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
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1. 2 Dill R. 419, 475; S. C. 2 Peters's Cond. R. 635,671.

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
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1. In the first draft of the constitution the clause was, "the jurisdiction of the Supreme Court shall extend to all cases arising under the laws passed by the legislature of the United States;" the other words, "the constitution," and "treaties," were afterwards added without any apparent objection. Journal of Convention, 226, 297, 298.
2. 1 Tucker's Black. Comm. App. 420, 421; Cohen, v. Virginia, 6 Wheat. It. 399; Rawle on Const. ch. 24, p. 226.

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
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1. Cohens v. Virginia, 6 Wheat. R. 415; Id. 402 to 404, ante, Vol. l. § 266, 267.
2. Mr. Madison, in the Virginia Resolutions and Report, January, 1800, says, that "cases arising under the constitution," in the sense of this clause, are of two descriptions. One of these comprehends the cases growing out of the restrictions on the legislative power of the states, such as emitting bills of credit, making any thing but gold and silver a tender in payment of debts. "Should this prohibition be violated," says he, "and a suit between citizens of the same stale be the consequence, this would be a case arising under the constitution before the judicial power of the United States. A second description comprehends suits between citizens and foreigners, or citizens of different states, to be decided according to the state or foreign laws; but submitted by the constitution to the judicial power of the United States; the judicial power being, in several instances, extended beyond the legislative power of the United States." [p. 28.] Mr. Tucker. in his Commentaries uses the following language: "The judicial power of the federal government extends to all cases in law and equity arising under the constitution. Now, the powers granted to the federal government, or prohibited to the states, being all enumerated, the cases arising under the constitution can only be such, as arise out of some enumerated power delegated to the federal government, or prohibited to those of the several states. These general words include what is comprehended in the next clause, viz. cases arising under the laws of the United States. But, as contradistinguished from that clause, it comprehends some cases afterwards enumerated; for example, controversies between two or more states; between a state and foreign states; between citizens of the same state claiming lands under grants of different states; all which may arise under the constitution, and not under any law of the United States. Many other cases might be enumerated, which would fall strictly under this clause, and no other. As, ifs citizen of one state should be denied the privileges of a citizen in another; so, if a person held to service or labour in one state, should escape into another and obtain protection there, as a free man; so, if a state should coin money, and declare the same to be a legal tender in payment of debt, the validity of such a tender, if made, would fail within the meaning of this clause. So also, if a state should, without the consent of congress, lay any duty upon goods imported, the question, as to the validity of such an act, if disputed, would come within the meaning of this clause and not of any other.

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
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In all these cases equitable circumstances may arise, the cognizance of which, as well as such, as were strictly legal, would belong to the federal judiciary, in virtue of this clause." 1 Tuck. Black. Comm. App. 418, 419. See also 2 Elliot's Debates, 380, 383, 390, 400, 418, 419.
1. See 3 Elliot's Debates, 142.
2. The Federalist, No. 80. See also Id. No. 22; 2 Elliot's Debates, 389, 390. -- The reasonableness of this extent of the judicial power is very much considered by Mr. Chief Justice Marshall, in delivering the opinion of the court, in Cohens v. Virginia, (6 Wheat. R. 413 to 423,) from which some extracts will be made, in considering the appellate jurisdiction of the Supreme Court, in a future page.

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
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1. The Federalist, No. 80; Id. No. 22; Id. No. 15; 2 Elliot's Debates, 389, 590: 3 Elliot's Debates, 142, 143. -- In the Convention, which framed the constitution, the following resolution was unanimously adopted. "That the jurisdiction of the national judiciary shall extend to cases arising under laws passed by the general legislature, and to such other questions, as involve the national peace and harmony." Journ. of Convention, 188, 189.
2. The Federalist, No. 22 No. 80; 2 Elliot's Debates, 390, 400; The Federalist, No. 80. -- The remarks of The Federalist, No. 80, on this subject will be found very instructive, and should be perused by every constitutional lawyer.
3. Ante, Vol. I. § 266, 267, 483, 484; 3 Elliot's Debates, 148, 280.
4. 3 Elliot's Debates, 281.
5. Ante, Vol. I. § 266, 267, 483, 484; The Federalist, No. 22, No. 80; 1 Tuck. Black. Comm. App. 418, 419, 420. -- This clause was opposed with great earnestness in some of the state conventions, and particularly in that of Virginia, as alarming and dangerous to the rights and

§ 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
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liberties of the states, since it would bring every thing within the vortex of the national jurisdiction. It was defended with great ability and conclusiveness of reasoning, as indispensable to the existence of the national government, and perfectly consistent with the safety and prerogatives of the states. See 2 Elliot's Debates, 380 to 427; 3 Elliot's Debates, 125, 128, 129, 133, 143; Id. 280; 4 Elliot's Debates; (Martin's Letter,) 45.
1. Bee 3 Elliot's Debates, 127, 198, 129, 130, 133, 141, 143, 154.
2. See Robinson v. Campbell, 3 Wheat. R. 212, 221, 223.
3. It is a curious fact, that while the adoption of the common law, as the basis of the national jurisprudence, has been, in later times, the subject of such deep political alarm with some statesmen, the non-existence of it, as such a basis, was originally pressed by some of the ablest opponents of the constitution, as a principal defect. Mr. George Mason of Virginia urged that the want of a clause in the constitution, securing to the people the enjoyment of the common law, was a fatal defect. 2 American Museum, 534; ante, Vol. 1. p. 275. Yet the whole argument in the celebrated Resolutions of Virginia of January, 1800, supposes, that the adoption of it would have been a most mischievous provision.

