are granted to the government of the United States by the present instrument and the adopted amendments, which are for particular purposes only. The government of the United States forms a part of the government of each state; its jurisdiction extends to the providing for the common defence against exterior injuries and violence, the regulation of commerce, and other matters specially enumerated in the constitution; all other powers remain in the individual states, comprehending the interior and other concerns; these combined, form one complete government. Should there be any defect in this form of government, or any collision occur, it cannot be remedied by the sole act of the congress, or of a state; the people must be resorted to, for enlargement or modification. If a state should differ with the United States about the construction of them, there is no common umpire but the people, who should adjust the affair by making amendments in the constitutional way, or suffer from the defect. In such a case the constitution of the United States is federal; it is a league or treaty made by the individual states, as one party, and all the states, as another party. When two nations differ about the meaning of any clause, sentence, or word in a treaty, neither has an exclusive right to decide it; they endeavour to adjust it by negociation, but if it cannot be thus accomplished, each has a right to retain its own interpretation, until a reference be had to the mediation of other nations, an arbitration, or the fate of war. There is no provision in the constitution, that in such a case the judges of the Supreme Court of the United States shall controul and be conclusive: neither can the congress by a law confer that power. There appears to be a defect in this matter, it is a casus omissus, which ought in some way to be remedied. Perhaps the vice-president and senate of the United States; or commissioners appointed, say one by each state, would be a more proper tribunal than the Supreme Court. Be that as it may, I rather think the remedy must be found in an amendment of the constitution.

I shall now consider the case before us. It is an action brought in the name of the commonwealth of Pennsylvania, against an alien, a British subject. By the express words of the second sentence of the 2nd-section of the third article of the constitution of the United States, in such an action the supreme court shall have original jurisdiction; whereas it is prayed by the defendant, that original jurisdiction be given to the circuit court. From this, it would reasonably be concluded, that the congress, in the 12th section of the judicial

law, did not contemplate an action wherein a state was plaintiff, though an alien was defendant, for it is there said, "that if a suit be commenced in any state court against an alien, &c." as it does not mention by a state, the presumption and construction must be, that it meant by a citizen. This will appear pretty plain from a perusal of 11th section of the same act, where it is enacted that the circuit courts shall have original cognizance, concurrent with the courts of the seve ral states, of all suits of a civil nature, of a certain value, where the United States are plaintiffs or petitioners, or where an alien is a party. This confines the original cognizance of the circuit courts, concurrent with the courts of the several states, to civil actions commenced by the United States, or citizens against aliens, or where an alien is a party, &c. and does not extend to actions brought against aliens, by a state, for of such the supreme court had, by the constitution, original jurisdiction. I would further remark, that the jurisdiction of the circuit courts is confined to actions of a civil nature against aliens, and does not extend to those of a criminal nature; for although the word "suit" is used generally in the 12th section, with expressing the words " of a civil nature," yet the slightest consideration of what follows, manifestly shews that no other suit was meant ; for the matter in dispute must exceed five hundred dollars in value, special bail must be given, &c. terms applicable to actions of a civil nature only.

Let us now consider whether this suit against William Cobbet is of a civil or criminal nature. It is grounded on a recognizance for the good behaviour intered into before the chief justice of this state. This recoguizance, it must be conceded, was taken to prevent criminal actions by the defendant, in violation of the peace, order, and tranquillity of the society; it was to prevent crimes, or public wrongs, and misdemeanors, and for no other purpose. It is evidently of a criminal nature and cannot be supported, unless he shall be convicted of having committed some crime, which would incur its breach since its date, and before the day on which the process issued against him. Besides, a recognizance is a matter of record, it is in the nature of a judgment, and the process upon it, whether a scire facias or summons, is for the purpose of carrying it into execution, and is rather judicial than original; it is no farther to be reckoned an original suit, than that the defendant has a right to plead to it: it is founded upon the recognizance, and must be considered as flowing from it, and partaking of its nature; and when final

judgment shall be given the whole is to be taken as one record. It has been well observed by the attorney general, that by the last amendment, or legislative declaration of the meaning of the constitution, respecting the jurisdiction of the courts of the United States over the causes of states, it is strongly implied, that states shall not be drawn against their will directly or indirectly before them, and that if the present application should prevail this would be the case. The words of the declaration 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 any foreign state." When the judicial law was passed, the opinion prevailed that states might be sued, which by this amendment is settled otherwise.

