preference to the other.1 But it is clear, from the language of the constitution, that, in one form or the other, it is absolutely obligatory upon congress, to vest all the jurisdiction in the national courts, in that class of cases at least, where it has declared, that it shall extend to "all cases."2

§ 1697. In the next place, the jurisdiction, which is by the constitution to be exercised by the Supreme Court in an original form, is very limited, and extends only to cases affecting ambassadors, and other public ministers, and consuls, and cases, where a state is a party. And congress cannot constitutionally confer on it any other, or further original jurisdiction. This is one of the appropriate illustrations of the rule, that the affirmation of a power in particular cases, excludes it in all others. the clause itself would otherwise be wholly inoperative and nugatory. If it had been intended to leave it to the discretion of congress, to apportion the judicial power between the supreme and inferior courts, according to the will of that body, it would have been useless to have proceeded further, than to define the judicial power, and the tribunals, in which it should be vested. Affirmative words often, in their operation, imply a negative of other objects, than those affirmed; and in this case a negative, or exclusive sense, must be given to the words, or they have no operation at all. If the solicitude of the convention, respecting our peace with foreign powers, might induce a provision to be made, that the Supreme Court should have original jurisdiction in cases, which might


be supposed to affect them; yet the clause would have proceeded no further, than to provide for such cases, unless some further restriction upon the powers of congress had been intended. The direction, that the Supreme Court shall have appellate jurisdiction in all cases, with such exceptions, as congress shall make, will be no restriction, unless the words are to be deem ed exclusive of original jurisdiction.1 And accordingly, the doctrine is firmly established, that the Supreme Court cannot constitutionally exercise any original jurisdiction, except in the enumerated cases. If congress should confer it, it would be a mere nullity.2

§ 1698. But although the Supreme Court cannot exercise original jurisdiction in any cases, except those 'specially enumerated, it is certainly competent for congress to vest in any inferior courts of the United States original jurisdiction of all other cases, not thus specially assigned to the Supreme Court; for there is nothing in the constitution, which excludes such inferior courts from the exercise of such original jurisdiction. Original jurisdiction, so far as the constitution gives a rule, is co-extensive with the judicial power; and except, so far as the constitution has made any distribution of it among the courts of the United States, it remains


to be exercised in an original, or appellate form, or both, as congress may in their wisdom deem fit. Now, the constitution has made no distribution, except of the original and appellate jurisdiction of the Supreme Court. It has no where insinuated, that the inferior tribunals shall have no original jurisdiction. It has no where affirmed, that they shall have appellate jurisdiction. Both are left unrestricted and undefined. Of course, as the judicial power is to be vested in the supreme and inferior courts of the Union, both are under the entire control and regulation of congress.1

§ 1699. Indeed, it has been a matter of much question, whether the grant of original jurisdiction to the Supreme Court, in the enumerated cases, ought to be construed to give to that court exclusive original jurisdiction, even of those cases. And it has been contended, that there is nothing in the constitution, which warrants the conclusion, that it was intended to exclude the inferior courts of the Union from a concurrent original jurisdiction.2 The judiciary act of 1789, (ch. 20, 11, 13,) has manifestly proceeded upon the supposition, that the jurisdiction was not exclusive; but, that concurrent original jurisdiction in those cases might be vested by congress in inferior courts.3 It has been strongly intimated, indeed, by the highest tribunal, on more than one occasion, that the original jurisdiction of the Supreme Court in those cases is exclusive;4 but


the question remains to this hour Without any authoritative decision.1

§ 1700. Another question of a very different nature is, whether the Supreme Court can exercise appellate jurisdiction in the class of cases, of which original jurisdiction is delegated to it by the constitution; in other words, whether the original jurisdiction excludes the appellate; and so, e converso, the latter implies a negative of the former. It has been said, that the very distinction taken in the constitution, between original and appellate jurisdiction, presupposes, that where the one can be exercised, the other cannot. For example, since the original jurisdiction extends to cases, where a state is a party, this is the proper form, in which such cases are to be brought before the Supreme Court; and, therefore, a case, where a state is a party, cannot be brought before the court, in the exercise of its appellate jurisdiction; for the affirmative here, as well as in the cases of original jurisdiction, includes a negative of the cases not enumerated.

