constitution prohibited from doing a variety of things; some of which are incompatible with the interests of the Union; others with its peace and safety; others with the principles of good government. The imposition of duties on imported articles, the declaration of war, and the emission of paper money, are examples of each kind. No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain, or correct the infractions of them.1 The power must be either a direct negative on the state laws, or an authority in the national courts to overrule such, as shall manifestly be in contravention to the constitution. The latter course was thought by the convention to be preferable to the former; and it is, without question, by far the most acceptable to the states.2

§ 1636. The same reasoning applies with equal force to "cases arising under the laws of the United States." In fact, the necessity of uniformity in the interpretation of these laws would of itself settle every doubt, that could be raised on the subject. "Thirteen independent courts of final jurisdiction (says the Federalist) over the same causes is a

In all these cases equitable circumstances may arise, the cognizance of which, as well as such, as were strictly legal, would belong to the federal judiciary, in virtue of this clause." I Tuck. Black. Comm. App. 418, 419. See also 2 Elliot's Debates, 380, 383, 390, 400, 418, 419.

1 See 3 Elliot's Debates, 142.

2 The Federalist, No. 80. See also Id. No. 22; 2 Elliot's Debates, 389, 390.—The reasonableness of this extent of the judicial power is very much considered by Mr. Chief Justice Marshall, in delivering the opinion of the court, in Cohens v. Virginia, (6 Wheat. R. 413 to 423,) from which some extracts will be made, in considering the appellate jurisdiction of the Supreme Court, in a future page.

Hydra in government, from which nothing but contradiction and confusion can proceed."1

§ 1637. There is still more cogency, if it be possible, in the reasoning, as applied to "cases arising under treaties made, or which shall be made, under the authority of the United States." Without this power, there would be perpetual danger of collision, and even of war, with foreign powers, and an utter incapacity to fulfil the ordinary obligations of treaties. The want of this power was (as we have seen 3) a most mischievous defect in the confederation; and subjected the country, not only to violations of its plighted faith, but to the gross, and almost proverbial imputation of punic insincerity.*

§ 1638. But, indeed, the whole argument on this subject has been already exhausted in the preceding part of these Commentaries, and therefore it may be dismissed without farther illustrations, although many humiliating proofs are to be found in the records of the confederation.5

1 The Federalist, No. 80; Id. No. 22; Id. No. 15; 2 Elliot's Debates, 389, 390; 3 Elliot's Debates, 142, 143. In the Convention, which fram ed the constitution, the following resolution was unanimously adopted. "That the jurisdiction of the national judiciary shall extend to cases arising under laws passed by the general legislature, and to such other questions, as involve the national peace and harmony." Journ. of Convention, 188, 189.

2 The Federalist, No. 22, No. 80; 2 Elliot's Debates, 390, 400; The Federalist, No. 80.-The remarks of The Federalist, No. 80, on this subject will be found very instructive, and should be perused by every constitutional lawyer.

3 Ante, Vol. I. § 266, 267, 483, 484; 3 Elliot's Debates, 148, 280. 4 3 Elliot's Debates, 281.

5 Ante, Vol. I. § 266, 267, 483, 484; The Federalist, No. 22, No. 80; 1 Tuck. Black. Comm. App. 418, 419, 420.— This clause was opposed with great earnestness in some of the state conventions, and particularly in that of Virginia, as alarming and dangerous to the rights and

§ 1639. It is observable, that the language is, that "the judicial power shall extend to all cases in law and equity," arising under the constitution, laws, and treaties of the United States. What is to be understood by "cases in law and equity," in this clause ? Plainly, cases at the common law, as contradistinguished from cases in equity, according to the known distinction in the jurisprudence of England, which our ancestors brought with them upon their emigration, and with which all the American states were familiarly acquainted. Here, then, at least, the constitution of the United States appeals to, and adopts, the common law to the extent of making it a rule in the pursuit of remedial justice in the courts of the Union.s If the remedy must be in law, or in equity, according to the course of proceedings at the common law, in cases arising under the constitution, laws, and treaties, of the United States, it would seem irresistibly

liberties of the states, since it would bring every thing within the vortex of the national jurisdiction. It was defended with great ability and conclusiveness of reasoning, as indispensable to the existence of the national government, and perfectly consistent with the safety and prerogatives of the states. See 2 Elliot's Debates, 380 to 427; 3 Elliot's Debates, 125, 128, 129, 133, 143; Id. 280; 4 Elliot's Debates, (Martin's Letter,) 45.