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
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l. See Cox & Dick v. United States, 6 Peters's Sup. R. 172, 203; Robinson v. Campbell, 3 Wheat. R. 212. See Madison's Report, 7 January, 1800, p. 28, 29; Chisholm's Execulors v. Georgia, 2 Dall. R. 419, 433, 437; S. C. 2 Cond. R. 635, 640, 642, per Iredell J.; The Federalist, No. 80, No. 83.
2. Osborn v. The Bank of the United States, 9 Wheat. R. 819. See Mr. Marshall's Speech on the case of Jonathan Robbins; Bee's Adm. R. 277.
3. See 1 Tuck. Black. Comm. App. 418, 419, 420; Madison's Virginia

§ 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-
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Resolutions and Report, January, 1800, p. 28; Marbury v. Madison, 1 Cranch's R. 137, 173, 174; Owing v. Norwood, 5 Cranch, R. 344. See 2 Elliot's Debates, 4 18, 419.
1. The Federalist, No. 80.
2. 1 Tucker's Black. Comm. App. 418, 419; ante, Vol. II. §
3. Marbury v. Madison, 1 Cranch, 137, 173, 174.

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
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1. See Judiciary Act of 1789, ch. 20, § 25; Martin v. Hunter, 1 Wheat. R. 304; Cohens v. Virginia, 6 Wheat. R. 264; Osborn v. Bank of the United States, 9 Wheat. R. 738; Gibbons v. Ogden, 9 Wheat. R. 1.
2. Cohens v. Virginia, 6 Wheat. R. 378, 379, 391, 392. See also 1 Tuck. Black. Comm. App. 419, 420; Judiciary Actor 1789, ch. 20.

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 case² 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
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1. The Federalist, No. 80; Cohens v. Virginia, 6 Wheat. R. 391, 392.
2. Osborn v. Bank of the United States, 9 Wheat R. 738, 819, 820.
3. Act of 1816, ch, 44, § 7.

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
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1. Osborn v. Bank of the United States, 9 Wheat. R. 819, 820.

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
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1. Osborn v. Bank of the United States, 9 Wheat R. 821 to 828. See also Bank of the United States v. Georgia, 9 Wheat. R. 904.

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
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1. Osborn v. Bank of United States, 9 Wheat. R. 865, 866; Id. 847, 848.
2. The Federalist, No. 80. See also 1 Tuck. Black. Comm. App. 418, 419; 2 Elliot's Debates, 389, 390.

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
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1. Three classes are usually distinguished in diplomacy; 1. Ambassadors, who are the highest order, who are considered as personally representing their sovereigns; 2. Envoys Extraordinary, and ministers plenipotentiary; 3. Ministers resident, and ministers charges d'affaires. Mere common charges d'affaires, are deemed of still lower rank. Dr. Lieber's Encyclopedia Americana, art. Ministers, Foreign. Vattel, B. 4, ch. 6, § 71 to 74.

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,
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1. 1 Black. Comm. 253; Vattel, B. 4, ch. 7, § 80, 81, 92, 99, 101; l Kent's Comm. Lect. 2, p. 37, 38. (2d edition, p. 38, 39.) -- In the cue of the Schooner Exchange v. M'Faddon, (7 Cranch, 116, 138,) the Supreme Court state the grounds of the immunity of foreign ministers, in a very clear manner, leaving the important question, whether that immunity can be forfeited by misconduct, open to future decision. "A second case," (says Mr. Chief Justice Marshall, in delivering the opinion of the court,) "standing on the same principles with the first, is the immunity, which all civilized nations allow to foreign ministers. Whatever may be the principle, on which his immunity is established, whether we consider him, as in the place of the sovereign he represents, or by a political fiction suppose him to be extra-territorial, and, therefore, in point of law, not within the jurisdiction of the sovereign, at whose court he resides; still, the immunity itself is granted by the governing power of the nation, to which the minister is deputed. This fiction of ex-territoriality could not be erected, and supported against the will of the sovereignof the territory. He is supposed to assent to it.

"This consent is not expressed. It is true, that, in some countries, and in this, among others, a special law is enacted for. the case. But the law obviously proceeds on the idea of prescribing the punishment of an act previously unlawful, not of granting to a foreign minister a privilege, which he would not otherwise possess.

"The assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction, which are admitted to attach to foreign ministers, is implied from the considerations, that, without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the ob-

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.
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jects of his mission. A sovereign, committing the interests of his nation with a foreign power to the care of a person, whom he has selected for that purpose, cannot intend to subject his minister in any degree to that power; and, therefore, a consent to receive him implies a consent, that he shall possess those privileges, which his principal intended he should retain--privileges which are essential to the dignity of his sovereign, and to the duties he is bound to perform.