§ 1701. If the correctness of this reasoning were admitted, it would establish no more, than that the Supreme Court could not exercise appellate jurisdiction in cases, where a state is a party. But it would by no means establish the doctrine, that the judicial power of the United States did not extend, in an appellate form, to such cases. The exercise of appellate jurisdiction is far from being limited, by the terms of the constitution, to the Supreme Court. There can be no


doubt, that congress may create a succession of inferior tribunals, in each of which it may vest appellate, as well as original jurisdiction. This results from the very nature of the delegation of the judicial power in the constitution. It is delegated in the most general terms; and may, therefore, be exercised under the authority of congress, under every variety of form of original and appellate jurisdiction. There is nothing in the instrument, which restrains, or limits the power; and it must, consequently, subsist in the utmost latitude, of which it is in its nature susceptible.1 The result then would be, that, if the appellate jurisdiction over cases, to which a state is a party, could not, according to the terms of the constitution, be exercised by the Supreme Court, it might be exercised exclusively by an inferior tribunal. The soundness of any reasoning, which would lead us to such a conclusion, may well be questioned.2


§ 1702. But the reasoning itself is not well founded. It proceeds upon the ground, that, because the character of the party alone, in some instances, entitles the Supreme Court to maintain original jurisdiction, without any reference to the nature of the case, therefore, the character of the case, which in other instances is made the very foundation of appellate jurisdiction, cannot attach. Now, that is the very point of controversy. It is not only not admitted, but it is solemnly denied. The argument might just as well, and with quite as much force, be pressed in the opposite direction. It might be said, that the appellate jurisdiction is expressly extended by the constitution to all cases in law and equity, arising under the constitution, laws, and treaties of the United States, and, therefore, in no such cases could the Supreme Court exercise original jurisdiction, even though a state were a party.

§ 1703. But this subject has been expounded in so masterly a manner by Mr. Chief Justice Marshall, in delivering the opinion of the Supreme Court in a very celebrated case,1 that it will be more satisfactory to


give the whole argument in his own language. "The constitution" (says he,) "gives the Supreme Court original jurisdiction in certain enumerated cases, and gives it appellate jurisdiction in all others. Among those, in which jurisdiction must be exercised in the appellate form, are cases arising under the constitution and laws of the United States. These provisions of the constitution are equally obligatory, and are to be equally respected. If a state be a party, the jurisdiction of this court is original; if the case arise under the constitution, or a law, the jurisdiction is appellate. But a case, to which a state is a party, may arise under the constitution, or a law of the United States. What rule is applicable to such a case? What, then, becomes the duty of the court? Certainly, we think, so to construe the constitution, as to give effect to both provisions, as far as it is possible to reconcile them, and not to permit their seeming repugnancy to destroy each other. We must endeavour so to construe them, as to preserve the true intent and meaning of the instrument.

§ 1704. "In one description of cases, the jurisdiction of the court is founded entirely on the character of the parties; and the nature of the controversy is not contemplated by the constitution. The character of the parties is every thing, the nature of the case nothing. In the other description of cases, the jurisdiction is founded entirely on the character of the case, and the parties are not contemplated by the constitution. In these, the nature of the case is every thing, the character of the parties nothing. When, then, the constitution declares the jurisdiction in cases, where a state shall be a party, to be original, and in all cases arising under the constitution, or a law, to be appellate, the


conclusion seems irresistible, that its framers designed to include in the first class those cases, in which jurisdiction is given, because a state is a party; and to include in the second those, in which jurisdiction is given, because the case arises under the constitution, or a law. This reasonable construction is rendered necessary by other considerations. That the constitution, or a law of the United States, is involved in a case, and makes a part of it, may appear in the progress of a cause, in which the courts of the Union, but for that circumstance, would have no jurisdiction, and which of consequence could not originate in the Supreme Court. In such a case, the jurisdiction can be exercised only in its appellate form. To deny its exercise in this form is to deny its existence, and would be to construe a clause, dividing the power of the Supreme Court, in such manner, as in a considerable degree to defeat the power itself. All must perceive, that this construction can be justified, only where it is absolutely necessary. We do not think the article under consideration presents that necessity.

