§747. Cases arising under, the Constitution. We have seen that any national theory of our scheme of government, however partial it may be, demands that the government itself should be the final and absolute arbiter as to the interpretation of the Constitution, and as to the extent of the powers it grants and the restrictions it contains. The check and the only check upon this power, is the tripartite form of the government, and the direct responsibility of the rulers to the people. Assuming this proposition to be true, it is plain that the United States judiciary should have the power to decide all cases arising directly under the Constitution. As has been said before, a perfect theory would have made this function exclusive in the national courts; but if, from some peculiarities of our political organization, it was necessary that the state tribunals should in many instances have a concurrent jurisdiction over the same class of cases, their determinations should not be final, but should be reviewable by the judiciary of the nation. The necessity of this is evident to all those who do not adopt the state sovereignty theory and reject the very idea of one nationality. The Constitution is a unit; it speaks to every person within the bounds of the whole country; it addresses itself in compulsive terms to the state organnizations themselves. Its interpretation should therefore be the same throughout the whole land; acts permitted under it in one portion or state, should not be forbidden in another. This homogeneity of the law which is declared to be supreme, is absolutely essential to the continued existence of the nation. But plainly such a oneness of legislation and administration can only be obtained by giving to the judiciary of the United States the power of determining all cases arising under the Constitution. Granting that the state courts may have concurrent original jurisdiction in some or all of these cases, that jurisdiction must be inferior, and their decisions must be under the control of the central tribunal.

§ 748. What are cases arising under the Constitution? They must all be referable to one or the other of the following heads (1.) Where a right is asserted between two private individuals, claimed to flow from a statute of Congress, and

the contention is whether such statute was within the power of Congress to pass. (2.) Where an executive or judicial officer of the United States has done some act, or proposes to do some act, and the contention is whether the act is authorized by the Constitution. (3.) Where a right is asserted between two private individuals, claimed to flow from a statute of a state legislature, and the question is whether such statute is one which the legislature was forbidden by the Constitution to pass. (4.) Where an executive or judicial officer of a state has done, or proposes to do some act, and the question is whether the act is one forbidden by the Constitution. All these would be cases arising under the Constitution, for their decision would require an interpretation of the organic law, and a determination of the powers granted and refused by it. A single illustration of each head will suffice. At a late session Congress passed a statute most important in its general design and in its special provisions which is known as the Civil Rights Bill. Is this statute valid? It is evident that if the decision of this question were left to the state judiciary alone, there would be no uniformity in the rule adopted. In some states the law would be sustained, in others declared void; in the former the executive officers enforcing it would be considered as justified for their acts, in the latter they would be treated as trespassers and subjected to penalties. Such a condition of things would be unbearable. An act of Congress should be everywhere valid, or everywhere void. The only means of producing this result is to give a supreme and final jurisdiction over the question to the national courts.

§ 749. Again: during the late civil war, the President, through his subordinates, caused numerous military arrests to be made, and trials to be had before military commissions. Were these proceedings justifiable? Should the decision of this question be left to the local tribunals alone, an officer might be protected in one commonwealth from any penal consequences of his acts, and punished in another under exactly the same circumstances. Again: if the jurisdiction of the United States courts and judges was to be determined by the tribunals of the several states, a confusion would arise utterly destruc

tive of the whole system. A judgment of the national courts would be respected in one state, and rights under it would be secure; in another, the same judgment would be treated as a nullity. Finally, the Constitution forbids the states to pass laws impairing the obligation of contracts. If the state

courts are to be the sole judges of the meaning of this clause, and of what laws do impair the obligation of contracts, it would inevitably follow that a statute of the same character would be held valid in one commonwealth, and void in another. The uniformity in commercial and business transactions, which the Constitution endeavored to secure, would thus be destroyed.

