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THE FEDERAL JUDICIARY.

and thus the general government would absorb all the powers of the States. To all who thought that one rational consolidated government was best for America, this extensive judicial authority would be agreeable, and he intimated that his fears had been entertained by many members of the Federal Convention.1 Madison, at this point, demanded an explanation of Mason; insinuations such as this, he thought, put the late Convention in a false light. Mason's answer was a general charge that such a belief was notorious. The powers which the Constitution gave to the federal judiciary he interpreted as being without restraint and liable to be extended to a dangerously oppressive length.

Though much of the jurisdiction granted was unquestionably right he could not see the propriety of giving the judiciary jurisdiction in disputes between a State and the citizens of different States, and between a State and its citizens.2 The jurisdiction given in all cases, in law and equity, arising under the Constitution and the laws of the United States, would include, he declared, all the officers of the government, therefore they would be taken under the powerful protection of courts which were established under the Constitution; and as the judges were not appointed by the States, all suitors would be at the mercy of the court; therefore justice could not be expected. Moreover, how could a poor man meet the expense of a journey of four or five hundred miles to attend a federal court, and bring with him all his wit

nesses.

More perfectly to express his objections Mason brought forward an amendment limiting the powers of the judiciary and eliminating the jurisdiction of which he had

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complained. He would confine the appellate jurisdiction to matters of law, arising only in common law controversies. The State courts could best be trusted with the jurisdiction over controversies between citizens of different States. Such cases could in no wise concern the United States.2 Moreover, if federal jurisdiction extended over cases arising between a State and the citizens of another State, a sovereign State might be arraigned at a bar of justice like a culprit, and what State would undergo this mortification? What was to be done if judgment was obtained against a State? It could not be executed, and a power which could not be executed ought not to be granted. Again, in a suit between Virginia and a foreign State, was the foreign State to be bound by the decision? A dispute between a foreign citizen or subject and a citizen of Virginia could not be tried in a Virginia court, but must be decided in a Federal court, a provision without precedent in any other country. For men were obliged to stand by the laws of the country in which the dispute originated; the innovation was without precedent. Moreover, it would annihilate the judiciary of the State and prostrate its legislature.

In the unoccupied lands of the country Mason saw a source of endless controversy which would be settled in the national court and against the States. In reply, Madison observed that if Mason's fears were not groundless the danger to the State governments and to their property was possible. The judicial article did not fully satisfy him, and he confessed that he would have had it better expressed. But taking a practical view of it, he answered that it was to the interest of the general govern

1 His amendment is contained substantially in the fourteenth, proposed by Virginia; Elliot, III, 660.

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INTER-STATE CONTROVERSIES.

ment to promote the general welfare, therefore it could have no substantial reason for violating its duty, nor was anyone warranted, by this part of the plan, in believing that it would prove oppressive. The general purpose of the judicial article was to prevent all cases of dispute with foreign powers, and those between different States, and also to remedy partial decisions.1

It might be a misfortune in organizing any government, continued Madison, to empower any of its co-ordinate branches to interpret its authority. But this was the condition in every country, and in organizing the government of the United States no new policy in this respect had been adopted. It was necessary and expedient that, respecting the laws of the Union the judicial power should rank with the legislative. As controversies with foreign nations might arise, a supreme court was necessary to decide them. In the exposition of treaties uniformity was necessary, which could be secured only by establishing one revisionary superintending power.2 A like reason existed for giving the federal judiciary exclusive jurisdiction in admiralty and maritime cases. Controversies affecting the United States must be determined by their own judiciary and not be left to partial tribunals.

There might be some reason for refusing the federal courts jurisdiction in controversies between a State and citizens of another State. It was not in the power of individuals to call any State into court, therefore the only operation which the judicial articles could have, would be that, if a State wished to bring suit against a citizen, it must be brought before the Federal court. This would give satisfaction to individuals and would prevent partiality. If, in actual practice, the provision should be

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found improper, it could be altered. Perhaps, too, disputes between citizens of different States, a matter of no great importance, might be left to the State courts, but the administration of justice in some States had long been tardy and defective, and citizens of another State might not chance to get justice in a State court. Controversies between an American State and foreign States, Madison did not believe, could ever be decided in a federal court without the consent of the parties. If they consented, the provision for the trial was here made in the Constitution, and it was consonant to the law of nations that such disputes should be tried by a national tribunal. It should not be within the power of a State to drag the whole nation into war.1

But the chief defense and exposition of the judiciary were made by John Marshall. Judicial tribunals, such as would be appointed under the Constitution, he said, for the decision of controversies, did not exist under the Articles, and everyone must recognize the benefits to the country at large which must result from this. Mason and his followers had objected that the federal courts would not determine the causes which came before them with the same firmness and impartiality with which the State courts would decide, but Marshall refuted this charge, remarking that the federal judges would be equally competent with the State judges. Instead of being objectionable, as Mason had claimed, the appointment of an adequate number of inferior courts would be a great public convenience, and, as it seemed to Marshall, necessary to the protection of the system. There was nothing in the Constitution to show that the jurisdiction of the State courts was to be diminished; they were left

1 Id., 533; June 20, 1788.

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THE FEDERAL COURTS.

intact. No one had claimed that the government of the United States would have power to make laws on every subject. Congress could not go beyond its delegated powers, and a law unwarranted by any of the powers enumerated in the Constitution would be considered by the judges as an infringement of it, and would be declared void.

The objection that the federal judiciary would annihilate the State courts was sufficiently answered by the State dockets, which were so crowded with suits that the life of a man would not see them ended. Certainly the trial of some of these cases in other courts would neither be wrong nor leave the State courts without sufficient business. If the power was not given to the federal judiciary, the Constitution would not be protected from infringe

ment.

Mason claimed that federal officers would find protection for their misdeeds in the federal courts, an objection which Marshall pronounced unreasonable. The discrimination between the cases of chancery, admiralty and common law, he said, could well be left to Congress. It would neither enlarge its powers nor endanger the public, and he remarked with characteristic insight: "Where power may be trusted, and there is no motive to abuse it, it seems to me to be as well to leave it undetermined as to fix it in the Constitution." To suppose that a sovereign State would be dragged before a federal court,1 he said, was not rational. The intent of the judicial article, in this particular, was to enable States to recover claims of individuals residing in other States. The words, he

1 This idea was at the basis of Justice Iredell's dissenting opinion in Chisholm vs. Georgia; 2 Dallas, 419; and also of the Eleventh Amendment; see the account of this amendment post, pp. 264-291.