§ 1705. "It is observable, that in this distributive clause no negative words are introduced. This observation is not made for the purpose of contending, that the legislature may 'apportion the judicial power between the supreme and inferior courts, according to its will.' That would be, as was said b.y this court in the case of Marbury v. Madison, to render the distributive clause 'mere surplusage,' to make it 'form without substance.' This cannot, therefore, be the true construction of the article. But although the absence of negative words will not authorize the legislature to disregard the distribution of the power previously granted, their absence will justify a sound


construction of the whole article, so as to give every part its intended effect. It is admitted, that 'affirmative words are often, in their operation, negative of other objects, than those affirmed;' and that where 'a negative or exclusive sense, must be given to them, or they have no operation at all,' they must receive that negative, or exclusive sense. But where they have full operation without it; where it would destroy some of the most important objects, for which the power was created; then, we think, affirmative words ought not to be construed negatively.

§ 1706. "The constitution declares, that in cases, where a state is a party, the Supreme Court shall have original jurisdiction; but does not say, that its appellate jurisdiction shall not be exercised in cases, where, from their nature, appellate jurisdiction is given, whether a state be, or be not a party.1 It may be conceded, that where the case is of such a nature, as to admit of its originating in the Supreme Court, it ought to originate there; but where, from its nature, it cannot originate in that court, these words ought not to be so construed, as to require it. There are many cases, in which it would be found extremely difficult, and subversive of the spirit of the constitution, to maintain the construction, that appellate jurisdiction cannot be exercised, where one of the parties might sue, or be sued in this court. The constitution defines the jurisdiction of the Supreme Court, but does not define that of the inferior courts. Can it be affirmed, that a state might not sue the citizen of another state in a Circuit Court? Should the Circuit Court decide for, or against its jurisdiction, should it dismiss the suit, or give judgment


against the state, might not its decision be revised in the Supreme Court? The argument is, that it could not; and thevery clause, which is urged to prove, that the Circuit Court could give no judgment in the case, is also urged to prove, that its judgment is irreversible. A supervising court, whose peculiar province it is to correct the errors of an inferior court, has no power to correct a judgment given without jurisdiction, because, in the same case, that supervising court has original jurisdiction. Had negative words been employed, it would be difficult to give them this construction, if they would admit of any other. But, without negative words, this irrational construction can never be maintained.

§ 1707. "So, too, in the same clause, the jurisdiction of the court is declared to be original, 'in cases affecting ambassadors, other public ministers, and consuls.' There is, perhaps, no part of the article under consideration so much required by national policy, as this; unless it be that part, which extends the judicial power 'to all cases arising under the constitution, laws, and treaties of the United States.' It has been generally held, that the state courts have a concurrent jurisdiction with the federal courts in cases, to which the judicial power is extended, unless the jurisdiction of the federal courts be rendered exclusive by the words of the third article. If the words, 'to all cases,' give exclusive jurisdiction in cases affecting foreign ministers, they may also give exclusive jurisdiction, if such be the will of congress, in cases arising under the constitution, laws, and treaties of the United States. Now, suppose an individual were to sue a foreign minister in a state court, and that court were to maintain its jurisdiction, and render judgment against the minister, could


it be contended, that this court would be incapable of revising such judgment, because the constitution had given it original jurisdiction in the case? If this could be maintained, then a clause inserted for the purpose of excluding the jurisdiction of all other courts, than this, in a particular case, would have the effect of excluding the jurisdiction of this court in that very case, if the suit were to be brought in another court, and that court were to assert jurisdiction. This tribunal, according to the argument, which has been urged, could neither revise the judgment of such other court, nor suspend its proceedings; for a writ of prohibition, or any other similar writ, is in the nature of appellate process.

