n the reasoning, as applied to "cases arising under trea ties made, or which shall be made, under the authority of the United States." Without this power, there would De perpetual danger of collision, and even of war, with foreign powers, and an utter incapacity to fulfil the ordi nary obligations of treaties. The want of this power was (as we have seen) a most mischievous defect in the Confederation; and subjected the country, not only to viola tions of its plighted faith, but to the gross, and almost proverbial, imputation of punic insincerity.

§ 315. 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. 66 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. 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 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 suits, in the courts of the United States, in this class of cases.

§ 316. 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 pow er 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, wher some subject, touching the Constitution, laws, or treaties, of the United States, is submitted to the court by a par1y, 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.

§317. 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; 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 labor, 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 labor may be due, in these, and many other cases, the question, to be judicially decided, would be a case arising under the Constitution. On 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 autho rity, 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. The same rea

Indeed,

soning applies to cases arising under treaties. wherever, in a judicial proceeding, any question arises, touching the validity of a treaty, or statute, or authority, exercised under the United States, or touching the construction of any clause of the Constitution, or any statute, or treaty, of the United States; or touching the validity

of any statute, or authority exercised under any State, ou the ground of repugnancy to the Constitution, laws, or treaties, of the United States, it has been invariably held to be a case, to which the judicial power of the United States extends.

§ 318. It has sometimes been suggested, that a case, to be within the purview of this clause, must be one, in which a party comes into court to demand something conferred on him by the Constitution, or a law, or a treaty, of the United States. But this construction is clearly too narrow. A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution, or a law, or a treaty, of the United States, whenever its correct decision depends on the construction of either. This is manifestly the construction given to the clause by Congress, by the 25th section of the Judiciary act, (which was almost contemporaneous with the Constitution,) and there is no reason to doubt its solidity or correctness. Indeed, the main object of this clause would be defeated by any narrower construction; since the power was conferred for the purpose, in an especial manner, of producing a uniformity of construction of the Constitution, laws, and trea ties, of the United States.

§ 319. Cases may also arise under laws of the United States by implication, as well as by express enactment; so that due redress may be administered by the judicial power of the United States. It is not unusual for a legislative act to involve consequences, which are not expressed. An officer, for example, is ordered to arrest an individual. It is not necessary, nor is it usual, to say, that he shall not be punished for obeying this orde His security is implied in the order itself. It is no unusual thing for an act of Congress to imply, without expressing, this very exemption from State contro. The collectors of the revenue, the carriers of the mail, the mint estab, lishment, and all those institutions, which are public in their nature, are examples in point. It has never beeu doubted, that all, who are employed in them, are protected, while in the line of their duty; and yet this protec

tion is not expressed in any act of Congress. It is incdental to, and is implied in, the several acts, by which hose institutions are created; and it is secured to the in dividuals, employed in them, by the judicial power alone; that is, the judicial power is the instrument employed by the Government in administering this security.

§ 320. It has also been asked, and may again be asked, why the words, "cases in equity," are found in this clause? What equitable causes can grow out of the Constitution, laws, and treaties, of the United States? To this, the general answer seems at once clear and satisfactory. There is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable, rather than of legal, jurisdiction, as the distinction is known and established in several of the States. It is the peculiar province, for instance, of a court of equity, to relieve against what are called hard bargains. These are contracts, in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law; yet there may have been some undue and unconscionable advantage taken of the necessities, or misfortunes, of one of the parties, which a court of equity would not tolerate In such cases, where foreigners were concerned on either side, it would be impossible for the Federal judicatories to do justice, without an equitable, as well as a legal jurisdiction. Agreements to convey lands, claimed under the grants of different States, may afford another example of the necessity of an equitable jurisdiction in the Federal courts. This reasoning may not be so palpable in those States, where the formal and technical distinction between LAW and EQUITY is not maintained, as in other States. where it is exemplified by every day's practice.

$321. The next clause, extends the judicial power "to all cases affecting_ambassadors, other public ministers, and consuls.” The propriety of this delegation of power to the National Judiciary will scarcely be questioned by any persons, who have duly reflected upon the subject. There are various grades of public ministers,

from ambassadors, (which is the highest grade,) down to common resident ministers, whose rank, and diplomatic precedence, and authority, are well known, and well ascertained, in the law and usages of nations. But whatever may be their relative rank and grade, public ministers of every class are the immediate representatives of their sovereigns. As such representatives, they owe no subjection to any laws, but those of their own country, any more than their sovereign; and their actions are not generally deemed subject to the control of the private law of that State, wherein they are appointed to reside. He, that is subject to the coercion of laws, is necessarily dependent on that power, by whom those laws were made. But public ministers ought, in order to perform their duties to their own sovereign, to be independent of every power, except that by which they are sent; and, of consequence, ought not to be subject to the mere municipal law of that nation, wherein they are to exercise their functions. The rights, the powers, the duties, and the privileges, of public ministers, are, therefore, to be determined, not by any municipal constitutions, but by the law of nature and nations, which is equally obligatory upon all sovereigns, and all states. What these rights, powers, duties, and privileges are, are inquiries properly belonging to a treatise on the law of nations, and need not be discussed here. But it is obvious, that every question, in which these rights, powers, duties, and privileges are involved, is so intimately connected with the public peace, and policy, and diplomacy, of the nation, and touches the dignity and interest of the sovereigns of the ministers concerned so deeply, that it would be unsafe, that they should be submitted to any other, than the highest judica ture of the nation.

§ 322. Consuls, indeed, have not in strictness a diplo matic character. They are deemed to be mere commercial agents and, therefore, partake of the ordinary character of such agents; and are subject to the municipal laws of the countries, where they reside. Yet, as they are the public agents of the nation, to which they belong and are often entrusted with the performance of very deli