CONSTITUTIONAL LAW.
BEING A VIEW OF THE
PRACTICE AND JURISDICTION
OF THE
COURTS OF THE UNITED STATES,
AND OF
CONSTITUTIONAL POINTS DECIDED.
BY THOMAS SERGEANT, ESQ.
SECOND EDITION, WITH ADDITIONS AND IMPROVEMENTS.
PHILADELPHIA.
P. H. NICKLIN AND T. JOHNSON — LAW BOOKSELLERS,
175 CHESTNUT STREET. 1830.
Eastern District of Pennsylvania, to wit: ss.
BE IT REMEMBERED, That on the thirty-first day of July, in the fifty-fifth year of the Independence of the United States of America, A. D. 1830, Philip H. Nicklin and Topliff Johnson, of the said district, have deposited in this office the title of a book, the right whereof they claim as proprietors, in the words following, to wit:
"Constitutional Law. Being a view of the Practice and Jurisdiction of the Courts of the United States, and of Constitutional points decided. By Thomas Sergeant, Esq. Second edition, with additions and improvements."
In conformity to the act of the Congress of the United States, entituled, "An act for the encouragement of learning, by securing the copies of maps, charts and books to the authors and proprietors of such copies during the times therein mentioned;" and also to the act, entitled, "An act supplementary to an act, entitled, ' An act for the encouragement of learning, by securing the copies of maps, charts and books, to the authors and proprietors of such copies during the times therein mentioned,' and extending the benefits thereof to the arts of designing, engraving, and etching historical and other prints."
D. CALDWELL, Clerk of the Eastern District of Pennsylvania.
THOMAS KITE, PRINTER.
PREFACE
TO THE SECOND EDITION.
IN the present edition, the writer has endeavoured to improve the work by the addition of cases decided since the former edition, and also of a considerable number previously determined: an Introduction has also been prefixed. He hopes he will have succeeded in rendering the treatise more useful to those who may engage in the investigation or study of the subjects it embraces.
PHILADELPHIA, July 31st, 1830.
PREFACE TO THE FIRST EDITION.
THE author of the following treatise believes its object and plan to be novel. He has met with no work, whence he could derive assistance. He does not doubt, that many imperfections may be found in it, which he has himself been unable to detect or remedy. The learned and candid reader will appreciate the difficulties attending the undertaking, and make every reasonable allowance.
Every American lawyer must feel the utility of reducing to system, the principles and practice of our National Jurisprudence, of tracing them up to their constitutional source, and of exhibiting, in a succinct manner, the general origin, and uniform harmony, of the whole. If the writer has succeeded in laying the foundation for a work of this kind, he will be satisfied; leaving to more competent hands, the completion of a task, which must greatly aid in the diffusion of knowledge, on subjects of the highest importance, and most extensive application.
PHILADELPHIA, November 11th, 1822.
CONTENTS.
INTRODUCTION.
National judiciary power exercised in the United States, from the settlement of the colonies, to the adoption of the present Constitution. page 1
CHAPTER I. Supreme Court — Organization. 19
CHAPTER II. Supreme Court — Original Jurisdiction. 23
CHAPTER III. Supreme Court — Original Jurisdiction — Practice. 29
CHAPTER IV. Supreme Court — Appellate Jurisdiction. 33
CHAPTER V.
Supreme Court — Writs of error to courts of the United States. 37
CHAPTER VI. Supreme Court — Appeals. 48
CHAPTER VII. Supreme Court — Writs of error to state Courts. 59
CHAPTER VIII.
Supreme Court — Opinions opposed in the Circuit Court. 68
CHAPTER IX.
Supreme Court — Appellate power — habeas corpus, &c. 71
CHAPTER X. Supreme Court — Writ of error — Practice. 77
CHAPTER XI. Supreme Court — Criminal Jurisdiction. 93
CHAPTER XII. Circuit Court — Organization. 95
CHAPTER XIII. Circuit Court — Original civil Jurisdiction. 103
CHAPTER XIV. Circuit Court — Removals from State Courts. 123
CHAPTER XV. Circuit Court — Mandamus. 128
CHAPTER XVI. Circuit Court — Criminal Jurisdiction. 129
CHAPTER XVII. Circuit Court — Appellate Jurisdiction. 134
CHAPTER XVIII. Circuit Court — Practice. 143
CHAPTER XIX. Circuit Court — Equity Jurisdiction. 180
CHAPTER XX. District Court — Organization. 185
CHAPTER XXI. District Court — Jurisdiction. 193
CHAPTER XXII. District Court — Criminal Jurisdiction. 236
CHAPTER XXIII. Territorial Courts. 237
CHAPTER XXIV. Attorney General and District Attorney. 240
CHAPTER XXV.