§ 1708. "Foreign consuls frequently assert, in our prize courts, the claims of their fellow subjects. These suits are maintained by them, as consuls. The appellate power of this court has been frequently exercised in such cases, and has never been questioned. It would be extremely mischievous to withhold its exercise. Yet the consul is a party on the record. The truth is, that, where the words confer only appellate jurisdiction, original jurisdiction is most clearly not given; but where the words admit of appellate jurisdiction, the power to take cognizance of the suit originally does not necessarily negative the power to decide upon it on an appeal, if it may originate in a different court. It is, we think, apparent, that to give this distributive clause the interpretation contended for, to give to its affirmative words a negative operation, in every possible case, would, in some instances, defeat the obvious intention of the article. Such an interpretation would not consist with those rules, which, from time immemorial, have guided courts in their construction of instru-


ments brought under their consideration. It must, therefore, be discarded. Every part of the article must be taken into view, and that construction adopted, which will consist with its words, and promote its general intention. The court may imply a negative from affirmative words, where the implication promotes, not where it defeats, the intention.

§ 1709. "If we apply this principle, the correctness of which we believe will not be controverted, to the distributive clause under consideration, the result, we think, would be this; the original jurisdiction of the Supreme Court in cases, where a state is a party, refers to those cases, in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised in consequence of the character of the party, and an original suit might be instituted in any of the federal courts; not to those cases, in which an original suit might not be instituted in a federal court. Of the last description is every case between a state and its citizens, and, perhaps, every case, in which a state is enforcing its penal laws. In such cases, therefore, the Supreme Court cannot take original jurisdiction. In every other case, that is, in every case, to which the judicial power extends, and in which original jurisdiction is not expressly given, that judicial power shall be exercised in the appellate, and only in the appellate form. The original jurisdiction of this court cannot be enlarged, but its appellate jurisdiction may be exercised in every case, cognizable under the third article of the constitution in the federal courts, in which original jurisdiction cannot be exercised; and the extent of this judicial power is to be measured, not by giving the affirmative words of the distributive clause a negative operation in every possible case, but by giving their


true meaning to the words, which define its extent. The counsel for the defendant in error urge, in opposition to this rule of construction, some dicta of the court, in the case of Marbury v. Madison.1

§ 1710. "It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connexion with the case, in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles, which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated. In the case of Marbury v. Madison, the single question before the court, so far as that case can be applied to this, was, whether the legislature could give this court original jurisdiction in a case, in which the constitution had clearly not given it, and in which no doubt respecting the construction of the article could possibly be raised. The court decided, and we think very properly, that the legislature could not give original jurisdiction in such a case. But, in the reasoning of the court in support of this decision, some expressions are used, which go far beyond it. The counsel for Marbury had insisted on the unlimited discretion of the legislature in the apportionment of the judicial power; and it is against this argument, that the reasoning of the court is directed. They say, that, if such had been the intention of the article, 'it would certainly have been useless to


proceed farther, than to define the judicial power, and the tribunals, in which it should be vested.' The court says, that such a construction would render the clause, dividing the jurisdiction of the court into original and appellate, totally useless; that 'affirmative words are often, in their operation, negative of other objects, than those which are affirmed; and, in this case, (in the case of Marbury v. Madison,) a negative or exclusive sense must be given to them, or they have no operation at all.' 'It cannot be presumed,' adds the court, 'that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it.'

