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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 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