Marshal. 242
CHAPTER XXVI. Proceedings in Criminal Cases. 252
CHAPTER XXVII. United States Courts — Common Law Jurisdiction. 272
CHAPTER XXVIII. Jurisdiction of State Courts and Magistrates. 275
CHAPTER XXIX. Priority of the United States. 291
CHAPTER XXX. Constitution — Article I. 298
CHAPTER XXXI. Constitution — Article II. 368
CHAPTER XXXII. Constitution — Article III. 377
CHAPTER XXXIII. Constitution — Article IV. 386
CHAPTER XXXIV. Constitution — Article VI. 401
CHAPTER XXXV. Constitution — Article V. 414
CHAPTER XXXVI. Constitution — Amendments. 415
APPENDIX.
Fees. 421
Rules of Practice in Equity adopted by the Supreme Court. 427
TABLE OF CASES.
A.
THE ABBY, 208, 209, 210.
Abercrombie v. Dupuis, 114.
Adams v. Story, 323. 362.
Adeline, Schooner, 57. 229. 233.
L'Africain, Frigate, 307.
Aikin v. Dunlap, 292.
Alerta, 199,200.
Almeida, Joseph, case of, 281. 286.
American Ins. Co. v. Canter, 238.
Amiable Nancy, 202.
Anderson v. Dunn, 29. 73. 352,
353, 354.
Andrews v. Essex Ins. Co. 203. The Anne, 204. 209,210. Ann Schooner v. United States, 206. Anonymous, 167. 250. Anonymous e. Craig, 147. The Antelope, 423. The Apollon, 218. The Argo, 55, 56. 171. Argo v. Monteiro, 125. Arcambel v. Wilson, 58. The Ariadne, 167. L'Armistad de Rues, 199. Armstrong v. Carson's ex'rs. 391.
B.
Babcock p. Weston, 323, 324. Bailiff v. Tipping, 79. Banks P. Greenleaf, 152. Bank of Hamilon v. Dudley's lessee, 359.419.
United States c. Deveaux, 104,105. 113, 114.
Kentucky v. Wistar, 116.
Osborne c. Harper, 417. (See letter U.) Barton v. Pettit, 76. 148. Beach v. Woodhull, 357. Beale v. Thompson, 172. Beano. Smith, 116, 117. Beardsley v. Torrey, 126. Bello Corunnes, 200. 239. 406. The Betsy, 196.
Betts P. Deat% 392. Biddleexparte^ll4. 149. Bingham P. Morris, 83.
p.Cabo$*5. 114. Blackwell v. Patten, 78. Elaine v. Ship Charles Carter, 48. Blair v. Miller, 81, 82. v. Williams, 365. Blount's case, 301. 376. Bollman and Swartwout, exparte,
29. 32. 73, 74. 242. 254, 255.
259. 268. 352. 379. 381, 382.
389. 393.
Bowne's lessee P. Arbuckle, 112. Bolina Schooner, 208, 209. 214. Bolton's case, 333. Bosbyshell P. Oppenheimer, 114.
118.
Bent V. Chapman, 43. Brown P. United States, 193. 197.
221. 330.
v. State of Maryland, 306. v. Coppin &, Wise, 126. e. Van Braam, 90. 146. Browne's lessee*. Galloway, 171.
392.
Browne v. Strode, 114, 115. Browderp. M'Arthur, 41. 52. 66,
86.
Buckner p, Finley, 118. 394. Buckwalter v. United States, 281. Buddicum v. Kirk, 170. Buel v. Van Ness, 60, 61, 62. 67.
78.
Bullard v. Bell, 116. Burford, ex parte, 74. 76. 255. Burke, v. Trevitt, 202. 210. 214,
215. 218. 231. 250. Burr, ex parte, 75.
