the ju licial Extent of II. The federal judiciary being thus established on power. principles which are essential to maintain that department in a proper state of independence, and to secure the pure and vigorous administration of the law, the constitution proceeded to designate, with comprehensive precision, the objects of its jurisdiction. The judicial power extends (a) to all cases in law and equity arising under the constitution, the laws, and treaties of the Union; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; to controversies between a state, when plaintiff, and citizens of another state, or foreign citizens or subjects; to controversies between citizens of different states, and between citi zens of the same state, claiming lands under grants of * 296 different states; and between a state or citizens thereof, and foreign states; and between citizens and foreigners. The propriety and fitness of these judicial powers seem to result, as a necessary consequence, from the union of these states in one national government, and they may be considered as requisite to its existence. The judicial power in every government must be coextensive with the power of legislation. It follows, as a consequence, that the judicial department of the United States is, in the last resort, the final expositor of the constitution as to all questions of a judicial nature. (b) Were there no power to interpret, pronounce, and execute the law, tinuance of the judges in office. In New Hampshire, North Carolina, and Kentucky, adequate and permanent, or fixed salaries, are directed to be provided by law. In other states (and New York is one of them) the compensation of the judges, and the duration of it, rest entirely in legislative discretion; for though the statute (as in New York) may declare that the judges shall have a specified annual salary, the statute is liable, at any future time, to legislative repeal.1 (a) Art 3, sec. 2. Amendments to the Constitution, art. 11. (b) The Federalist, Nos. 33, 39, 80. Story's Commentaries on the Constitution, vol. i. pp. 263, 360, 362, notes. Marshall, Ch. J., in Cohens v. Virginia, 6 Wheaton, 264, 384. The whole question is fully examined, and all the contemporary discussions in relation to it, placed in a striking view, in 1 Story's Commentaries on the Constitution, pp. 344-382. 1 But the legislature cannot increase or diminish the compensation of any judge during his continuance in office. Constitution of New York, Art. 6, sec. 7. the government would either perish through its own imbecility, as was the case with the articles of confederation, or other powers must be assumed by the legislative body, to the destruction of liberty. That the interpretation of treaties, and the cases of foreign ministers and maritime matters, are properly confided to the federal courts, appears from the close connection those cases have with the peace of the Union, the confusion that different proceedings in the separate states would tend to produce, and the responsibility which the United States are under to foreign nations for the conduct of all its members. The other cases of enumerated jurisdiction are evidently of national concern, and they constitute one of the principal motives to union, and one of the principal cases of its necessity, which was the insurance of the domestic tranquillity. The want of a federal judiciary to embrace these important subjects, was once severely felt in the German confederacy, and disorder, license and desolation reigned in that unhappy country, until the establishment of the imperial chamber by the Emperor Maximilian, near the close of the fifteenth century; and that jurisdiction was afterwards the great source of order and tranquillity in the Germanic body. (a) * The judicial power, as it originally stood, extended to suits prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state; but the states were not willing to submit to be arraigned as defendants before the federal courts, at the instance *of private persons, be the cause of action what it *297 might, The decision of the Supreme Court of the United States, in the case of Chisholm v. The State of Georgia, (b) decided in 1793, in which it was adjudged that a state was suable by citizens of another state, gave much dissatisfaction, and the legislature of Georgia carried their opposition to an open defiance of the judicial authority. The inexpediency of the power appeared so great, that Congress, in 1794, proposed to the states an amendment to that part of the constitution, and it was subsequently amended in this particular VOL. I. (a) Robertson's Charles V. vol. i. pp. 183, 395, 397. 