"In what cases a minister, by infracting the laws of the country, in which he resides, may subject himself to other punishment, than will be inflicted by his own sovereign, is an inquiry foreign to the present purpose. If his crimes be such, as to render him amenable to the local jurisdiction, it must be, because they forfeit the privileges annexed to his character; and the minister, by violating the conditions, under which he was received, as the representative of a foreign sovereign, has surrendered the immunities granted on those conditions; or, according to the true meaning of the original assent, has ceased to be entitled to them." See also I Black. Comm. 254, and Christian's note, (4); Vattel, B. 4, ch. 7, § 92, 99, 101; Id. ch. 8, § 113, 114, 115, 116; Id. ch. 9, § 117, 119, 120, 121, 122, 123, 124; 1 Kent's Comm. Lect 2.
1. Ex parte Cabrera, 1 Wash. Cir. R. 232.
2. Vattel discusses the subject of the rights, privileges, and immunities of foreign ambassadors very much at large, in B. 4, ch. 7, of his Treatise on the Law of Nations.

§ 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 It 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-
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1. The Federalist, No. 80. See also 2 Elliot's Debates, 390, 400; The Federalist, No. 80; Marbury v. Madison, 1 Cranch, R. 137, 174, 175.
2. 1 Tuckers Black. Comm. App. 361; Ex parte Cabrera, 1 Wash. Cirt. R. 232.
3. 1 Black. Comm. 255, 256; 4 Id. 70.
4. Act of 1790, ch. 36, § 26, 27; 1 Kent's Comm. Lect. 9, p. 170, 171, (2d edition, p. 182, 183.)

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
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1. See Vattel, B. 2, ch. 2, § 34; Id. B. 4, ch. 6, § 75; Wicquefort, B. 1, § 5; 1 Kent's Comm. Lect. 2, p. 40, 43, [2d edition, p. 41 to 44;] 2 Brown's Adm. Law, ch. 14, p. 503; Viveash v. Becket, 3 Maule & Sel. R. 284; Rawle on Const. ch. 24, p. 224 to 226.
2. The Federalist, No. 80; Cohens, v. Virginia, 6 Wheat. R. 396; 1 Kent's Comm. Lect. 9. p. 44, (2d edition, p. 45;) Rawle on Const. ch. 24, p. 224 to 226.
3. 2 Elliot's Debates, 383, 384, 418; 3 Id. 281; 1 Tuckers Black. Comm. App. 183. -- Under the confederation no power existed in the national government, to punish any person for the violation of the rights of ambassadors, and other foreign ministers, and consuls. Congress, in November, 1781, recommended to the legislatures of the states, to pass laws punishing infractions of the law of Nations, committed by violating safe conducts, or passports granted by congress; by acts of hostility against persons in amity with the United States; by infractions of the immunities of ambassadors; by infractions of treaties, or conventions; and to erect a tribunal, or to vest one, already existing, with power to decide on offences against the law of nations; and to authorize suits for damages by the party injured, and for compensation to the United States, for damages sustained by them, from an injury done to a foreign power by a citizen. This, like other recommendations, was silently disregarded, or openly refused. See Journal of Congress, 23d of Nov. 1781, p. 934. Sergeant on Const. Introduction, p. 16, (2d edition.)
4. Rawle on Constitution, ch. 91, p. 903; Id. ch. 94, p. 229, 223;

§ 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
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1 Kent's Comm. Lect, 2, p. 44, (2d edition, p. 45); hi. Lect. 15, p. 294, 295, (2d edition, p. 314, 315); Commonwealth v. Kosloff, 5 Serg. & Rawle, 545; Hail v. Young, 3 Pick. R. 80; United States v. Ortega, 11 Wheat. R. 467, and Mr. Wheaton's note, Id. 469 to 475; Manhardt v. Soderstrom, l Binn. R. 138; United States v. Ravara, 2 Doll. R. 297; Cohens v. Virginia, 6 Wheat. II. 396, 397; Osborn v. Bank of United States, 9 Wheat. R. 820, 821; Chisholm v. Georgia, 2 Doll. R. 431, per Iredell, J.
1. United States v. Ortega, II Wheat. R. 467. See also Osborn v. Bank of United States, 9 Wheat. R. 854, 855.
2. Ibid.
3. 4 Ibid.

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
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1. The Federalist, No. 80. See also 2 Elliot's Debates, 383, 384, 390, 418, 419.
2. 2 Dall. R. 475; ante Vol. 111. § 1633.
3. The Federalist, No. 37. See 1 Kent's Comm. Lect. 17.
4. See De Lovto v. Boit, 2 Gallison's R. 398; 1 Kent's Comm. Lect. 17, passim.