1 See 3 Elliot's Debates, 127, 128, 129, 130, 133, 141, 143, 154. 2 See Robinson v. Campbell, 3 Wheat. R. 212, 221, 223.

3 It is a curious fact, that while the adoption of the common law, as the basis of the national jurisprudence, has been, in later times, the subject of such deep political alarm with some statesmen, the non-existence of it, as such a basis, was originally pressed by some of the ablest opponents of the constitution, as a principal defect. Mr. George Mason of Virginia urged, that the want of a clause in the constitution, securing to the people the enjoyment of the common law, was a fatal defect. 2 American Museum, 534; ante, Vol. I. p. 275. Yet the whole argument in the celebrated Resolutions of Virginia of January, 1800, supposes, that the adoption of it would have been a most mischievous pro

vision.

to follow, that the principles of decision, by which these remedies must be administered, must be derived from the same source. Hitherto, such has been the uniform interpretation and mode of administering justice in civil cases, in the courts of the United States in this class of cases.1

§ 1640. Another inquiry may be, what constitutes a case, within the meaning of this clause. It is clear, that the judicial department is authorized to exercise jurisdiction to the full extent of the constitution, laws, and treaties of the United States, whenever any question respecting them shall assume such a form, that the judicial power is capable of acting upon it. When it has assumed such a form, it then becomes a case; and then, and not till then, the judicial power attaches to it. A case, then, in the sense of this clause of the constitution, arises, when some subject, touching the constitution, laws, or treaties of the United States, is submitted to the courts by a party, who asserts his rights in the form prescribed by law. In other words, a case is a suit in law or equity, instituted according to the regular course of judicial proceedings; and, when it involves any question arising under the constitution, laws, or treaties of the United States, it is within the judicial power confided to the Union.3

1 See Cox & Dick v. United States, 6 Peters's Sup. R. 172, 203; Robinson v. Campbell, 3 Wheat. R. 212. See Madison's Report, 7 January, 1800, p. 28, 29; Chisholm's Executors v. Georgia, 2 Dall. R. 419, 433, 437; S. C. 2 Cond. R. 635, 640, 642, per Iredell J.; The Federalist, No. 80, No. 83.

2 Osborn v. The Bank of the United States, 9 Wheat. R. 819. See Mr. Marshall's Speech on the case of Jonathan Robbins; Bee's Adm. R. 277.

3 See 1 Tuck. Black. Comm. App. 418, 419, 420; Madison's Virginia

§ 1641. Cases arising under the constitution, as contradistinguished from those, arising under the laws of the United States, are such as arise from the powers conferred, or privileges granted, or rights claimed, or protection secured, or prohibitions contained in the constitution itself, independent of any particular statute enactment. Many cases of this sort may easily be enumerated. Thus, if a citizen of one state should be denied the privileges of a citizen in another state;1 if a state should coin money, or make paper money a tender; if a person, tried for a crime against the United States, should be denied a trial by jury, or a trial in the state, where the crime is charged to be committed; if a person, held to labour, or service in one state, under the laws thereof, should escape into another, and there should be a refusal to deliver him up to the party, to whom such service or labour may be due; in these, and many other cases, the question, to be judicially decided, would be a case arising under the constitution.2 the other hand, cases arising under the laws of the United States are such, as grow out of the legislation of congress, within the scope of their constitutional authority, whether they constitute the right, or privilege, or claim, or protection, or defence, of the party, in whole or in part, by whom they are asserted.3 The same reasoning applies to cases arising under treaties. Indeed, wherever, in a judi

On

See

Resolutions and Report, January, 1800, p. 28; Marbury v. Madison, 1 Cranch's R. 137, 173, 174; Owing v. Norwood, 5 Cranch, R. 344. 2 Elliot's Debates, 418, 419.

1 The Federalist, No. 80.

21 Tucker's Black. Comm. App. 418, 419; ante, Vol. II. §

3 Marbury v. Madison, 1 Cranch, 137, 173, 174.