§ 1711. "The whole reasoning of the court proceeds upon the idea, that the affirmative words of the clause, giving one sort of jurisdiction, must imply a negative of any other sort of jurisdiction, because otherwise the words would be totally inoperative; and this reasoning is advanced in a case, to which it was strictly applicable. If in that case original jurisdiction could have been exercised, the clause under consideration would have been entirely useless. Having such cases only in its view, the court lays down a principle, which is generally correct, in terms much broader, than the decision, and not only much broader, than the reasoning, with which that decision is supported, but in some instances contradictory to its principle. The reasoning sustains the negative operation of the words in that case, because otherwise the clause would have no meaning whatever, and because such operation, was necessary to give effect to the intention of the article. The effort now made is, to apply the conclusion, to which the court was conducted by that reasoning in the particular case, to one, in which the words have their


full operation, when understood affirmatively, and in which the negative, or exclusive sense is to be so used, as to defeat some of the great objects of the article. To this construction the court cannot give its assent. The general expressions in the case or Marbury v. Madison must be understood with the limitations, which are given to them in this opinion; limitations, which in no degree affect the decision in that case, or the tenor of its reasoning. The counsel, who closed the argument, put several cases for the purpose of illustration, which he supposed to arise under the constitution, and yet to be, apparently, without the jurisdiction of the court. Were a state to lay a duty on exports, to collect the money and place it in her treasury, could the citizen, who paid it, he asks, maintain a suit in this court against such state, to recover back the money? Perhaps not. Without, however, deciding such supposed case, we may say, that it is entirely unlike that under consideration.

§ 1712. "The citizen, who had paid his money to his state, under a law that is void, is in the same situation with every other person, who has paid money by mistake. The law raises an assumpsit to return the money, and it is upon that assumpsit, that the action is to be maintained. To refuse to comply with this assumpsit may be no more a violation of the constitution, than to refuse to comply with any other; and as the federal courts never had jurisdiction over contracts between a state and its citizens, they may have none over this. But let us so vary the supposed case, as to give it a real resemblance to that under consideration. Suppose a citizen to refuse to pay this export duty, and a suit to be instituted for the purpose of compelling him to pay it. He pleads the constitution of the United. States in bar of the action, notwithstanding which the


court gives judgment against him. This would be a case arising under the constitution, and would be the very case now before the court.

§ 1713. "We are also asked, if a state should confiscate property secured by a treaty, whether the individual could maintain an action for that property? If the property confiscated be debts, our own experience informs us, that the remedy of the creditor against his debtor remains. If it be land, which is secured by a treaty, and afterwards confiscated by a state, the argument does not assume, that this title, thus secured, could be extinguished by an act of confiscation. The injured party, therefore, has his remedy against the occupant of the land for that, which the treaty secures to him; not against the state for money, which is not secured to him.

§ 1714. "The case of a state, which pays off its own debts with paper money, no more resembles this, than do those, to which we have already adverted. The courts have no jurisdiction over the contract. They cannot enforce it, nor judge of its violation. Let it be, that the act discharging the debt is a mere nullity, and that it is still due. Yet. the federal courts have no cognizance of the case. But suppose a state to institute proceedings against an individual, which depended on the validity of an act emitting bills of credit: suppose a state to prosecute one of its citizens for refusing paper money, who should plead the constitution in bar of such prosecution. If his plea should be overruled, and judgment rendered against him, his case would resemble this; and, unless the.jurisdiction of this court might be exercised over it, the constitution would be violated, and the injured party be unable to bring his case before that tribunal, to which the people of the United States


have assigned all such cases. It is most true, that this court will not take jurisdiction, if it should not: but it is equally true, that it must take jurisdiction, if it should. The judiciary cannot, as the legislature may, avoid a measure, because it approaches the confines of the constitution. We cannot pass it by, because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction, which is given, than to usurp that, which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases, arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.