28 under the provision in the fifth article. It was declared by the amendment, (a) that the judicial power of the United States should 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. (b) The inhibition applies only to citizens or subjects, and does not extend to suits by a state, or by foreign states or powers. (c) They retain the capacity to sue a state as it was originally granted by the constitution; and the Supreme Court has original jurisdiction in the case of suits by a foreign state against one of the members of the Union. (d) (a) Amendments, art. 11. (b) As the United States have no existenee, as a political ideal being, except under the organization of the constitution and laws of the United States, it is assumed as a principle flowing from the sovereignty of the United States, that the officers of the government are not subject to suits for acts in the regular discharge of their official duties. Opinions of the Attorneys-General, (Gilpin's edit.) vol. i. 457. (c) The Cherokee Nation v. Georgia, 5 Peters's U. S. Rep. 1. New Jersey v. New York, Ibid. 284. A mandamus is a suit within the meaning of the constitution, for it is a litigation of a right in a court of justice, seeking a decision. Weston v. City Council of Charleston, 2 Peters's R. 449. Holmes v. Jennison, 15 Id. 564. (d) Blair, J., and Cushing, J., in Chisholm v. State of Georgia, 2 Dallas, 419. That a foreign prince or state may sue in our own, as well as in the English courts of law and equity, see King of Spain v. Oliver, 1 Peters's Cir. Rep. 276. The Colombian Government v. Rothschild, 1 Simons, 104.1 King of Spain v. Machado, 4 Russell, 238. 1 Dow, P. C. N. S. 165, S. C. No direct suit can be maintained against the United States, without the authority of an Act of Congress, nor can any direct judgment be awarded against them for costs. Marshall, Ch. J., in Cohens v. Virginia, 6 Wheaton, 411, 412. United States v. Clarke, 8 Peters, 444. United States v. Barney, Dist. C. Maryland, 3 Hall's L. J. 128. United States v. Wells, 2 Wash. C. C. R. 161. Opinions of the Attorneys-General, (Gilpin's edit.) vol. ii. 967, 968. But if an action be brought by the United States to recover money in the hands of a party, he may, by way of defence, set up any legal or equitable claim he has against the United States, and need not, in such case, be turned round to an application to Congress. Act of Congress, March 3d, 1797, c. 74, sec. 3, 4. United States v. Wilkins, 6 Wheaton, 135, 143. Walton v. United States, 9 Wheaton, 651. United States v. Macdaniel, 7 Peters's U. S. Rep. 16. United States v. Ringgold, 8 Ibid. 163. United States v. Clarke, 8 Ibid. 436. United States v. Robeson, 9 1 In this case a demurrer to the bill was allowed on the ground that a foreign state cannot bring a suit in chancery, in its own name, but must sue in the name of some public officer. But in the case of The Republic of Mexico v. De Arangoiz, (5 Duer, N. Y. 639,) it was held that the House of Lords had, in the case of The King of Spain v. Huttill, (1 Dow & Clark, 164,) repudiated and overruled the doctrine laid down in the case of The Colombian Government v. Rothschild, and that the Republic of Mexico might sue eo nomine. With these general remarks on the constitutional principles of the judiciary department and the objects of its authority, Peters, 319. Same v. Hawkins, 10 Ibid. 125. Same v. Bank of the Metropolis, 15 Peters's U. S. Rep. 377. In the case of the late Bank of the United States, which claimed damages by way of set-off on a protested bill drawn by the United States, the Attorney-General, in an elaborate official opinion, held, that the set-off could not be allowed in a suit by the United States against the bank, for dividends due the United States and withheld. Opinions of the Attorneys-General, Nov. 28th, 1834, vol. ii. 964, 982. But in the same case of The Bank of the United States v. The United States, in 2 Howard's U. S. Rep. 711, the United States sued the bank for dividends withheld; and the bank, by way of set-off, claimed 15 per cent. damages, under the law of Maryland, (which on this point was the law at the city of Washington,) on a protested bill drawn by the government of the United States on France, and taken by the bank as first indorsee, and presented at Paris for payment, and protested for non-payment, and taken up by a banking-house in Paris, supra protest, for the honor of the Bank of the United States, which was the first indorser. It was held, by a majority of the court, that the bank, on satisfying the banking-house in Paris, became the lawful holder of the bill, and as such holder entitled to the damages by way of set-off against the United States as drawer, in like manner as any individual holder of a protested bill would be. Mr. Ch. J. Taney, who, when attorney-general, gave a brief opinion in this case, added a new opinion founded on the special circumstances of the case, against the allowance of the set-off, denying that the United States were bound, either in law or equity to pay, or the bank entitled to claim, the contested damages. Independent of anything special in the case, the general doctrine of the decision was sound and unquestionable. To entitle the party to his setoff, his claim must have been previously submitted to the accounting officers of the treasury and been disallowed, or he must reasonably account for the omission. See sec. 3 and 4 of the Act aforesaid. In the case Ex parte Madrazzo, 7 Peters's