The argument ab inconvenienti is also applicable to the construction of this section of the act of congress.. Can the legislature of the United States be supposed to have intended (granting it was within the constitutional powers) that an alien, residing three or four hundred miles from where the Circuit Court is held, who has, from his turbulent and infamous conduct in his neighbourhood, been bound to the good behaviour by a magistrate of a state, should, after a breach of his recognizance and a prosecution for it commenced, be enabled to remove the prosecution before a court at such a distance, and held but twice in a year, to be tried by a jury, who know neither the persons, nor characters, of the witnesses, and consequently are unqualified to try their credit; and to oblige the prosecutor and witnesses to incur such an expence of time and money, in order to prove that he had committed an assault, or any other offence that would amount to a violation of it? If so, such a recognizance, though it would operate as a security to the public against a citizen, would be of little avail against an alien. It cannot be con

ceived, that they intended to put an alien in a more favourable situation than a citizen in such a case, and by difficulties thrown in the way to discourage and weaken, if not defeat the use of, a restraint, found often to be very salutary in preserving the peace and quiet of the people. Many other inconveniences have been mentioned by the counsel, which I shall not repeat. If, therefore, any other construction can be made it ought to prevail.

Upon the whole, our opinion is, that where a state has a controversy, with an alien about a contract, or other matter of a civil nature, the Supreme Court of the United States has

1

original jurisdiction of it, and the Circuit or District Courts have nothing to do with such a case. The reason seems to be founded in a respect for the dignity of a state, that the ac-. tion may be brought in the first instance before the highest tribunal, and also that this tribunal would be most likely to guard against the power and influence of a state over a foreigner. But that neither the constitution nor the congress ever contemplated, that any court under the United States should take cognizance of any thing savouring of criminalty against a state: That the action before the court is of a criminul nature and for the punishment of a crime against a state: That yielding to the prayer of the petitioner would be highly inconvenient in itself and injurious in the precedent: And that cognizance of it would not be accepted by the Circuit Court, if sent to them; for even consent cannot confer jurisdiction. For these reasons, and others, omitted for the sake of brevity, I conclude, the prayer of Wilham Cobbet cannot be granted.

The Petition rejected. Martin's law of nations-page 265—6. ? Merl Sect. 1. Of forcible means in general

IN case of a difference between two sovereigns, he who complains of a violation of his natural or positive rights, ought, unless his pretensions be of an indisputable nature, to begin by sufficiently proving those rights as well as the violation of them complained of. This done, if he cannot obtain due satisfaction by amicable means, or if he foresees that it would be useless to try such means, he may, if he does not choose to renounce satisfaction altogether, have recourse to forcible means, whether it be in defence or pursuit of his rights. Forcible means are, indeed, in such case, the only ones that are left to sovereigns who acknowledge no judge or superior.*

Forcible means are of several degrees, which differ widely from each other, and every sovereign is obliged to confine himself to the employment of the lowest degree by which

* This must be applied with a good deal of circumspection to the States of the Empire. In their differences with each other, they are obliged to carry their complaints before the tribunals of the Empire; except, 1 certam forcible means which they are permitted to employ like sovereign powers (See the next Sect.); 2. in the cases where the laws authorize them to make use of forcible means; 3. in cases on which the tribunals of the Empire, whether from the nature of their jurisdiction or from circumstances, cannot decide. In their differences with foreign nations, they are hindered mediately only from exercising all the rights, touching this point, belonging to sovereign states.

he can obtain due satisfaction. Above all, he ought to distinguish carefully the means of redress proper to be made use in case of a violation of an imperfect obligation, from those which would be justifiable in case of a violation of a perfect obligation.

Sect. 2. Of retaliation.

There are many ways of violating an imperfect obligation. In general, a sovereign violates his perfect obligations, in refusing to permit or to do what equity and humanity dictate, and in doing what, in the rigor he has a right to do, but which humanity and equity forbid. Particularly, 1. in refusing to observe a point of simple custom; 2. in introducing into his dominions some partial right or law, to the prejudice of foreigners*.

From the nature of imperfect rights and obligations, it is clear that no violation of them can authorize the use of forcible means, or the infraction of perfect obligations, in the pursuit of redress; but, it is no less clear that, in order to obtain such redress, a sovereign may make use of retaliation. He may, for instance, refuse to comply with the same custom with respect to another sovereign, that that sovereign, has refused to comply with, with respect to him; or he may refuse to comply with some other custom which is equivalent to it. He may introduce a partial right or law, to the prejudice of such foreigners as have done the same with respect to him or his subjects. By these means he re-establishes reciprocity, or obliges unfriendly powers te change their conduct.

These acts of retaliation are much in use, as well among the sovereign as the demi-sovereign states of Europe.

* It must not be understood, tirat every little inequality to be found in the legislation of two states, ought to be considered as a partial right or law, that would authorize retaliation. A partial right, in the private affairs of subjects, implies a distinction made between subjects and foreigners, to the prajudice of the latter. See B 3 Chap. 3 Sec, 7. See also LODEWIG, gelehrte Anzegein, v. 1. p. 73. J. G. BAUER, Meuutitutiones, de vero fundameuto quo inter civitates miti. tur retorsio juris, Lips. 1740.