§ 1715. "To escape the operation of these comprehensive words, the counsel for the defendant has mentioned instances, in which the constitution might be violated without giving jurisdiction to this court. These words, therefore, however universal in their expression, must, he contends, be limited, and controlled in their construction by circumstances. One of these instances is, the grant by a state of a patent of nobility. The court, he says, cannot annul this grant. This may be very true; but by no means justifies the inference drawn from it. The article does not extend the judicial power to every violation of the constitution, which may possibly take place; but to 'a case in law or equity,' in which a right, under such law, is asserted


in a court of justice. If the question cannot be brought into a court, then there is no case in law or equity, and no jurisdiction is given by the words of the article. But if, in any controversy depending in a court, the cause should depend on the validity of such a law, that would be a case arising under the constitution, to which the judicial power of the United States would extend. The same observation applies to the other instances, with which the counsel, who opened the cause, has illustrated this argument. Although they show, that there may be violations of the constitution, of which the courts can take no cognizance, they do not show, that an interpretation more restrictive, than the words themselves import, ought to be given to this article. They do not show, that there can be 'a case in law or equity,' arising under the constitution, to which the judicial power does not extend. We think, then, that, as the constitution originally stood, the appellate jurisdiction of this court, in all eases arising under the constitution, laws, or treaties of the United States, was not arrested by the circumstance, that a state was a party."1


§ 1716. The next inquiry is, whether the eleventh amendment to the constitution has effected any change of the jurisdiction, thus confided to the, judicial power of the United States. And here again the most satisfactory answer, which can be given, will be found in the language of the same opinion.1 After quoting the words of the amendment, which are, "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 states by citizens of another state, or by citizens or subjects of any foreign state," the opinion proceeds: "It is a part of our history, that, at the adoption of the constitution, all the states were greatly indebted; and the apprehension, that these debts might be prosecuted in the federal courts, formed a very serious objection to that instrument. Suits were instituted; and the court maintained its jurisdiction. The alarm was general; and, to quiet the appre-


hensions, that were so extensively entertained, this amendment was proposed in Congress, and adopted by the state legislatures. That its motive was not to maintain the sovereignty of a state from the degradation, supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more states, or between a state and a foreign state. The jurisdiction of the court still extends to these cases; and in these a state may still be sued. We must ascribe the amendment, then, to some other cause, than the dignity of a state. There is no difficulty in finding this cause. Those, who were inhibited from commencing a suit against a state, or from prosecuting one, which might be commenced before the adoption of the amendment, were persons, who might probably be its creditors. There was not much reason to fear, that foreign or sister states would be creditors to any considerable amount; and there was reason to retain the jurisdiction of the court in those cases, because it might be essential to the preservation of peace. The amendment, therefore, extended to suits commenced, or prosecuted by individuals, but not to those brought by states.

§ 1717. "The first impression made on the mind by this amendment is, that it was intended for those cases, and for those only, in which some demand against a state is made by an individual in the courts of the Union. If we consider the causes, to which it is to be traced, we are conducted to the same conclusion. A general interest might well be felt in leaving to a state the full power of consulting its convenience in the adjustment of its debts, or of


other claims upon it; but no interest could be felt in so changing the relations between the whole and its parts, as to strip the government of the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation.

§ 1718. "The words of the amendment appear to the court to justify and require this construction. The judicial power is not 'to extend to any suit in law or equity, commenced, or prosecuted against one of the United States by citizens of another state, &c.'

§ 1719. "What is a suit? We understand it to be the prosecution, or pursuit, of some claim, demand, or request. In law language, it is the prosecution of some demand in a court of justice. The remedy for every species of wrong is, says Judge Blackstone, 'the being put in possession of that right whereof the party injured is deprived.' 'The instruments, whereby this remedy is obtained, are a diversity of suits and actions, which are defined by the Mirror to be "the lawful demand of one's right;" or, as Braeton and Fleta express it, in the words of Justinian, jus prosequendi in judicio, quod alicui debetur. Blackstone then proceeds to describe every species of remedy by suit; and they are all cases, where the party suing claims to obtain something, to which he has a right.

