liar, and the ordinary rules of civil polity must be, in a measure, departed from. With a central government possessing restricted and well defined attributes, which were, however, supreme within their sphere, and which acted upon all the individuals composing the political society, there were the state governments, to which the people had confided all the functions not granted to their national rulers and not retained dormant by themselves, which acted independently of each other, and upon a portion of the same persons who were under the supremacy of the central authority. There was danger, then that the rights of all citizens of the country at large might not be securely protected. If a citizen of the nation inhabiting one state were obliged to enforce a claim against an inhabitant of another state, even though the controversy should grow out of a matter over which the states have exclusive powers of legislation and administration, it might be that local prejudice, passion, or rivalry would prevent justice being done him in the courts of the latter commonwealth. The same would be true if a foreigner prosecuted the inhabitant of a state in its own tribunals. The states, as such, have no foreign relations, and their courts might not feel the necessity of preserving a condition of amity with foreign governments by doing complete justice to their subjects.

§ 745. From these considerations it was politic to clothe the United States judiciary with a power beyond the scope of the legislative and administrative functions held by the co-ordinate departments. In order to protect the citizen and the alien, it was expedient to permit the national courts to decide upon rights growing out of state laws, state acts, and causes completely within state control. But this supplementary jurisdiction should not be unlimited; it should extend no farther than the necessities of the case demand; it should not, therefore, depend upon the subject-matter involved in the controversy, but upon the situation and condition of the litigant parties. Moreover, this special jurisdiction should not be exclusive of the state courts; on the contrary, the latter should be left with a full liberty of concurrent action. Again, the decisions of the national judiciary made in pursuance of

this special power, need not be supreme and binding upon the states. It was enough that the particular party who appealed to the United States courts had complete justice done him in respect to the matter in dispute. Should their decisions upon subjects of this class be made supreme, the different states would be so far limited in the exercise of governmental powers that had been exclusively conferred upon them, and which had been denied to the national rulers.

Such seem to have been the considerations which suggested themselves to the framers of the Constitution, as the general principles to be followed in clothing the national judiciary with its peculiar functions. At all events the whole plan is arranged in accordance with these principles.1 We are now, therefore, brought directly to the inquiry, What jurisdiction in the aggregate does the organic law confer, or permit Congress to confer, upon the courts of the United States.

1 The essential nature of the judicial power, and the classes of subjects to which it extends, and its relations with the coordinate functions of government the legislative and executive were most carefully examined and accurately determined in cases which grew out of the proceedings adopted by Congress for the purpose of restoring the insurgent states to their normal condition in the Union. The State of Georgia commenced an action in the Supreme Court of the United States against Mr. Stanton, the Secretary of War, and others, in order to restrain them from carrying into effect the statutes commonly known as "the reconstruction acts," on the ground that they would overthrow the legitimate government already established in the state, and would set up another one in its place. The court held that the subject-matter thus brought before it was wholly political, and belonged exclusively to the legislative and the executive departments, and therefore dismissed the suit for want of jurisdiction. The opinion contains a very careful and instructive examination of the jurisdiction of courts over the subject-matter of a controversy, and especially defines the instances where such subject-matter is political and therefore not within the purview of judicial action. No support, however, is given to the absurd notion which has sometimes been advanced, that in all cases wherever the controversy calls for a decision upon the validity of a statute of Congress, the subject-matter is necessarily political. Such a doctrine, if accepted, would at once strip that high tribunal of much of its power to adjudicate upon questions of constitutional law, and would virtually make the legislature the sole expounder of that law. The subject-matter of a controversy is in this sense political and beyond the domain of the judiciary, only where it involves

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§ 746. If we analyze and arrange the several grants of power conferred, or allowed to be conferred, by the Constitution, we shall find that they may all be referred to one or the other of the two descriptions of jurisdiction already mentioned -the necessary and the supplementary or expedient. The necessary includes that jurisdiction which is based upon the intrinsic nationality and supremacy of the general government; without which that nationality and supremacy would have been but a name. It is evident that the following particular grants fall under this first head: cases in law and equity arising under the Constitution;" "cases in law and equity arising under the laws of the United States;" "cases in law and equity arising under treaties made, or which shall be made, by the authority of the United States; cases affecting ambassadors, other public ministers, and consuls; "cases of admiralty and maritime jurisdiction;" "controversies to which the United States shall be a party;" and "controversies between two or more states." All these are preeminently within the scope of the national authority, and in theory they might well have been expressly withdrawn from the state jurisdiction. Congress may complete the work, and confer an exclusive authority over them upon the United States courts; it has done so in some instances.