C.
Cabrera, ex parte, 142. Calder P. Bull, 357,358. 366.403. CaldwellP. Jackson, 92. The Caledonian, 209.
Campbell v. Claudius, 150. 152. 391.
v. Gordon, 317, 318. v. Morris, 393. Cameron v. M'Roberts, 171. Capron v. Van Norden, 43. 114. Carey v. Gobbet, 124.126. The Caroline, 57. 206. Cassius, 198. Catlett v. Brodie, 78. Catharine, Schooner, v. U. States,
85.
Chamberlain v. Chandler, 202. Chappedelaine v. Dechenaux, 113
115.117.
Chesapeake Ins. Co. v. Stark, 88. Childress v. Emory, 113. Chirac v. Chirac, 309. Chisholm v. State of Georgia, 31,
32. Clark, Elijah, case of, 321.
v. Bezadone, 38. Clerke v. Harwood, 91. Cohens v. Virginia, 25. 27, 28. 34. 45. 61. 66, 67. 74. 110. 276, 277. 301. 348. 401. 403. 415. 417.
Collet v. Collet, 308. Colson v. Lewis, 127. The Collector, 52. 139. 250. Columbian Insurance Co.v. Wheelwright, 41. 47.
Commonwealth v. Binns, 305. v. Bussier, 373. V. Clary, 350. v. Freely, 280. v. Harrison, 286. v, Holloway, 281.
285. 397, 398. v. Kosloff, 27. 33.
94. 225. 274. v. Murray, 285. v. Schaeffer, 274. v. Sutherland, 305. v. Young, 349,350.
399.
Conn v. Penn., 50. Consul of Spain v. Consul of Great
Britain, 409. Cooke v. Woodrow, 46. Cooper v. Telfair, 356. 366. 403. Corporation of New Orleans V. Winter, 111.
Corp v. Vermilye, 125. Cotton v. Wallace, 57, 58. Course v. Stead, 46.53. 78. 87.115. Craig v. Brown, 388, 389, 390. Crittenden v. Jones, 364. Cunningham v. Otis, 170.
D.
Dartmouth College v. Woodward,
360. 362. 403. Den v. Wright, 106. Dexter v. Smith, 117. Devereaux v. Marr, 70. Dewhurst v. Coulthard, 76. DeLovioi-.Boit,2,3.193.202,203. Diggsr. Wolcott, 180. The Divina Pastoria, 57.206. 230. Dodge v. Perkins, 181. Donaldson u. Harvey, 364. The Dos Hermanos, 50. Downing u. Perkins, 296, 297. Doe v. Babcock, 110. 126. Drummond's adm'rs. v. Magru-
der, 389.
Dugan v. United States, 108. Dunlap v. Sletson, 184. Durousseau u. United States, 34. 38. 45. 48. 59. 222.
E.
Edme, ex parte, 288. The Edward, 57. 206. Emory v. Greenough, 323. Emily & Caroline, 206, 207. Estrella, 199. Evans v. Bollen, 107.
V. Eaton, 44. 172. Exchangee. M'Fadden, 93. 198.
F.
Fairfax's ex'r. v. Fairfax, 80. Farmers & Mechanic's Bank e.
Smith, 362. 403. Faw v. Roberdeau's ex'rs, 43. Fennimore v. United States, 80. 82. Ferguson, matter of, 284.
v. Harwood, 388. Field «. Milton, 79. o. Gibbs, 392.
Findlay o. Ship William, 218. Fisher v. Consequa, 120. Fitzsimmons c. Ogden, 76. Flanders 0. ^Etna Insur. Co. 120.
Fletcher e. Peck, 26. 359. 403. La Forestiere, case of, 318. Forsey v. Cunningham, 6, 7. Foster c. Nielsen, 406. Fowler c. Lindsay, 25, 26. 76. 167.
G.
Gale v. Babcock, 110. Gatnmel v. Skinner, 232. Gelstono. Hoyt,61. 210,211, 212.
412.