§ 1720. "To commence a suit is to demand something by the institution of process in a court of justice; and to prosecute the suit, is, according to the common acceptation of language, to continue that demand. By a suit commenced by an individual against a state, we should understand process sued out by that individual against the state, for the purpose of establishing some claim against it by the judgment of


a court; and the prosecution of that suit is its continuance. Whatever may be the stages of its progress, the actor is still the same. Suits had been commenced in the Supreme Court against some of the states before this amendment was introduced into Congress, and others might be commenced, before it should be adopted by the state legislatures, and might be depending at the time of its adoption. The object of the amendment was, not only to prevent the commencement of future suits, but to arrest the prosecution of those, which might be commenced, when this article should form a part of the constitution. It therefore embraces both objects; and its meaning is, that the judicial power shall not be construed to extend to any suit, which may be commenced, or which, if already commenced, may be prosecuted against a state by the citizen of another state. If a suit, brought in one court, and carried by legal process to a supervising court, be a continuation of the same suit, then this suit is not commenced nor prosecuted against a state. It is clearly in its commencement the suit of a state against an individual, which suit is transferred to this court, not for the purpose of asserting any claim against the state, but 'for the purpose of asserting a constitutional defence against a claim made by a state.

§ 1794. "A writ of error is defined to be a commission, by which the judges of one court are authorized to examine a record, upon which a judgment was given in another court, and, on such examination, to affirm, or reverse the same according to law. If, says my Lord Coke, by the writ of error the plaintiff may recover, or be restored to any thing, it may be released by the name of an action. In Bacon's


Abridgment, tit. Error, L. it is laid down, that 'where by a writ of error the plaintiff shall recover, or be restored to any personal thing, as debt, damage, or the like, a release of all actions personal is a good plea. And when land is to be recovered, or restored in a writ of error, a release of actions real is a good bar. But where by a writ of error the plaintiff shall not be restored to any personal or real thing, a release of all actions real or personal is no bar.' And for this we have the authority of Lord Coke, both in his Commentary on Littleton and in his Reports. A writ of error, then, is in the nature of a suit or action, when it is to restore the party, who obtains it to the possession of any thing, which is withheld from him, not when its operation is entirely defensive. This rule will apply to writs of error from the Courts of the United States, as well as to those writs in England.

§ 1722. "Under the judiciary act, the effect of a writ of error is simply to bring the record into Court, and submit the judgment of the inferior tribunal to re-examination. It does not in any manner act upon the parties; it acts only on the record. It removes the record into the supervising tribunal. Where, then, a state obtains a judgment against an individual, and the court, rendering such judgment, overrules a defence, set up under the constitution, or laws of the United States, the transfer of this record into the Supreme Court, for the sole purpose of inquiring, whether the judgment violates the constitution or laws of the United States, can, with no propriety, we think, be denominated a suit commenced, or prosecuted against the state, whose judgment is so far re-examined. Nothing is demanded from the state. No claim against it,


of any description, is asserted or prosecuted. The party is not to be restored to the possession of any thing. Essentially, it is an appeal on a single point; and the defendant, who appeals from a judgment rendered against him, is never said to commence, or prosecute a suit against the plaintiff, who has obtained the judgment. The writ of error is given, rather than an appeal, because it is the more usual mode of removing suits at common law; and because, perhaps, it is more technically proper, where a single point of law, and not the whole case, is to be re-examined. But an appeal might be given, and might be so regulated, as to effect every purpose of a writ of error. The mode of removal is form, and not substance. Whether it be by writ of error, or appeal, no claim is asserted, no demand is made by the original defendant. He only asserts the constitutional right, to have his defence examined by that tribunal, whose province it is to construe the constitution and laws of the Union.

§ 1723. "The only part of the proceeding, which is in any manner personal, is the citation. And what is the citation? It is simply notice to the opposite party, that the record is transferred into another court, where he may appear, or decline to appear, as his judgment, or inclination may determine. As the party, who has obtained a judgment is out of court, and may, therefore, not know, that his cause is removed, common justice requires, that notice of the fact should be given him. But this notice is not a suit, nor has it the effect of process. If the party does not choose to appear, he cannot be brought into court, nor is his failure to appear considered as a default. Judgment cannot be given against him for his non-appearance; but the judgment is to be re-examined, and reversed, or affirmed, in like


manner, as if the party had appeared, and argued his cause.