U. S. Rep. 627, a subject of the King of Spain filed a libel in the admiralty, against the state of Georgia, alleging that the state was in possession of moneys, being the proceeds of certain property belonging to him, and claiming a right to institute a suit in the admiralty for the same, and that the 11th amendment to the constitution of the United States did not take away the jurisdiction of the courts of the United States in suits in admiralty against a state. But on appeal from the decree of the Circuit Court, sustaining the libel, to the Supreme Court of the United States, it was held, that the proceeding in question was a mere personal suit against a state, to recover property in its possession; and that a private person could not commence such a suit; and that it was not a case where the property was in the custody of a court of admiralty, or brought within its jurisdiction, and in possession of any private person. The jurisdiction would seem to have been impliedly admitted in the latter case. A state cannot be sued in its own courts without its consent. Michigan State Bank ". Hastings, Walker's Mich. Ch. R. 9. This is an attribute of sovereignty and of universal law. But a foreign sovereign may voluntarily become a party to a suit in the tribunals of another country, and have his rights asserted and enforced.2 And it was declared in the case 1 The constitution of Arkansas expressly provides that suits may be instituted against the state; these provisions are to be liberally construed. State v. Curran, 7 Engl. 321. 2 In the Pennsylvania Law Journal, Dec. 1847, p. 97, a case is reported which occurred we proceed to a particular examination of the several courts of the United States as ordained by law. * 298 (1.) The Supreme Court was instituted by the conSupreme stitution, which ordained that "the judicial power of Court. the United States should be vested in one Supreme Court, and in such inferior courts as Congress might from time to time ordain and establish." (a) But it received its present organization from Congress, for the constitution had only declared, in general terms, that there should be a Supreme Court, with certain original and appellate powers. It consists of The Exchange, 7 Cranch, 116, that all persons and property within the territorial jurisdiction of any sovereign were amenable to the local jurisdiction, with such exceptions only as common usage and public policy had allowed. The result is, (1.) That no citizen of any of the United States, or subject of a foreign state, can sue a state. (2.) That a foreign state may sue one of the United States before the Supreme Court of the United States, and there only. (3.) That the United States cannot be sued.1 (4.) That the United States may sue a state, and perhaps they may, as a bonâ fide assignee of an individual creditor of a state, and perhaps an individual state, or a foreign state, as such assignee, may do it. See Hamilton's Report on Public Credit, 1790, p. 9. This last point is without any judicial support that I am aware of; and it may be questioned how far voluntary assignments, made and accepted for the sake of the remedy, would be available. (a) Art. 3, sec. 1. in the Civil Tribunal of the Seine. A Frenchman attached merchandise of the Pacha of Egypt on a claim made under a contract entered into with an agent of the Pacha; the court declared that it had no jurisdiction over foreign governments, except in the case of immovable property, and the claim was on a contract made with the Egyptian government. See, also, Munden v. Duke of Brunswick, 10 Ad. & Ell. N. S. 656. No English court has jurisdiction to entertain an action against a foreign sovereign for anything done, or omitted to be done by him, in his public capacity as representative of the nation of which he is the head. De Haber v. Queen of Portugal, 7 E. L. & Eq. 340. 1 Congress, by Act of February 24th, 1855, (Stat. at Large, vol. x. p. 612,) established a court of claims, which is authorized to "hear and determine all claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States, which may be suggested to it by a petition filed therein; and also all claims which may be referred to it by either house of Congress." But the judgments of the court are of no effect until confirmed by Congress. And even if the court decide against any claim, Congress may overrule their decision. 2 The United States may bring a civil suit for a trespass on the public lands, either in the state courts or in their own tribunals, by the common law. Cotton v. United States, 11 How. U. S. 229. State of Pennsylvania v. Wheeling Bridge Co. 13 How. U. S. 519. By Act of Congress, February 26, 1853, (Stat. at Large, vol. x. p. 170,) all transfers of claims upon the United States are declared void, unless executed in presence of two witnesses, after the allowance of the claim, the ascertainment of amount due, and the issuing of a warrant for its payment. Penal provisions are enacted against officers of the government, senators, or members of congress, prosecuting such claims. |