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
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1. Upon this subject the learned reader is referred to Sergeant on Const. Law, ch. 21, and the authorities there cited; to Gordon's Digest, art. 763 to 792; to 1 Kent's Comm. Lect. 17, passim; 2 Brown's Adm. Law, ch. 4, 6, 19. Mr. Sergeant, in his introduction to the second edition of his very valuable work on Constitutional Law, (p. 3, 4, and note,) seems to suppose, that the admiralty commission of the governor of New-Hampshire, referred to in De Lovio v. Boit, 2 Gallison's R. 470, 471, might be an extension of the ordinary commissions of the colonial admiralty judges, It is believed, that he is mistaken in this supposition. In Stokes's History of the Colonies there is a commission similar in its main clauses; and Mr. Stokes says, that it was the usual form of the commissions. Stokes's Hist. of Colon. ch. 4, p. 166. See also Mr. Wheaton's Notes to the case of United States v. Bevans, 3 Wheat. R. 336, 357, 361, 365.

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
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1. See Martin v. Hunter, 1 Wheat. R. 335.
2. Le Caux v. Eden, Doug. R. 594; Lindo v. Rodney, Doug. R. 613, note; L'Invincible, 1 Wheat. R. 238; The Estrella, 4 Wheat. R. 298;

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
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Bingham v. Cabot, 3 Dall. 19; La Amistad de Rues, 5 Wheat. R. 385; 1 Kent's Comm. Lect. 17, p. 334, (2 edition, p. 356.)
1. Confederation, Art. 9.

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
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1. See Penhallow v. Doane, 3 DaIl. R. 52; Jennings v. Carson, 4 Cranch 2; ante, Vol. I, §
2. See Martin v. Hunter, 1 Wheat. R. 345, 337; United States v. Bevans, 3 Wheat. R. 387; Houston v. Moore, 5 Wheat. It. 49; Ogden v. Saunders, 12 Wheat. R. 278; 1 Kent's Comm. Lect. 17, p. 330 to 337, [2 edition, p. 353 to 360.]
3. See La Vengeanee, 3 Dall. R. 297; Martin v. Hunter, 1 Wheat. R. 335, 337; The Sarah, 8 Wheat. R. 391, 394; McDonough v. Dannery,

§ 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
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3 Dall. R. 189; The Blaireau, 2 Cranch, 249; The Amiable Nancy, 3 Wheat. R. 546; The General Smith, 4 Wheat R. 438; Rose v. Himeley, 4 Cranch, 241; Manro v. Almeida, 10 Wheat R. 473; The Apollon, 9 Wheat. R. 369; The Marianna Flora, 11 Wheat. R. 1, 42; The Fabius, 2 Rob. R. 245; The Thames, 5 Rob. R. 345; The St. Juan Baptista, 5 Rob. R. 33, 40, 41; Abbott on Shipping, P. 2, ch. 4, note to American edition, 1829, p. 139. 138; The Dundee, 1 Hagg. Adm. R. 109; The Ruckers, 4 Rob. R. 73; 1 Kent's Comm. Lect. 17, p. 342 to 352, [2 edition, p. 365 to 377 4 The Agincourt, l Hagg. R. 271.
1. The Santa Cruz, 1 Rob. R. 50; The San Francisco, 1 Edw. p. 179; The Adeline, 9 Cranch, 344; 2 Wheat. R. App. 40 to 45; Abbott on Shipping, (Amer. edit. 1823,) P. 3, ch. 10, p. 397, 417, 422.

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
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1. The St. Jago de Cuba, 9 Wheat. R. 409, 416; The Aurora, l Wheat. R. 105.
2. The Aurora, 1 Wheat. R. 96.
3. Janney v. Columbia Insurance Company, 10 Wheat. R. 412, 415, 418.
4. The Anne, 1 Mason's R. 508.
5. The Thomas Jefferson, 10 Wheat.R. 428.
6. The Two Friends, 1 Rob. R. 271; The Helena, 4 Rob. R. 3; The Jacob, 4 Rob. R. 245; The Gratitudine, 3 Rob. R. 240; The Favourite, 2 Rob. R. 232; Abbott on Shipping, P. 2, ch. 3, p. 115, Story's note; Id. P. 4, ch. 4; The Aurora, 1 Wheat R. 96.

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
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1. Manro v. Almeida, 10 Wheat R. 473; The Merino, 9 Wheat. R. 391, 416, 417; The General Smith, 4 Wheat. R. 438; The Thomas Jefferson, 10 Wheat. R. 428; Sheppard v. Taylor, 5 Peters's Sup. R. 675; 1 Kent's Comm. Lect 17, p. 352 to 354, (2 edition, p. 378 to 381;) 2 Brown's Adm. Law, ch. 71.
2. "The admiralty jurisdiction," said the Supreme Court in a celebrated case, "embraces all questions of prize and salvage, in the correct adjudication of which foreign nations are deeply interested. It embraces also maritime torts, contracts, and offences, in which the principles of the law and comity of nations often form an essential inquiry. All these cases, then, enter into the national policy, affect the national rights, and may compromit the national sovereignty." Martin v. Hunter, 1 Wheat. R. 335.
3. Mr. Chancellor Kent and Mr. Rawle seem to think,* that the admiralty jurisdiction, given by the constitution, is in all cases necessarily

* 1 Kant's Comm. Lect. 17, p. 351, (2 edit. p. 377;) Rawle on the Const. ch. 21, p. 202. See also 1 Tucker's Black. Comm. App 181, 182; 2 Elliot's Deb. 390; 10 Wheat. R. 418.

