HKB
state officers, from the highest to the lowest, are in the same predicament; and that this circumstance does not, therefore, deprive them of the character of impartial and independent arbiters.
These observations receive confirmation from every recent decision of the supreme court of the United States, in which certain laws of individual states have been sustained, in cases where, to say the least, it was very questionable whether they did not infringe the provisions of the constitution, and where a disposition to construe those previsions broadly and extensively, would have found very plausible grounds to indulge itself in annulling the state laws referred to. See the cases of City of New York vs. Miln, 11th Peters, 103; Briscoe vs. the Bank of the Commonwealth of Kentucky*, ib., 257; Charles River Bridge vs. Warren Bridge, ib., 420.--*American Ed.]
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 Prosecutions of private Individuals in the federal Courts.--Indirect Prosecution in 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 is 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 judicial power of other nations, it is opposed to the person of an individual. It is to be observed that the Union chose its own antagonist; and as that antagonist is feeble, he is naturally worsted.