Georgia v. Brelsford, 171. 403. The General Smith, 214. Geyger's lessee v. Geyger, 157. Gibbons v. Ogden, 51. 306. 308. Gibson c. Johnson, 124, 125. Gilchrist, collector of Charleston,
ex parte, 128. Gill v. Jacobs, 153. Glasscock v. Steen, 364. Glass v. Schooner Betsy, 193, 194.
199.
Glen v. Hodges, 397, 398. Glenn v. Humphreys, 153. Golden v. Prince, 151. 323, 324.
364. Gordon v. Caldcleugh, 62.
v. Lowther, 6. Grade o. Palmer, 119. Graham, ex parte, 120. Grange, Ship, 219. Grayson 0. State of Virginia, 54. Green v. Sarmiento, 324. 391.
v. Biddle, 357.359. 361,362. v. Watkins, 84, 164. Griffith's lessee v. Evans, 392. Grimballc. Ross, 364. The Grotius, 55. 139. Guppy c. Brown, 170.
H.
Hallet 0. Novion,201. Hamilton v. Moore, 78. 81. Hampton 0. M'Connell, 391. Harmony, Schooner, 139. Harrison v. Rowan, 49. v. Sterry, 295. The Harrison, 56, 57. Hatch c. Eustis,164, 165. Haytono. Wilkinson, 152. Hazlehurst v. United States, 84. Hayburn's case, 75. 100. 402. Hepburn v. Elzey, 111.
Henderson 0. Moare, 42.
Hickie 0. Stark, 64.
Hills V. Ross, 48.
Himely.,0. Rose, 52.
Hodgson!!'' Bowerbank, 104. 115.
403.
Hollen, Brig, and cargo, 139. Hollingswot^lc. Duane, 167.
*^ Adams, 120. 125. wFirginia, 25, 414. Holmes v. Lansing! 364. Hope Ins. Co. v. Boardman, 113,
114.
Hopkins », Lee, 392. ' Hoppet, Schooner, and cargo, 206. Houston c. Moore, 62. 91.130,131.
276, 277, 278, 279. 309. 333.
352. Hudson v. Guestier, 88. 136.
v. Smith, 86. Huger v. State of South Carolina}
32, 32.
Hugh v. Higgs, 392. Hulscamp 0. Teel, 106. Hunter 0. Fairfax's lessee, 86. Hurst's case, 163. Hylton v. United States, 305. 401.
I. J.
Jackson 0. Chew, 149. v. Row, 280. v. Stiles, 122.
Jackson's lessee v. Burns, 290.322. James Wells, Brig, 55. Janney v. Columbia Ins. Co. 308. Jefierson, Thomas, steam boat, 197. Jennings v. Carson, 139. 194. 213,
214. 230.
0. Brig Perseverance, 4 9. 57, 58. 90.
Jerusalem, 203, 204. 213. 307. La Jeune Eugene, 234. Inglee 0. Coolidge, 43. 64, 65. 91. Invincible, 198. 231, 232. Jones 0. Brown, 149. 0. Maffet, 388. Jeoffry's case, 6.
K.
Kearney, ex parte, 29. 40. 72, 73. Keene v. United States, 208. Kempe's lessee e. Kennedy, 104, 105.
Ketland v. The Cassius, 207. Kibbe v. Kibbe, 392. Kilburn v. Woodworth, 392. Kirkpatrick v. White, 113. Kneass v. Schuylkill Bank, 175. Knoxu. Summers, 154.
Lanning's lessee v. Polph, 107. Lanusse v. Barker, 65. 76. 88. Lapsley v. Brasbear, 365. Lee v. Ogle, 43. Lewis, ex parte, 166. The Little Joe, 3. Little v. Bareme, 218, 231, 375. Liter v. Green, 42. 106. Livingston v. Dorgenois, 40.75.198. c. Jefferson, 118. v. Maryland Ins. Co. 88. u.VanInghen,105,122. 182. 307. 329. 394. Lockington's case, 67. 285. 287. Lockington v. Smith, 368. Locke v. United States, 217. Logan v. Patrick, 119. 180. The London Packet, 56. Loughborough v. Blake, 299. 306.
348. 355. 401. Loyd v. Alexander, 79, 80.
M.
