ferent States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens, or subjects."— Constitution, art. 3, sect. 2, cl. 1.

It would seem a pretty fair deduction from the grand general principle of policy on which I have been insisting, that the designation "controversies between a State and foreign States, citizens, or subjects," should include criminal accusations by a State against a foreign subject, who pleads the laws of nations and the orders of his government. Civil suits by a State against aliens are triable in the national courts for the preservation of the national peace. Why should not criminal charges also between the same parties be so tried on the same policy? And if so, unless the preceding description cases arising under the Constitution, laws, and treaties of the United States" embraces and provides for them,why do they not fall under the denomination of controversies?

of "

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I concur, however, with the able and judicious chairman of the judiciary committee, [Mr. Berrien,] in not placing the bill upon that ground. I think, with him, it may be placed on far other and far clearer ground. Indeed, it is framed avowedly with reference to another principle of jurisdiction. At the same time that I say this, I beg to add that I do not mean to concede that the cases which are embraced in it are not controversies between a State and a foreign State or subject, within the very letter and the acknowledged spirit of this grant. Upon this point I neither affirm nor deny. I do not concede that "controversies" do not include criminal cases; because I would do nothing to weaken or bring into question any power of this government; and because even the hasty and inconsiderate concessions of debate may help, silently and irrecoverably, to change the Constitution. Doubtful, on the contrary, at least, it seems to me to be, whether criminal cases are not controversies, and were not meant to be comprehended in that term. Let me intimate the grounds of this suggestion very briefly, without pausing to attempt to enforce them. It is settled, and is admitted, that the term cases, in this part of the Constitution, "all cases arising under the Constitution, laws, and treaties of the United States," includes cases of a criminal as well as civil nature; but it is supposed that the

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term controversies" includes those of a civil nature only. There is, I know, an obiter dictum to this effect, of Mr. Justice Iredell, in the early and celebrated case of Chisholm v. State of Georgia, (2 Dall. 419.) Mr. Tucker intimates the same thing in a passage of his appendix to Blackstone's Commentaries, (1 Tucker's Black. Com. app. 420, 421;) and Mr. Justice Story silently records these opinions in a note, (3 Story's Com. on Constitution, 536,) without any expression of assent, however, to which his name would have lent an authority so commanding. Besides this, I find nothing on that side of the question.

Now, the word controversy, in its popular or its professional use, does not, I think, apply exclusively to civil disputes. It seems rather to have a wider and more flexible signification than the word case, which certainly includes criminal accusations. Judicial controversies are disputes, disagreements, differences between parties, respecting their legal rights and wrongs, wherein one controverts what the other alleges, and which are put in a form for judicial determination. These are judicial controversies. And does not an accusation of a State against a foreign subject, for an act done within its borders, which he asserts an authority to do under the laws of nations and the commands of his sovereign, come exactly within the terms of the definition? Is it the less truly a controversy because it relates to crime, or because one of the parties is a State and the other a man, - both standing, however, on the same plane of privilege in a court of law? Let me, without indecorum, remind you that the dictionaries — in illustration of one of the meanings of the word-refer to two verses in our translation of the Bible, a book which, more truly than Chaucer's poetry, may be called a "well of English undefiled;" and that in one of these it denotes a legal prosecution for crime, the parties to which are the righteous and the wicked, and which terminates in punishment by stripes; while in the other, in a still more awful sense, the Supreme Being is declared to have "a controversy with the nations."

Certain it is, I think, that, if the Constitution had intended by the term cases to include civil and criminal proceedings, and by the term controversies civil proceedings only, it would have

employed some qualifying and explanatory epithet or expression to convey that limitation of the sense. There is no such broad and recognized difference of signification between the words, standing alone, as to warrant the belief that the Constitution, distinguished always for its perspicuous, simple, and popular phraseology, could have expected or intended that they would be understood in so fine, far-sought, and yet so momentous a diversity of signification. This would be more like and more worthy the compilers of synonymes than the framers of a fundamental law, to be read by a whole people. The judiciary act, passed in 1789, carefully says, "controversies of a civil nature," where it means civil causes, acknowledging and feeling that the constitutional term controversies, standing alone, included a great deal more.

