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very clearly deducible from the general principles I have before established.[1]
It may be conceived that, in the case under consideration, the Union might have sued the state before a federal court, which would have annulled the act; and by this means it would have adopted a natural course of proceeding: but the judicial power would have been placed in open hostility to the state, and it was desirable to avoid this predicament as much as possible. The Americans hold that it is nearly impossible that a new law should not impair the interests of some private individual by its provisions: these private interests are assumed by the American legislators as the ground of attack against such measures as may be prejudicial to the Union, and it is to these cases that the protection of the supreme court is extended.
Suppose a state vends a certain portion of its territory to a company, and that a year afterward it passes a law by which the territory is otherwise disposed of, and that clause of the constitution, which prohibits laws impairing the obligation of contracts, is violated. When the purchaser under the second act appears to take possession, the possessor under the first act brings his action before the tribunals of the Union, and causes the title of the claimant to be pronounced null and void.[2] Thus, in point of fact, the judicial power of the Union is contesting the claims of the sovereignty of a state; but it only acts indirectly and upon a special application of detail: it attacks the law in its consequences, not in its principle, and it rather weakens than destroys it.
The last hypothesis that remained was that each state formed a corporation enjoying a separate existence and distinct civil rights, and that it could therefore sue or be sued before a tribunal. Thus a state could bring an action against another state. In this instance the Union was not called upon to contest a provincial law but to try a suit in which a state was a party. This suit was perfectly similar to any other cause, except that the quality of the parties was different; and here the danger pointed out at the beginning of this chapter exists with less chance of being avoided. The inherent disadvantage of the very essence of federal constitu-
- ↑ See chapter vi., on judicial power in America.
- ↑ See Kent's Commentaries, vol. i., p. 387.