Macker's heirs «. Thomas, 165. Mandeville v. Wilson, 42. Manhardt v. Soderstrom, 225. Manro v. Almeida, 228. 231. 234. Maisonnaire v. Keating, 201, Maley o. Shattuck, 217. 231. 234. Marbury «. Madison, 23. 28.33.75.
160. 275. 370. 372. 401, 402. Marine Ins. Co. v. Hodgson, 42.
175.
The Mariana Flora, 67. Marshall, Humphrey, case of, 300. The Mary, 213.
Martin i>. Hunter's lessee, 41. 52. 62, 63, 64. 66, 67. 79. 81. 194. 201, 202. 275, 276, 277. 352. 401. 404.
Martin v, Mott, 333. 412. Mason v. Vaughan, 6.
i>. Ship Blaireau, 202. v. Haile, 364. Massie v. Watts, 184. Matthews v. Zane, 64,
Mayhew u. Thatcher, 146. 392. Maxfield'slessees. Levy, 104. 112. M'Clung D. Silliman, 41.63, 64. 89.
128. 287.
M'Donough «. The Mary Ford, 52. M'lntirei). Wood, 104. 128. M'Kim v. Voorhies, 70. 288. M'Cullough v. State of Maryland, 86. 275. 351, 352, 353, 354. 401. 403, 404. M'Knight e. Craig's adm'rs, 90,91.
184.
M'Cormick v. Sullivan, 105. M'Lellan v. U. States, 138,139. M'Farlane o. Griffith, 148. M'Coul«. Lecamp, 165. M'Donough v. Dannery, 201. M'Lean v. Rankin, 295. M'Millan «. M'Niel, 361. 364, 365.
403.
The Merino, 206. Meade's case, 333. Miller o. Nichols, 64,65. Mills v. Duryee, 390, 391, 392. Mima v. Hepburn, 42. 167. 264. Montgomery B. Hernandez, 65. Montaletv. Murray, 84. 90. 114.
117.
The Monte Allegro, 251. Moodie v. The Betsy, 199. v. Ship Amity, 409. Morgan's heirs v. Morgan, 112. Moss v. Riddle, 42. Mossman v. Higginson, 87. 115.
124. 403.
Moxen «. Brigantine Fanny, 219. Mumford D. Mumford, 116. Murray v. The Charming Betsey,
217, 218. 231. 321. v. M'Carty, 394.
N.
Nathans v. Commonwealth of Virginia, 18.
Nelson v. United States, 141. 170.
New Jersey v. Wilson, 360. 403.
Newman, ex parte, 317.
New York v. Connecticut, 25, 26. 180, 181.
O.
The Octavio, 205. Oguen v. Gibbons, 308.
Ogden e. Saunders, 362. 367.
Ogle v. Lee, 69.
Olney v. Arnold, 61.
Osborn v. United States Bank, 27.
105. 401. 404. 417. Oswald v. State of New York, 31.
243.
Otis v. Walker, 44. 88. Owens v. Hannay, 82. 116. Owings v, Norwood, 63. 402.
P.
Palmer c. Allen, 148. Parsons v. Barnard, 122-. Patterson v. U. States, 125.143. Pawlet, town of, v, Clark, 127.360. Penhallow v. Doane's adm'rs, 8, 9.
43. 49. 57. 193, 194. Percival v. Hickey, 203. People v. Godfrey, 349. 399.
v. Lynch, 349. 383. Pepoon v. Jenkins, 390. Peyton v. Brooke, 85. Phelps v. Holker, 392. The Pizarro, 55. Plummer v. Webb, 202. Polk v. Wendell, 149. Pollard v. Dwight, 21. 101. 120.
125. 175. Pool and others, ex parte, 282. 287.
307. 378. Postmaster General v. Early, 107.
224.
Prescott, ex parte, 186. Princes. Bartlett, 294. Privateer Montgomery v. Schooner
Betsey, 138.
R.
Ramsey v. Allegre, 204. Randolph v. Donaldson, 154, 248. Ray v. Law, 50, 61. Read o. Bertrand, 111. Reed v. Chapman, 152.
e. Emory, 297. Renner v. Marshall, 146. Reily v. Lamar, 50. Respublica v. Cobbett, 94.126.
c. De Longchamps, 16. Richmond, Ship, v. U. States, 209. Riddle c. Mandeville, 89. Rhodes, case of, 281. 284. Roberts, Emanuel, case of, 283.