The truth seems, in short, to be, that, in their ordinary and their professional use, the words cases and controversies are coextensive, but that we employ case when we refer to the subject of the dispute, controversies when we refer to the parties. We speak of a painful controversy between a husband and wife and their friends, on a libel for a divorce; but we speak of a new case on the statute of frauds, or on the doctrine of presumption. And the Constitution adopts this general habit of our ordinary language in the clause which confers jurisdiction. But the very next clause, which distributes jurisdiction into original and appellate, is in these words:

"2. In all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make."

And here, you observe, the word cases is used to include all which, in the preceding clause, had been denominated both cases and controversies.

I propound it as a doubt, therefore, whether when you consider the ordinary import of the term itself; that it is used here without limitation or qualification; that the word cases, (with which this word certainly does not, in general speech, stand in any well-known contrast of sense,) in this same clause, includes criminal and civil suits; that the same reason

of policy which assigns civil controversies to the national tribunals would, with far more urgency, assign to them criminal controversies also; -I suggest a doubt, upon these considerations, whether the term does not cover the whole ground of this part of the bill. Certain it is, that, unless this description of prosecutions are within the preceding clause, "cases arising under the Constitution, laws, and treaties of the United States," they must be holden to be controversies between a State and foreigners, and thus, quacunque via datú, cognizable in the national tribunal.

But, Mr. President, on this question, listen to a witness of the age of the Constitution; listen to the "genuine information delivered to the legislature of the State of Maryland, relative to the proceedings of the general convention held at Philadelphia in 1787, by Luther Martin, Esq., Attorney-General of Maryland, and one of the delegates in the said convention." Mr. Martin, just returned from the convention, of which he had been an energetic member, in the presence of one or more of his colleagues in that body, in the presence of the house of delegates of Maryland, to which he was making an elaborate report of the deliberations and proceedings which had resulted in the Constitution, and an elaborate analysis of the Constitution itself, then and there employs this language:

"The inquiry concerning and trial of every offence against and breach of the laws of congress are also confined to its courts. The same courts, also, have the sole right to inquire concerning and try, every offence, from the lowest to the highest, committed by the citizens of any other State, or of a foreign nation, against the laws of this State, within its territory. And in all these cases, the decision may be ultimately brought before the supreme tribunal, since the appellate jurisdiction extends to criminal as well as to civil cases.' Yates's Minutes of the Federal Convention of

1787. 4 Elliot's Debates, p. 46.

He, then, certainly believed that "controversies" embraced criminal controversies. I know he opposed and dreaded the Constitution. I even admire, although I wonder at and disapprove, the solemn earnestness and energy of thought and expression with which he cautions the delegates of Maryland to dash to the earth the cup of poison which the convention had commended to their lips. But he was then a man, as I have always heard, of a most powerful and penetrating under

standing; trained by all the learning and by the long exercise of his profession, and of perfect integrity and honor. That he rightly comprehended the objects and the provisions of the judicial power would seem, in the highest degree, probable; that he would venture, the highest law-officer of Maryland, at the head of his profession, fresh from the sittings of the convention, in presence of his colleagues, in presence of the legislature, to misstate these objects and provisions, I do not believe. Certainly you cannot produce a particle of contemporaneous testimony in opposition to this, to be compared a moment with it for pertinence and for strength.

I understand Governor Randolph, speaking in the Virginia convention, to express the same opinion in other language.

"I presume, therefore, that treaties and cases affecting ambassadors and other public ministers, and consuls, and all those concerning foreigners, will not be considered as improper subjects for a federal judiciary."2 Elliot's Debates, p. 418.

To this construction I know there are grave objections. I feel and admit their force. As I do not place my main reliance, nor much reliance, upon it in support of the bill, I shall detain you upon them but a few moments.

It is said that the withdrawal from the States of the trial of crimes is a more extensive and more formidable invasion of the sovereignty of the States than the withdrawal of the trial of civil suits, and that this suggests a reason for so restraining the meaning of controversies as to exclude trials of crimes and include trials of contracts.

I answer, first, that the general principle settled by the convention warrants no such discrimination in favor of State sovereignty, or for any other reason, between civil and criminal litigation. That principle, you have seen, is, that your judicial power shall extend to all questions involving national peace and harmony. All questions; not part; not half; not those only quæ frequentius accidunt; not those by the trial of which you will least invade State sovereignty; but all. The object of the resolution adopting the principle was national harmony, not State sovereignty. That State sovereignty was to be invaded and restrained, was a thing determined on. It was just what the convention were engaged in doing; just what the people were engaged in doing, through and by the convention. They