involve the idea of a sanction to enforce the command; without the sanction the command would simply be a request or the expression of a wish. In civilized countries, the judiciary, in effect, wields the sanctioning authority; it enforces penalties of one sort or another for the breach of public and of private rights. It is plainly necessary, therefore, that this sanctioning authority, or authority to enforce, should be coextensive with the legislative authority, or authority to create law. Just so far forth as the former should fall short of the latter, the laws would either be nullities, or would be arbitrarily executed by the ministerial officers. Of course it is not indispensable that each particular tribunal should possess functions equal in extent to those of the legislature; there may well be grades of courts. But the judicial system as a whole must, if the energies of the nation and the liberties of the people are to be preserved, be equal in the field of its operations to the lawmaking department. Thus we find in England, side by side with an omnipotent Parliament, a number of superior courts clothed with a general jurisdiction. In our own country the states under the National Constitution, possess but a limited legislative authority; in respect to many important subjects their power to enact laws is taken away. But they have all established a judiciary with functions commensurate with the legislative attributes conferred upon them by the people of the nation.

§ 741. In the next place, it may be affirmed that the judiciary need have no greater degree or amount of power than that held by the supreme legislature of a state or nation. Indeed, as far as such an excess of power should be expressly granted to the courts, it would be unnecessary and likely to produce great evils, except in very peculiar circumstances, such as those which will be mentioned in the sequel; as far as it should be assumed by them, the act would be a palpable usurpation. These principles which seem to be elementary and fundamental, to be a part of the very axioms of political science, are of the utmost importance in this discussion, for by them we must test the jurisdiction which may be wielded by the national courts.

§ 742. There was no plainer note of the unnational character of the early confederated government, than the absence of any judiciary of the United States. But the contrivers of that unfortunate plan were at least logical and consistent. As there was no judiciary, there was no Executive; the utterances of the Congress were not addressed to individuals as commands, but to assumed sovereign states, as requests or recommendations. When the Convention determined to frame a government which should express the national idea, be founded upon the fact of an existing nationality, and be clothed with national attributes, the necessity of a national judiciary was at once conceded. The important question to be determined was, the amount, extent, and nature of the jurisdiction to be conferred upon that system of courts in the aggregate. Reasoning a priori, it must be said that as far as the powers of Congress or of the Executive extend, so far should the powers of the judiciary extend; as far as the legislation of the national government or the acts of the Executive are supreme, so far should the jurisdiction of the courts, and their decisions in accordance therewith, be supreme. Where the legislature is authorized to make laws, the courts should be authorized to expound them, and apply the sanction; where the laws thus made are binding upon the community, and superior to all local and state legislation, the expositions made and the sanctions applied by the judiciary should be equally binding and superior.

§743. The correctness of this reasoning no one can deny. Strip the national government of an authority to apply a sanction commensurate with its power to legislate, and just so far we subtract from that legislation the necessary element of a command. Strip the government of the ability to make that sanction supreme, and we equally invalidate the authority of the legislative utterance. This attribute of supremacy would be destroyed by permitting the state courts, for example, to decide upon the effect of national laws, and by making their decisions, in the particular state where made, of an equal authority with those pronounced upon the same subject by the national judges. This difficulty thus to be apprehended from the action of state tribunals, could only be prevented in one

of two ways; either by removing from them the power to decide at all upon rights and duties which spring from the national legislation, and conferring the function exclusively upon the United States courts; or by permitting the state judiciary to exercise a jurisdiction in such cases, but making that jurisdiction subordinate to the authority of the national courts, and rendering the local decisions reviewable by the United States judges who could in this manner enforce their attribute of supremacy in relation to the matters under consideration. In theory the former of these plans would have been the more simple and perfect. But it was perhaps best, from some motives of expediency, that the Constitution should not expressly determine between these two methods, but should clothe Congress with the power of making such a choice of the alternatives as should be found to promote the convenience of the people. Congress possesses such an authority; it might make all this jurisdiction exclusive in the national courts, but has done so only in particular cases; it might suffer the state tribunals to exercise a complete concurrent power, subject to an equally complete liability to review, but has done so only to a limited extent. Whether Congress shall adopt one or the other alternative, is a mere question of policy; it may do either. I remark in passing, that, as the true relations between the nation and the states become more clearly defined, this jurisdiction will be relegated entirely to that department where it theoretically belongs, to the judiciary of the United States.

§ 744. If it had been the intention to make the government of the United States unlimited, then its judiciary should have been clothed with functions equally extensive, identical with those entrusted to the superior courts of law and equity in England. But such was not the design; such was not the fact. The new-made government was limited in the range of its legislative and administrative attributes; and so far forth as the jurisdiction of the national courts was to be based upon the existence of those attributes, it should partake of the same limitation; in theory and in general, it should have extended no farther. But the situation of the United States was pecu

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

states.

this special power, need not be supreme and binding upon the 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. 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.

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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.