Rodford e. Craig, 84.
Robbins, Jonathan, case of, 368.
409. 412.
Robinson c. Campbell, 150. Ross i>. Bittenhouse, 10. The Rovfflf, 209. Rush v. Cothett, 124.126.
v. Parker, 47. Rutherford «. Fisher, 40.
S.
The Samuel, 65. 205, 206, 207. 234.
The Sandwich, 193.
The San Pedro, 49, 50.138.
The Santa Maria, 52. 57,58.
Santissima Trinidada, 199. 819.
The Sarah, 5. 221. 322. 337.
Satterlee v. Matthewson, 358.
Savage v. Steamboat Buffalo, 195.
Schooner Adeline, 54.
Rachel v. U. States, 52.
Sere o. Phot, 116, 117. 400.
Sergeant v. Biddle, 55. 170.
Elizabeth, ex parte, 285.
Seymour v. Ellison, 305.
Sheehy c. Mandeville, 88.175.
Shepherd c. The Commonwealth, 305.
Shecklerc. The Geneva Boxer, 195.
Shirras v. Craig, 101.
Ship Societe, 56.
Shute 0. Babcock, 110.
v. Davis, 110.112. 119.
Skillern's ex'rs v. May's ex'rs, 89.
Slocum v. Pomeroy, 88.
c. Mayberry, 210,211.
Smith o. The Delaware Ins. Co. 44. i>. Maryland, 63. John, case of, 302,303.376.
Society &c. v. Wheeler, 367.
South Carolina, State of,v. State of New York, 895.
Southwick v. Postmaster General, 39.
Spring c. South Carolina Insurance Company, 52.
Stark 0. Chesapeake Ins. Co, 817.
Stearns c. Berrett, 137. 226.
Stewart v. Laird, 100,101. v. Nigh, 84.
Stoddart v. Smith, 405.
Strawbridge v. Curtis, 111.
Stoughton o. Taylor, 116.19&.323.
The St. Lawrence, 129.
The St. Jago de Cuba, 204.
Sluart v. Laird, 378.
Sturges v. Crowninshield, 322, 323.
361. 403. Sullivan v. The FidtaB Steamboat
Company, 114. Symes's lessee «7.|evine, 171. The Sybil, 213.233. Sweers's case, 16.
T. Talbot*. Commanders &c. of three
brigs, 15. 199. v. Jansen, 199. 319, 320. *. Seeman, 217. 330. Terrett v. Taylor, 360. 463. Thatcher v. Powell, 149. Thirty hhds. of sugar, o. Boyle, 230. Thomas's lessee v. Newton, 113. Thomas Jefferson, Steamboat, 197. Thomas Gibbons, 369. Thelusson,v. Smith, 294, 295. Tucker u. Oxley, 43. Town of Pawlet o. Clark, 403. Turner c. Bank of North America,
104. v. Enrille, 114,115. 117.
U.
U. States ex parte, 100. U. States v. Bright, 10.194. 375.
418.
v. Barker, 39. 92. v. Bainbridge, 380. v. Brig Union, 47. 53. e. Barney, 110. 326. v. Bevans, 194.274. 333.
343, 344. 352. v. Betsey &. Charlotte,
205. 207. 221. 234. v. Brig Ann, 208. v. Bryan & Woodcock,
292. 354. 358. v. Bladen, 345, 346. r. Burr, 74. 143. 148. 160,161, 162. 243. 248.254.255, 256,257. 259, 260. 262,263, 264, 265,266, 267,268,269, 270. 274. 379, 380,381, 382, 383. 385. 38Q. U. States e. Cook, 136. v. Clark, 270.
U. States v. Campbell, 280.
v. Caldwell, 158. 162. v. Cooper, 158. V.Cornell, 102.132,133.
264, 265. 350. v. Coolidge, 274. V. Crosby, 399. v. Daniel, 68. 70. v. Dodge, 279. v. Evans, 42. v. Fisher, 291, 292. 351,
352. 354.
v. French, 133.154. v. Furlong, 334. 17. Fries, 262. 265. 351.