§ 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
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exclusive. But it is believed, that this opinion is founded in a mistake. It is exclusive in all matters of prize, for the reason, that at the common law this jurisdiction is vested in the courts of admiralty, to the exclusion of the courts of common law. But in cases, where the jurisdiction of the courts of common law and the admiralty are concurrent, (as in cases of possessory suits, mariners, wages, and marine torts,) there is nothing in the constitution, necessarily leading to the conclusion, that the jurisdiction was intended to be exclusive; and there is as little ground, upon general reasoning, to contend for it. The reasonable interpretation of the constitution would seem to be, that it conferred on the national judiciary the admiralty and maritime jurisdiction, exactly according to the nature and extent and modifications, in which it existed in the jurisprudence of the common law. Where the jurisdiction was exclusive, it remained so; where it was concurrent, it remained so. Hence, the states could have no right to create courts of admiralty, as such, or to confer on their own courts, the cognizance of such cases, as were exclusively cognizable in admiralty courts. But the states might well retain and exercise the jurisdiction in cases, of which the cognizance was previously concurrent in the courts of common law. This latter class of cases can be no more deemed cases of admiralty and maritime jurisdiction, than cases of common law jurisdiction. The judiciary act, of 1789, ch. 20, § 9, has manifestly proceeded upon this supposition; for, while it has conferred on the District Courts, "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction," it has, at the same time, saved "to the suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." We shall, hereafter, have occasion to consider more at large, in what cases there is a concurrent jurisdiction in the national and state courts.

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
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1. Constable's Cue, 5 Co. R. 106; 2 Instit. 51; 1 Black. Comm. 110; Hale in Harg. Law Tracts, pt. 1, ch. 3; Id. ch. 4, p. 10, 12, pt. 2, ch. 7, p. 88; 2 Hale, P.C.p. 13, &c.; 64 Corn. Dig. Navigation, A. & B.; Id. Admiralty, E. J.; United States v. Grush, 5 Mason's R. 290; l Kent's Comm. Lect 17, p. 337 to 342, [2d edition, p. 360 to 365;] United States v. Bevans, 3 Wheat. R. 336; Id. 357; Mr. Wheaton's notes, 357, 361, 365, 366, 368, 369; Beeve's case, 2 Leach. Cir. Cas. 1093, (4th edition;) Ryan & Russ. Cas. 243; 4 Tucker's Black. Comm. App. 7.
2. United States v. Bevans, 3 Wheat. R. 356, 386 to 389; 4 Elliot's Deb. 290, 1291; 1 Kent's Comm. Lect. 16, p. 319, 320, (2d edition, p. 339, 340;) Lect. 17, p. 337, (2d edition, p. 360.)

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-
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1. It has been made a question, whether the admiralty jurisdiction can be exercised within the territories of the United States by the judges of the territorial courts, appointed under the territorial governments, as they are appointed for a limited term only, and not during good behaviour. The decision has been in favour of the jurisdiction, upon the ground, (already suggested,) that congress have the exclusive power to regulate such territories, as they may choose; and they may confer on the territorial government such legislative powers, is they may choose. The courts appointed in such territories, are not constitutional courts, in which the judicial powers conferred by constitution on the general government can be deposited. They are merely legislative courts; and the jurisdiction, with which they are invested, is not a part of the judicial power, defined in the third article of the constitution. The American Insurance Company v. Canter, 1 Peters's Sup. R. 511.
2. Mr. Tucker, distinguishes between the word "cases," used in the preceding clauses, and the word "controversies" here used. The former he deems to include all suits, criminal as well as civil. The latter, as including such only, as are of a civil nature. As here applied, controversies "seem" (says he) "particularly appropriated to such disputes, as might arise between the United States, and any one or more states, respecting territorial or fiscal matters; or between the United States and their debtors, contractors, and agents. This construction is confirmed by the application of the word in the ensuing clauses, where it evidently refers to disputes of a civil nature only, such, for example, as may arise between two or more states, or between citizens of different states, or between a state and the citizens of another state, &c." l Tucker's Black. Comm. App. 420, 421. Mr. Justice Iredell, in his opinion in Chisholm v. Georgia, 2 Dull. R. 419, 431, 432, gives the same construction to the word "controversies," confining it to such as are of a civil nature.

In the original draft of the constitution, this clause, "controversies to which the United States shall be a party," was omitted. It was add

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
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ed afterwards without any apparent objection. Journal of Convention, 226, 297, 298.
1. The Federalist, No. 80; 3 Elliot's Debates, 280, 281. See also 2 Elliot's Deb. 380, 383, 384, 389, 390, 400, 404.
2. Mr. Sergeant, in his Introduction to his work on Constitutional Law, has abundantly shown the mischief of such a want of power under the confederation. See Serg. Const. Law, Introd. p. 15 to 18.

