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s were bestowed upon the faith of the charter； and those funds consisted entirely of private donations。 It is true that the uses were in some sense public； that is； for the general benefit； and not for the mere benefit of the corporators； but this did not make the corporation a public corporation。 It was a private institution for general charity。 It was not distinguishable in principle from a private donation； vested in private trustees； for a public charity； or for a particular purpose of beneficence。 And the State itself； if it had bestowed funds upon a charity of the same nature； could not resume those funds。〃＇
This provision appears to me to be the most serious attack upon the independence of the States。 The rights awarded to the Federal Government for purposes of obvious national importance are definite and easily comprehensible； but those with which this last clause invests it are not either clearly appreciable or accurately defined。 For there are vast numbers of political laws which influence the existence of obligations of contracts； which may thus furnish an easy pretext for the aggressions of the central authority。
Chapter VIII： The Federal Constitution … Part IV
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 in 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。
But the difficulty increases when the proceedings are not brought forward by but against the Union。 The Constitution recognizes the legislative power of the States； and a law so enacted may impair the privileges of the Union； in which case a collision in unavoidable between that body and the State which has passed the law： and it only remains to select the least dangerous remedy； which is very clearly deducible from the general principles I have before established。 *k
＇Footnote k： See Chapter VI。 on 〃Judicial Power in America。〃＇
It may be conceived that； in the case under consideration； the Union might have used 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 afterwards 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 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。 *l 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。
＇Footnote l： See Kent's 〃Commentaries；〃 vol。 i。 p。 387。＇
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 constitutions is that they engender parties in the bosom of the nation which present powerful