distant day, this matter may become the occasion of negotiation with those governments whose subjects are interested in these debts. In such an event, the preliminary question would be, whether any courts of this country are open to foreigners seeking to recover their money of the States. As a general rule, the courts of the States cannot entertain a suit against the States. There are only three exceptions known to us, and those are the State of Mississippi, which allows the holders of her bonds to bring suits against the State in her own Court of Chancery, and the States of Maryland and Virginia, which, in some instances, have allowed suits against themselves, but always, we believe, by special laws. How far the case of Mississippi would come within the rule of international law which binds the claimant to seek for redress in the courts of the land where the wrong was done, we are not prepared to say. So far as we know, it would be a new case. The chancellor of Mississippi is elected by the people every six years. He is, therefore, appointed by, and directly dependent on, one of the parties to the suit, and the case has been prejudged by the legislature. Now, if the rule should apply at all, and the parties should be held bound to seek for justice at the hands of a judge thus situated, it seems clear, that the decision would be much more open to doubt than in ordinary cases where the foreigner sues a citizen. If the presumption, that justice will be done according to the law of the land, should exist, it would certainly be weak and easily removed, and would be quite as likely to lead to disputes and contentions as to settle them.*

It is manifestly of great importance to us to have the full benefit of the presumption, which, for the sake of peace, the law of nations raises in such cases. Without this presumption, the claim for redress must be made on the government of the United States, and the cases judged of and decided by the parties to the negotiation; after which, if the foreign government is not satisfied with the result, it has

The conduct of the courts of the States in reference to British debts was a fruitful source of controversy between England and this country in 1792, and it is notorious, that great amounts of those debts were not, and could not be, recovered, until after the establishment of the courts of the United States. See the correspondence between Mr. Jefferson and Mr. Hammond, the minister of Great Britain. Wait's Am. State Papers, 1789 to 1796. Ware v. Hylton, 3 Dal. R. 199. Elliot's Debates, 142-144, 282. VOL. LVIII. —No. 122. 20

With it, the

just cause for reprisals, and even for war. matter is first submitted to the highest legal tribunal, and the foreign government is bound to be satisfied with its decision, unless so palpably wrong, as to give rise to the belief that it was corruptly made. We have said, that the claim for redress must be made upon the United States; for we cannot entertain the least doubt, that the national government is as much responsible for injustice done to foreigners by the States, as by individuals or corporations. Foreign states can know only that sovereign which has the power to make war and peace, to negotiate and enter into treaties. They can no more have relations with a State, than with a county. If the wrong is done within the territory of the United States, the United States must answer for it.

But we believe our Constitution has not left us without the protection which is enjoyed by all other nations who have courts of justice open to foreigners seeking redress, and where they are bound to presume that justice will be done. The Constitution, as originally adopted, contained in Art. III. § 2, the following words; "The judicial power shall extend to controversies between a State, or the citizens thereof, and foreign States, citizens, or subjects." The eleventh article of the amendments declares, that "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." Thus the original provision, as to suits against one of the United States by foreign states, was allowed to stand. Mr. Chief Justice Marshall, in his very able opinion in the case of Chisholm v. The State of Georgia, has stated the reason of this provision in such a manner as renders it quite applicable to our present purpose. He says, the Constitution contained this provision, "because, as every nation is responsible for the conduct of its citizens towards other nations, all questions touching the justice due to foreign nations or people ought to be ascertained by, and depend on, national authority." There can be no doubt, therefore, that, by the very terms of the Constitution, a foreign state or sovereign may sue one of the United States in some court of the United States. Nor has the Constitution left it doubtful, or even left it for Congress to provide, which court it shall be; for it contains

the following words; "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."

We conceive, also, that a foreign state or sovereign may easily be placed in such a condition as to prosecute these claims. It is incident to the sovereign power, that it should be able to make itself the owner of such claims. The rules as to the purchase and sale of rights of action, which affect individuals, are not applicable to the sovereign. The law presumes, that the government of a country will not be guilty of champerty or maintenance. Under the common law, the king might take an assignment of a debt, and sue therefor in his own name. And we have no doubt, that the same law exists in all countries. It seems to follow, then, that, if the sovereign should take an assignment of a claim, and sue therefor in the court of a foreign country, the comity and respect due to the foreign sovereign would necessarily prevent the court from inquiring into the causes and motives of the assignment; especially in a country where the common law exists, which makes all debts negotiable between the sovereign and a subject or citizen. And if this motive were inquired into, it would appear, that the foreign sovereign had taken the assignment merely to discharge a duty to his subjects by affording to them a remedy for a supposed wrong.* Certainly it would not be a subject of complaint or regret on our part, that this course should be taken, and that the foreign sovereign should submit the question to the decision of our own highest tribunal, instead of resorting directly to negotiation. In the event of such a thing becoming necessary, we should look upon an application to the Supreme Court of the United States as not only practicable, but desirable; and we should feel thankful for the existence of that principle in the public law, and that wise provision in our own Constitution, which enable us to ask foreigners to seek for justice in that