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
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1. The Federalist, No. 81. See Chisholm v. Georgia, 2 Dall. R. 419, 478, S. C.; 2 Peters's Cond. R. 635, 674; 1 Black. Comm. 241 to 243; Cohens v. Virginia, 6 Wheat. R. 380; Id. 411, 412.
2. Mr. Locke strenuously contends for this exemption of the sovereign from judicial amesnability; and in this, he does but follow out the doctrines of Puffendorf, and other writers on the law of nations. See Locke on Government, Pt. 2, § 205; Puffendorf's Law of Nature and Nations, B. 8, ch. 10; Vattel, B. 1, ch. 4, § 49, 50.

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-
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1. See on this subject, 1 Black. Comm. 243 to 245.
2. See Hoyt v. Gelston, 3 Wheat. R. 246; Osborn v. Bank of United States, 9 Wheat. R. 738; Marbury v. Madison, 1 Cranch. 137, 164, 165; 3 Black. Comm. 255.

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
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1. 1 Black. Comm. 243; Comyn's Dig. Prerogative, D. 78 to D. 85; The Banker's cue, 1 Freeman R. 331; 8. e. 5 Mod. 29; 11 Harg. State Trials, 137; Skinner's R. 601; 2 Dall. R. 437 to 445; S.C. 2 Peters's Cond. It. 642 to 646. But see Macbeath v. Haldimand, I. T. R. 172, 176, 177.
2. A suit against the state has been allowed in Virginia* and Maryland, and some other states by statute. But it is intimated, that, even when judgment has passed in favour of the claimant, he has sometimes received no substantial benefit from the judgment, from the omission of the legislature to provide suitable funds, or to make suitable appropriations to discharge the debt. 1 Tucker's Black. Comm. App. 352.

* 1 Tucker's Black. Comm. 243, note (5); Chisholm v. Georgia, is, 2 Dall. R. 419, 434, 435.

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
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1. 1 Tuck. Black. Comm. App. 352.
2. Mr. Chief Justice Jay, in his opinion in the great case of Chisholm's Executors v. Georgia, 3 Dall. R. 414, 474, (S. C. 2 Peters's Cond. R. 635, 674,) takes a distinction between the case of the suability of a state, and the suability of the United States, by a citizen under the constitution, affirming the former, and denying the latter. His reason is thus stated. "In all cases of actions against states, or individual citizens, the national courts are supported in all their legal and constitutional proceedings and judgments, by the arm of the executive powers of the United States. But in cases of actions against the United States, there is no power, which the courts can call to their aid. From this distinction, important conclusions ere deducible; and they place the case of a state, and the ease of the United States, in a very different view." In the case of Macbeath v. Haldimand, (1 Term. Reports, 172.) Lord Mansfield seemed to intimate great doubts, whether, a petition of right would lie in England in any case, except of a private debt due from the crown; and not for debts contracted under the authority of parliament. Before the revolution, he said, "all the public supplies were given to the king, who, in

§ 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
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his individual capacity contracted for all expenses. lie alone had the disposition of the public money. But since that time, the supplies had been appropriated by parliament to particular purposes; and now, whoever advances money for the public service, trusts to the faith of parliament." Id. 176. But see Buller J.'s opinion, in the same case. See also Mr. Justice Iredell's opinion in Chisholm v. Georgia, 2 Dall. R. 437 to 445.
1. In the first draft of the constitution, the words were to controversies "between two or more states, except such as shall regard territory or jurisdiction." The exception was subsequently abandoned. Journal of Convention, p. 226.
2. The Federalist, No. 80.
3. See also 1 Kent's Comm. Lect. 14, p. 977, 278, (2d edition, p. 295, 296;) 1 Robertson's Charles V. p. 183, 395, 397.

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
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1. See Sergeant on Const Introduction, p. 11 to 16; 2 Elliot's Deb. 418.
2. Confederation, art. 9.
3. 2 Elliot's Deb. 418; Sergeant on Const. Introduction, p. 11, 19, 13, 15, 16; 5 Journ. of Congress, 456; 7 Journ. of Congress, 364; 8 Journ. of Congress, 83; 9 Journ. of Congress, 64; 12 Journ. of Congress, 10, 52, 219, 220, 230.
4. New York v. Connecticut, 4 Dall. R. 3, Fowler v. Lindsey, 3 Dall. R. 411; 3 Elliot's Deb. 281; 2 Elliot's Deb. 418.

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
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1. 1 Back. Comm. 231.
2. Ante, Vol. 1, § 80; 1 Chalm. Annals, 489, 490; 1 Hutch. Hist. 319.
3. Sergeant on Const. in Introduction, p. 5, 61 3 Belknap's Hist. of New Hampshire, 296, App. 10.
4. 1 Vesey's R. 444.
5. The Federalist, No. :19. See also the remarks of Mr. Chief Justice Jay, ante, Vol. 1, § 488, note; 2 Elliot's Debates, 418,
6. The Federalist, No. 39, 80.

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,
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1. The Federalist, No. 80.