§ 750. These instances sufficiently illustrate the nature of cases arising under the Constitution, and the absolute necessity of making the national judiciary the final and supreme, if not the sole, arbiter of all such questions. In respect to cases falling within the third and fourth of the preceding classes those growing out of a state legislative or executive act, it is evident that the original jurisdiction of the state courts should not be interfered with, should not be in the least lessened or impaired. Whatever authority is given to the United States judiciary should be entirely by way of review. Congress has acted upon this view, and has made provision by which the final determination of the state tribunal may be examined in the Supreme Court of the United States in cases where the validity of a state law or authority was drawn in question, and the decision was in favor of its validity.1 Congress has evidently failed to exercise its power in this respect to the full extent.

Those cases which fall within the first and second of the preceding classes, which grow out of a national legislative or executive act, might be withdrawn completely from the state jurisdiction. Congress has not chosen to do so in all instances. But where the local courts are left to the exercise of the power to hear and decide, some provision should be made by which the national judiciary may exert its authority. The following cases have been provided for. The final determination of the state tribunal may be examined in the Supreme

Court of the United States, where the validity of a treaty or statute of, or of an authority exercised under the United States, was drawn in question, and the decision of the state court was against the validity. In 1833 a statute was passed providing that when a suit is commenced in a state court against an officer of the United States or other person, for any act done under the revenue laws, or for or on account of any right, authority or title, set up or claimed by such officer or person under any such law, the suit may be removed from the state court into a circuit court of the United States.2 A similar power of removal has been since extended to acts done under other statutes or under other species of authority of the United States. Congress has thus partially legislated, whereas its ability to legislate completely is certain. If it may allow the suitors at their option to withdraw a case which arises under the Constitution or laws of the United States, from the state jurisdiction, it may by one blow, prohibit that jurisdiction altogether.

§ 751. Cases arising under the Laws of the United States.Many cases arising under the laws of the United States, will also arise under the Constitution. This is true of all those which draw in question the validity of the law. But there are others which assume the law to be valid, and put a construction thereon; which ascertain the rights of persons affected by it; which examine the acts of ministerial officers done in virtue thereof, and determine whether these acts are warranted by the statute. The national judiciary should certainly possess a jurisdiction in all such cases, and in the exercise thereof should be supreme. Unless this were established, the positive legislation of Congress would become a chaos. Indeed, it is difficult to see, in reference to many classes of statutes, that the state courts should have any authority at all; the subject-matter of the legislation is such that it seems to fall exclusively under the national control. A single example will illustrate this proposition. Congress establishes a system of duties to be paid upon imported goods. Revenue laws are 1 See "Judiciary Act" of 1789, § 25. 2 4 Statutes at Large, 632. 3 Statute of March 3, 1863.

always complicated, and require judicial interpretation. The rate of duty payable upon a particular article may have been left uncertain, and must be established. This rate must be uniform for all parts of the country. If the state courts may entertain cases of this description, and put a construction upon a revenue law, there would be no actual uniformity throughout the United States, and the practical evils which existed under the old Confederation would be revived. Congress has been partially influenced by these considerations, and in some instances has conferred an exclusive jurisdiction upon the national courts, while in others it has provided for a removal of suits to those courts. In all those cases where the state courts are permitted to have a concurrent jurisdiction, it is provided that their final judgment may be reviewed by the Supreme Court of the United States when a statute or treaty of the United States was drawn in question, and the decision was against the right claimed by either party under the statute treaty.1

or

§ 752. Cases arising under Treaties. The general government has exclusive control over foreign relations; it alone has power to enter into treaties; these treaties are made by the Constitution the supreme law of the land. The states are expressly forbidden to make any international compacts; they are not officially known in dealings with foreign communities. The general government is therefore charged with the most important duty of preserving its own rights and those of its citizens against other peoples and states, and of observing its own liabilities and those of its citizens towards such peoples. It is responsible for any and all infractions of treaties done either in its own name and by its own direction, or by any other authority, or by any private citizen. Where the responsibility rests, the power should also reside. It is therefore the province of the national government to give construction to treaties, and to judge of rights and liabilities arising therefrom. This function does not belong to the states, at least finally and supremely. For these reasons it is evident that the judicial department of the United States must have jurisdic

1 Judiciary Act of 1789, § 25.