§ 1724. "The point of view, in which this writ of error, with its citation, has been considered uniformly in the courts of the Union, has been well illustrated by a reference to the course of this court in suits instituted by the United States. The universally received opinion is, that no suit can be commenced, or prosecuted against the United States; that the judiciary act does not authorize such suits. Yet writs of error, accompanied with citations, have uniformly issued for the removal of judgments in favour of the United States into a superior court, where they have, like those in favour of an individual, been re-examined, and affirmed, or reversed. It has never been suggested, that such writ of error was a suit against the United States, and, therefore, not within the jurisdiction of the appellate court. It is, then, the opinion of the court, that the defendant, who removes a judgment, rendered against him by a state court, into this court, for the purpose of re-examining the question, whether that judgment be in violation of the constitution and laws of the United States, does not commence, or prosecute a suit against the state, whatever may be its opinion, where the effect of the writ may be to restore the party to the possession of a thing, which he demands."1

§ 1725. Another inquiry, touching the appellate jurisdiction of the Supreme Court, of a still more general character, is, whether it extends only to the inferior courts of the Union, constituted by congress, or reaches to cases decided in the state courts. This question


has been made on several occasions; and has been most deliberately weighed, and solemnly decided in the Supreme Court. The reasoning of the court in Martin v. Hunter,1 (which was the first time, in which the question was directly presented for judgment,) will be here given, as it has been affirmed on more recent discussions.2

§ 1726. "This leads us," says the court "to the consideration of the great question, as to the nature and extent of the appellate jurisdiction of the United States. We have already seen, that appellate jurisdiction is given by the constitution to the Supreme Court in all cases, where it has not original jurisdiction; subject, however, to such exceptions and regulations, as congress may prescribe. It is, therefore, capable of embracing every case enumerated in the constitution, which is not exclusively to be decided by way of original jurisdiction. But the exercise of appellate jurisdiction is far from being limited by the terms of the constitution to the Supreme Court. There can be no doubt, that congress may create a succession of inferior tribunals, in each of which it may vest appellate, as well as original jurisdiction. The judicial power is delegated by the constitution in the most general terms, and may, therefore, be exercised by congress, under every variety of form of appellate, or original jurisdiction. And as there is nothing in the constitution, which restrains, or limits this power, it must, therefore, in all these cases, subsist in the utmost latitude, of which, in its own nature, it is susceptible.

§ 1797. "As, then, by the terms of the constitution,


the appellate jurisdiction is not limited, as to the Supreme Court, and as to this court it may be exercised in all other cases, than those, of which it has original cognizance, what is there to restrain its exercise over state tribunals in the enumerated cases? The appellate power is not limited by the terms of the third article to any particular courts. The words are, 'the judicial power (which includes appellate power,) shall extend to all cases,' &c., and ' in all other cases before mentioned, the Supreme Court shall have appellate jurisdiction.' It is the case, then, and not the court, that gives the jurisdiction. If the judicial power extends to the case, it will be in vain to search in the letter of the constitution for any qualification, as to the tribunal, where it depends. It is incumbent, then, upon those, who assert such a qualification, to show its existence by necessary implication. If the text be clear and distinct, no restriction upon its plain and obvious import ought to be admitted, unless the inference be irresistible.

§ 1728. "If the constitution meant to limit the appellate jurisdiction to eases pending in the courts of the United States, it would necessarily follow, that the jurisdiction of these courts would, in all the cases enumerated in the constitution, be exclusive of state tribunals. How, otherwise, could the jurisdiction extend to all cases, arising under the constitution, laws, and treaties of the United States, or, to all cases of admiralty and maritime jurisdiction? If some of these cases might be entertained by state tribunals, and no appellate jurisdiction, as to them, should exist, then the appellate power would not extend to all, but to some, cases. If state tribunals might exercise concurrent jurisdiction over all, or some of the other