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-
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1. See also the remarks of Mr. Chief Justice Jay, in Chisholm v. Georgia, 2 Dall. R. 474, cited in the note, ante Vol. i. § 488.
2. 2 Dall. R. 419; 8. C, 2 Peters's Cond. R. 635. See also 1 Kent's Comm, Lect. 14, p. 278, (2d edit. p. 296, 297;) Cohens v. Virginia 6 Wheat. R. 381.

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
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1. Although the controversy is now ended, the opinions deserve a most attentive perusal, from their very able exposition of many constitutional principles. It is remarkable, that the Federalist (No. 81,) seems to have taken the opposite ground from the majority of the judges, holding, that the states were not suable, but might themselves sue under this clause of the constitution.* I confess it seems to me difficult to reconcile this position with the reasoning on the same subject in the preceding number, (80,) a part of which is quoted in the text, (Sec. 1676.) Mr. Justice Iredell, who dissented from the other judges of the Supreme Court, in Chisholm v. Georgia, put his opinion mainly on the ground, that it was a suit for a debt, for which no action lay, at least compulsively, at the common law against the crown, but at most, only a petition of right; and in America, whoever contracts with a state trusts to the good faith of the state. 
2. In 1793; 3 Dall. R. 378.
3. Hollingsworth v. Virginia, 3 Dall. R. 378. -- The history and reasons of this amendment are succinctly stated by Mr. Chief Justice Marshall, in Cohens v. Virginia, 6 Wheat. R. 406.

* See also 9 Elliot's Deb. 390, 391,401, 405.

§ 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
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1. Cohens v. Virginia, 6 Wheat. R. 264.

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
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1. Fowler v. Lindsey, 3 Dall. R. 411; 8. C. 1 Peters's Cond. R. 190, 191; State of New York v. State of Connecticut, 4 Dall. R. 1, 3 to 6; United States v. Peters, 5 Cranch's R. 115, 139; 1 Kent's Comm. Lect. 15, p. 302, (2d edit. p. 323.)
2. The reasoning of Mr. Chief Justice Marshall in Osborn v. Bank of United States, (9 Wheat. R. 846, &c.) on this point is very full and satisfactory, and deserves to be cited at large. It is only necessary to premise, that the suit wan a bill in equity brought by the Bank of the United State against Osborn and others, as state officers, for an injunction and other relief, they having levied a tax of one hundred thousand dollars on certain property of the bank, under a state law of the state of Ohio. "We proceed now," said the Chief Justice, "to the 6th point made by the appellants, which is, that if any case is made in the bill proper for the interference of court of chancery it is against the state of Ohio, in which case the circuit court could not exercise jurisdiction.

"The bill is brought, it is said, for the purpose of protecting the bank in the exercise of a franchise, granted by a law of tile United States, which franchise file state of Ohio asserts a right to invade, and is about to invade. It prays the aid of the court to restrain the officer of the state from executing the law. It is, then, a controversy between the bank and the state of Ohio. The interest of the state is direct and immediate, not consequential. The process of the court, though not directed against the state by name, acts directly upon it, by restraining its officers. The process, therefore, is substantially, though not in form. against the late, and tile court ought not to proceed without making the suite a party. If this cannot be done, the court cannot take jurisdiction of the cause.

"The full pressure of this argument is felt, and the difficulties it presents are acknowledged. The direct interest of the state in the suit, as

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
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brought, is admitted; and, had it been in the power of the bank to make it a party, perhaps no decree ought to have been pronounced in the cause, until the state was before the court. But this was not in the power of the bank. The eleventh amendment of the constitution has exempted a state from the suits of citizens of other states, or aliens; and the very difficult question is to be decided, whether, in such a case the court may act upon the agents employed by the state, and on the property in their hands.

"Before we try this question by the constitution, it tony not be time misapplied, if we pause for a moment, and reflect on the relative situation of the Union with its members should the objection prevail.

"A denial of jurisdiction forbids all inquiry into the nature of the case. It applies to cases perfectly clear in themselves; to cases, where the government is in the exercise of its best established and most essential powers, as well as to those, which may be deemed questionable. It asserts, that the agents of a state, alleging the authority of a law void in itself, because repugnant to the constitution, may arrest the execution of any law of the United States. It maintains, that, if a state shall impose a fine or penalty on any person employed in the execution of any law of the United States, it may levy that fine or penalty by a ministerial officer, without the sanction even of its own courts; and that the individual, though he perceives the approaching danger, can obtain no protection from the judicial department of the government. The carrier of the mail, the collector of the revenue, the marshal of a district, the recruiting officer, tony all be inhibited, under ruinous penalties, from the performance of their respective duties; the warrant of a ministerial officer may authorize the collection of these penalties; and the person thus obstructed in the performance of his duty, may indeed resort to his action for damages, after the infliction of the injury, but cannot avail himself of the preventive justice of the nation to protect him in the performance of his duties. Each member of the Union is capable, at its will, of

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1. Osborn v. Bank of United States, 9 Wheat. R. 738, 838 to 845; Id. 846; The Governor of Georgia v. Madruzo, 1 Peters's Sup. R. 110, 111, 122.