* It has sometimes been suggested, in answer to the view taken by us, that the Judiciary Act has so limited the jurisdiction of the courts of the United States, that an indorsee or assignee of a chose in action cannot sue in those courts, unless the assignor or indorser could himself sue therein; but that limitation has reference only to suits in the Circuit and District Courts. It does not touch the original jurisdiction of the Supreme Court, which is conferred by the Constitution, and is not within the control of Congress.

high tribunal which was created to establish it; a tribunal known to the world as elevated far above all State biases and prejudices; whose members come together from the North and the South, from the East and the West, across distances wider than half of Europe, and listen to sovereign States, as they contest their claims to territory and jurisdiction; a tribunal which sits in judgment on the acts of the legislature of the nation, and decrees them to be valid or void; a tribunal which is our own ark of safety, and to which offended Europe may come confidently, and obtain such justice as war and reprisals never gave, and never can give.

We have now presented our views of this important subject. We fear, that intelligent men throughout the country have hitherto scarcely done their duty in regard to it. They have looked upon it as interesting only those States who are embarrassed by debts, and those which have taken false steps to escape from them. They have thought it a matter of national concern, only because it affects our character as a people. But they must no longer forget, that the rights of every honest man are violated by an unjust act of the government under which he lives. It has been thought to be one of the advantages of a free government, that the individual is not merged in the state; that each citizen is regarded and cared for, not merely because important to the state, but for the sake of his own welfare and happiness. For him, as a man, laws are enacted; for him rights exist; for him remedies are provided. He stands, before all tribunals, capable of claiming whatever is just. He means not to identify himself with any class, or community, or corporation. As a citizen, he has all the rights which can be had; and, among those rights, he has eminently that of requiring the government, of which he is a constituent part, to do nothing which shall stain his honor, or shock his sense of justice, or lessen his patriotism, or deprive him of his share of the glory of his country; and if any public act does this, he has as much right to feel aggrieved, as if his personal liberty were infringed. It is true, he walks abroad unharmed in his person; but a violent constraint has been put upon his love of justice. It is true, his house and land are untouched; but his country's glory, for which he would at any time have sacrificed them, has been squandered and lost. He still has a country; but that which made it lovely in his eyes has been defaced and destroyed.

Let every honest man, then, take care to do what in him lies to protect himself from this great wrong, and never rest, until the faith of his country has been redeemed, and its honor secured from reproach.

ART. VI. History of the Conquest of Mexico, with a Preliminary View of the Ancient Mexican Civilization, and the Life of the Conqueror, Hernando Cortés. By WILLIAM H. PRESCOTT, Author of the "History of Ferdinand and Isabella." New York: Harper & Brothers. 1843. 3 vols. 8vo. pp. 488, 480, and 524.

MR. PRESCOTT has given proof of moral courage, as well as literary industry, by the publication of a new and elaborate historical work, before the applause with which his history of Ferdinand and Isabella was received has "died into an echo." An author's former self is his own worst enemy, and the great success of a first literary enterprise is likely to paralyze rather than stimulate a highly sensitive nature, which fears censure more than it courts praise. A mind of this class shrinks from making a second effort, from a consciousness of the standard by which it will be tried, and of the comparison to which it will be subjected. He has more to lose and less to gain. The second book must be better than the first, in order to be considered as good; as the son of a great man must be a greater man than his father, to be esteemed equal to him. Mr. Prescott shows himself to be possessed of a mind of manly temper, in thus submitting to the judgment of the public a new work of essentially the same character as that which has given him so high a rank among the historians of the age. He has not been content to slumber upon his laurels, but has been toiling in those fields of research in which new ones are to be gathered, with as much ardor and industry as if his first crown were yet to be won. We are glad to see, that, in his case, the "noble rage" of the scholar is not chilled by the morbid fear of putting in peril the reputation which has been already gained, and that he does not let his armor rust ingloriously on the wall, because he has gained one victory.