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§747. Cases arising under the Constitution. We have seen that any national theory of our scheme of government, however partial it may be, demands that the government itself should be the final and absolute arbiter as to the interpretation of the Constitution, and as to the extent of the powers it grants and the restrictions it contains. The check and the only check upon this power, is the tripartite form of the government, and the direct responsibility of the rulers to the people. Assuming this proposition to be true, it is plain that the United States judiciary should have the power to decide all cases arising directly under the Constitution. As has been said before, a perfect theory would have made this function. exclusive in the national courts; but if, from some peculiarithe existence de jure of a government, or the legality of some act or proceeding purely governmental. State of Georgia v. Stanton, 6 Wall. 50.

ties of our political organization, it was necessary that the state tribunals should in many instances have a concurrent jurisdiction over the same class of cases, their determinations should not be final, but should be reviewable by the judiciary of the nation. The necessity of this is evident to all those who do not adopt the state sovereignty theory and reject the very idea of one nationality. The Constitution is a unit; it speaks to every person within the bounds of the whole country; it addresses itself in compulsive terms to the state organnizations themselves. Its interpretation should therefore be the same throughout the whole land; acts permitted under it in one portion or state, should not be forbidden in another. This homogeneity of the law which is declared to be supreme, is absolutely essential to the continued existence of the nation. But plainly such a oneness of legislation and administration can only be obtained by giving to the judiciary of the United States the power of determining all cases arising under the Constitution. Granting that the state courts may have concurrent original jurisdiction in some or all of these cases, that jurisdiction must be inferior, and their decisions must be under the control of the central tribunal.

§ 748. What are cases arising under the Constitution? They must all be referable to one or the other of the following heads (1.) Where a right is asserted between two private individuals, claimed to flow from a statute of Congress, and the contention is whether such statute was within the power of Congress to pass. (2.) Where an executive or judicial officer of the United States has done some act, or proposes to do some act, and the contention is whether the act is authorized by the Constitution. (3.) Where a right is asserted between two private individuals, claimed to flow from a statute of a state legislature, and the question is whether such statute is one which the legislature was forbidden by the Constitution to pass. (4.) Where an executive or judicial officer of a state has done, or proposes to do some act, and the question is whether the act is one forbidden by the Constitution. All these would be cases arising under the Constitution, for their decision would require an interpretation of the organic law, and a

determination of the powers granted and refused by it. A single illustration of each head will suffice. At a late session Congress passed a statute most important in its general design and in its special provisions which is known as the Civil Rights Bill. Is this statute valid? It is evident that if the decision of this question were left to the state judiciary alone, there would be no uniformity in the rule adopted. In some states the law would be sustained, in others declared void; in the former the executive officers enforcing it would be considered as justified for their acts, in the latter they would be treated as trespassers and subjected to penalties. Such a condition of things would be unbearable. An act of Congress should be everywhere valid, or everywhere void. The only means of producing this result is to give a supreme and final jurisdiction over the question to the national courts.

§749. Again: during the late civil war, the President, through his subordinates, caused numerous military arrests to be made, and trials to be had before military commissions. Were these proceedings justifiable? Should the decision of this question be left to the local tribunals alone, an officer might be protected in one commonwealth from any penal consequences of his acts, and punished in another under exactly the same circumstances. Again: if the jurisdiction of the United States courts and judges was to be determined by the tribunals of the several states, a confusion would arise utterly destructive of the whole system. A judgment of the national courts would be respected in one state, and rights under it would be secure; in another, the same judgment would be treated as a nullity. Finally, the Constitution forbids the states to pass laws impairing the obligation of contracts. If the state

courts are to be the sole judges of the meaning of this clause, and of what laws do impair the obligation of contracts, it would inevitably follow that a statute of the same character would be held valid in one commonwealth, and void in another. The uniformity in commercial and business transactions, which the Constitution endeavored to secure, would thus be destroyed.

§ 750. These instances sufficiently illustrate the nature of