§ 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
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attacking the nation, of arresting its progress at every step, of acting vigorously and effectually in the execution of its designs, while the nation stands naked, stripped of its defensive armour, and incapable of shielding its agent, or executing its laws, otherwise than by proceedings which ere to take place alter the mischief in perpetrated and which must often be ineffectual, from the inability of the agents to make compensation.

"These are said to be extreme cases; but the case at bar, had it been put by way of illustration in argument, might have been termed an extreme case; and, if a penalty on a revenue off car for performing his duty, be more obviously wrong. than a penalty on the bank, it is a difference in degree, not in principle. Public sentiment would be more shocked by the infliction of a penalty on a public officer for time performance of his duty, than by the infliction of this penalty on a bank, which, while carrying on the fiscal operations of the government, is also transacting its own business. But, in both cases, the officer levying the penalty acts under a void authority, and the power to restrain him is denied as positively in the one, as in the other.

"The distinction between any extreme case, and that which has actually occurred, if, indeed, any difference of principle can be supposed to exist between them, disappears, when considering the question of jurisdiction; for, if the courts of the United States cannot rightfully protect the agents, who execute every law authorized by the constitution, from the direct action of state agents in the collection of penalties, they cannot rightfully protect those, who execute any law.

"The question, then, is, whether the constitution of time United States has provided a tribunal, which cult peacefully and rightfully protect those, who are employed in carrying, into execution the laws of the Union, from the attempts of a particular state to resist the execution of those laws.

"The state of Ohio denies tile existence of this power; and contends, that no preventive proceedings whatever, or proceedings against the very property, which may have been seized by time agent of a state, can be sustained against such agent, because they would be substantially against the state itself, in violation of the 11th amendment of the constitution.

"That the courts of the Union cannot entertain a suit brought against a state by an alien, or the citizen of another States is not to be

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
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controverted. Is a suit, brought against an individual, for any cause whatever, a suit against a state, in the sense of the constitution?

"The 11th amendment is the limitation of a power supposed to be granted in the original instrument; and to understand accurately the extent of the limitation, it seems proper to define the power that is limited. The words of the constitution, so far as they respect this question, are, 'The judicial power shall extend to controversies between two or more states, between a state end citizens of another state, and between a state and foreign states, citizens, or subjects.' A subsequent clause distributes the power previously granted, and assigns to the Supreme Court original jurisdiction in those cases, in which 'a state shall be a party.' The words of the 11th amendment 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 United States, by citizens of another state, or by citizens or subjects of a foreign state.'

"The bank of the United States contends, that in all cases, in which jurisdiction depends on the character of the party, reference is made to the party on the record, not to one, who may be interested, but is not shown by the record to be a party. The appellants admit, that. the jurisdiction of the court is not ousted by any incidental or consequential interest, which a state may have in the decision to be made, but is to be considered as a party, where the decision acts directly and immediately upon the state, through its officers.

"If this question were to be determined on the authority of English decisions, it is believed, that no case can be adduced, where any person has been considered as a party, who is not made so in the record. But the court will not review those decisions, because it is thought a question growing out of the constitution of the United States, requires rather an attentive consideration of the words of that instrument, than of the decisions of analogous questions by the courts of any other country.

"Do the provisions, then, of the American constitution, respecting controversies, to which a state may be a party, extend, on a fair construction of that instrument, to cases in which the state is not a party on the record? The first in the enumeration, is a controversy between two or more states. There are not many questions, in which a state would

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1. United States Bank v. Planters' Bank of Georgia, 9 Wheat R. 904; Bank of Com'th of Kentucky v. Wister, 3 Peters's Sup. R. 318.

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
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be supposed to take a deeper or more immediate interest, than in those, which decide on the extent of her territory. Yet the constitution, not considering. the state as a party to such controversies, if not plaintiff or defendant on the record, has expressly given jurisdiction in those between citizens claiming lands under grants of different states. If each state, in consequence of the influence of a decision on her boundary, had been considered, by the framers of the constitution, as a party to that controversy, the express grant of jurisdiction would have been useless. The grant of it certainly proves, that tire constitution does not consider the state as a party in such a case. Jurisdiction is expressly granted, in those cases only, where citizens of the same state claim lands under grants of different states. If the claimants be citizens of different states, the court takes jurisdiction for that reason. Still, the right of the state to grant is the essential point in dispute; and in that point the state is deeply interested. If that interest converts the state into a party, there is an end of the cause; and the constitution will be construed to forbid the circuit courts to take cognizance of questions, to which it was thought necessary expressly to extend their jurisdiction, even when the controversy arose between citizens of the same state.

"We are aware, that the application of these cases may be denied, because the title of the State comes on incidentally, and the appellants admit the jurisdiction of the court, where its judgment does not act directly upon the property or interests of the state; but we deemed it of some importance to show, that the framers of the constitution contemplated the distinction between cases, in which a state was interested, and those, in which it was a party, and made no provision for a case of interest, without being a party on the record. In cases, where a state is a party on the record, the question of jurisdiction is decided by inspection. If jurisdiction depend, not on this plain fact, but on the interest of the state, what rule has the constitution given, by which this interest is to