democracy in america-1-第44节
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rest it is a nonentity。 But the inference to be drawn is； that in the laws relating to these matters the Union possesses all the rights of absolute sovereignty。 The difficulty is to know what these matters are； and when once it is resolved （and we have shown how it was resolved； in speaking of the means of determining the jurisdiction of the Federal courts） no further doubt can arise； for as soon as it is established that a suit is Federal … that is to say； that it belongs to the share of sovereignty reserved by the Constitution of the Union … the natural consequence is that it should come within the jurisdiction of a Federal court。
＇Footnote h： This principle was in some measure restricted by the introduction of the several States as independent powers into the Senate； and by allowing them to vote separately in the House of Representatives when the President is elected by that body。 But these are exceptions； and the contrary principle is the rule。＇
Whenever the laws of the United States are attacked； or whenever they are resorted to in self…defence； the Federal courts must be appealed to。 Thus the jurisdiction of the tribunals of the Union extends and narrows its limits exactly in the same ratio as the sovereignty of the Union augments or decreases。 We have shown that the principal aim of the legislators of 1789 was to divide the sovereign authority into two parts。 In the one they placed the control of all the general interests of the Union； in the other the control of the special interests of its component States。 Their chief solicitude was to arm the Federal Government with sufficient power to enable it to resist； within its sphere； the encroachments of the several States。 As for these communities； the principle of independence within certain limits of their own was adopted in their behalf； and they were concealed from the inspection； and protected from the control； of the central Government。 In speaking of the division of authority； I observed that this latter principle had not always been held sacred； since the States are prevented from passing certain laws which apparently belong to their own particular sphere of interest。 When a State of the Union passes a law of this kind； the citizens who are injured by its execution can appeal to the Federal courts。
Thus the jurisdiction of the Federal courts extends not only to all the cases which arise under the laws of the Union； but also to those which arise under laws made by the several States in opposition to the Constitution。 The States are prohibited from making ex post facto laws in criminal cases； and any person condemned by virtue of a law of this kind can appeal to the judicial power of the Union。 The States are likewise prohibited from making laws which may have a tendency to impair the obligations of contracts。 *i If a citizen thinks that an obligation of this kind is impaired by a law passed in his State； he may refuse to obey it； and may appeal to the Federal courts。 *j
＇Footnote i： It is perfectly clear； says Mr。 Story （〃Commentaries；〃 p。 503； or in the large edition Section 1379）； that any law which enlarges； abridges； or in any manner changes the intention of the parties； resulting from the stipulations in the contract； necessarily impairs it。 He gives in the same place a very long and careful definition of what is understood by a contract in Federal jurisprudence。 A grant made by the State to a private individual； and accepted by him； is a contract； and cannot be revoked by any future law。 A charter granted by the State to a company is a contract； and equally binding to the State as to the grantee。 The clause of the Constitution here referred to insures； therefore； the existence of a great part of acquired rights； but not of all。 Property may legally be held； though it may not have passed into the possessor's hands by means of a contract； and its possession is an acquired right； not guaranteed by the Federal Constitution。＇
＇Footnote j： A remarkable instance of this is given by Mr。 Story （p。 508； or in the large edition Section 1388）： 〃Dartmouth College in New Hampshire had been founded by a charter granted to certain individuals before the American Revolution； and its trustees formed a corporation under this charter。 The legislature of New Hampshire had； without the consent of this corporation； passed an act changing the organization of the original provincial charter of the college； and transferring all the rights； privileges； and franchises from the old charter trustees to new trustees appointed under the act。 The constitutionality of the act was contested； and； after solemn arguments； it was deliberately held by the Supreme Court that the provincial charter was a contract within the meaning of the Constitution （Art。 I。 Section 10）； and that the emendatory act was utterly void； as impairing the obligation of that charter。 The college was deemed； like other colleges of private foundation； to be a private eleemosynary institution； endowed by its charter with a capacity to take property unconnected with the Government。 Its funds were bestowed upon the faith of the charter； and those funds consisted entirely of private donations。 It is true that the uses were in some sense public； that is； for the general benefit； and not for the mere benefit of the corporators； but this did not make the corporation a public corporation。 It was a private institution for general charity。 It was not distinguishable in principle from a private donation； vested in private trustees； for a public charity； or for a particular purpose of beneficence。 And the State itself； if it had bestowed funds upon a charity of the same nature； could not resume those funds。〃＇
This provision appears to me to be the most serious attack upon the independence of the States。 The rights awarded to the Federal Government for purposes of obvious national importance are definite and easily comprehensible； but those with which this last clause invests it are not either clearly appreciable or accurately defined。 For there are vast numbers of political laws which influence the existence of obligations of contracts； which may thus furnish an easy pretext for the aggressions of the central authority。
Chapter VIII： The Federal Constitution … Part IV
Procedure Of The Federal Courts
Natural weakness of the judiciary power in confederations … Legislators ought to strive as much as possible to bring private individuals； and not States； before the Federal Courts … How the Americans have succeeded in this … Direct prosecution of private individuals in the Federal Courts … Indirect prosecution of the States which violate the laws of the Union … The decrees of the Supreme Court enervate but do not destroy the provincial laws。
I have shown what the privileges of the Federal courts are； and it is no less important to point out the manner in which they are exercised。 The irresistible authority of justice in countries in which the sovereignty in undivided is derived from the fact that the tribunals of those countries represent the entire nation at issue with the individual against whom their decree is directed； and the idea of power is thus introduced to corroborate the idea of right。 But this is not always the case in countries in which the sovereignty is divided； in them the judicial power is more frequently opposed to a fraction of the nation than to an isolated individual； and its moral authority and physical strength are consequently diminished。 In federal States the power of the judge is naturally decreased； and that of the justiciable parties is augmented。 The aim of the legislator in confederate States ought therefore to be to render the position of the courts of justice analogous to that which they occupy in countries where the sovereignty is undivided； in other words； his efforts ought constantly to tend to maintain the judicial power of the confederation as the representative of the nation； and the justiciable party as the representative of an individual interest。
Every government； whatever may be its constitution； requires the means of constraining its subjects to discharge their obligations； and of protecting its privileges from their assaults。 As far as the direct action of the Government on the community is concerned； the Constitution of the United States contrived； by a master…stroke of policy； that the federal courts； acting in the name of the laws； should only take cognizance of parties in an individual capacity。 For； as it had been declared that the Union consisted of one and the same people within the limits laid down by the Constitution； the inference was that the Government created by this Constitution； and acting within these limits； was invested with all the privileges of a national government； one of the principal of which is the right of transmitting its injunctions directly to the private citizen。 When； for instance； the Union votes an impost； it does not apply to the States for the levying of it； but to every American citizen in proportion to his assessment。 The Supreme Court； which is empowered to enforce the execution of this law of the Union； exerts its influence not upon a refractory State； but upon the private taxpayer； and； like the judic