380. 382. 385. V. Goodwin, 39. 51. v. Gordon, 39. v. Giles, 107. 245, 246. v. Green, 118. v. Gill, 274. v. Gillies, 320. v.Griffin &Brailsford,334. v. Gay, 217. v. Gurnet, 207. v. Griffin, 342. v. Hudson & Goodwin,
29. 274. v. Hooe, 49. 91. 291.
294. v. Hamilton, 132. 257.
271. 345, 346. v. Hare, 261. 328. v. Hart, 328. 17. Hoar, 289. v. Howland, 150. v. Holmes, 334.336,337. v. The Insurgents, 104.
132. 261. 266. v. Johns, 263. 387. v. Jones, 335, 336. 338.
340.
v. Klintock, 335, 336. v. Keefe, 346. v. King, 296. 17. Kennan, 107. v. La Vengeance, 40. 92.
94. 205. 207. v. Lancaster, 70.95.101.
135.
f. Lawrence, 75. v. Lathrop, 280. v. Mitchell, 380. 384.
U. States 17. Moore, 34.40. 69.67.
94. 129. 348. 378. v. Mann, 129. 208. 221,
222.
t>. M'Gill, 343. v. M'Dowell, 44, 45. 17. Ortega, 26. 28. v. Peters, 10. 94. 194.
198, 199. 289. 290.
414. 416. 17. Peggy, Schooner, 51.
357. 405. 410. 412. v. Palmer, 333.335.337.
341. 412.
17. Porter & Wilson, 328. v. Pirates, 337.338. 340. 17. Parker, 147. 17. Porter, 265. 1?. Passmore, 274. 17. Ravara, 27. 94. 129.
225. 273. 17. Riddle, 207. 17. Ross, 334, 335. 17. Robinson, 335. 17. Schooner Peggy, 51.
357. 405. 410. 412. v. Simons, 40. 17. Smith & Ogden, 70.
160. 267.
17. Sawyer, 136, 137. u. Smith, 333. 342. 345.
401.
t>. Stewart, 257. 266. v. Sally of Norfolk, 207. 17. Sharp, 345, 346. 17. Tyler, 130. 222. «. Ten Brock, 39. 76.
136.
v. Tally & Dalton, 340. v. Vigol, 380. 17. Villatto, 309. 17. Wood, 129, 328. v. Williams, Brigantine,
306. 356. 403. 17. Wiltberger, 274. 340.
347. 384. i-.Wonson, 136,137,138.
150.
17. Worral, 69. 273. 17. Williams, 69.320.406. v. Weeks, 38.
U. States Bank v. Planter's Bank, 113.
U. States Bank v. Halsted, 143, 144. 355.
See letter B.
V.
Vanhorn's lessee v. Dorrance, 357,
358. 36ft,, Van Ness u. Buel, 12. 60, 61. 62.
67. 78. Van Reimsdyke £ Kane, 324.
W.
Ware 17. Hylton, 357. 403. 405, 406. 410. 412.
Watts D. Massie, 184.
Waymant7. Southard, 69.145.148, 149. 355.
Wallen v. Williams, 89. 183.
Walden v. Craig, 42.
Welch 17. Mandeville, 42. 80.
Weston 17. City Council of Charleston, 61. 404.
West v. Barnes, 77.
Westcott's lessee v. Inhabitants of Fairfield township, 111.
Westcott 1?. Bradford, 138.
White v. Fenner, 110.
Whelan v. United States, 205.
Wilson v. Codman's executors, 43. 164.
Wilson 1?. Daniel, 41. 45, 46. 79. 81.
Wilson 17. Mason, 33, 31. 44. 89.
Wiscart 17. Dauchy, 34. 49. 51.
Wise t?. Columbia Turnpike Company, 46.
Wise v. Withers. 378.
Williams 17. Kincaid, 46. 81.115. 17. Norris, 65.
William, Ship, 219.
Willing 17. Bleeker, 296.
Willings i>. Consequa, 171.
Willard 17. Dorr, 149.
Winchester 17. Jackson, 91.
Wood, ex parte, 226.
17. Wagnon, 114. 17. Little, 80, 81.
Woods 17. Young, 42.
Woodruff 17. theLeviDearborn,204.
Worthington v. Masters, 279.
Wright 17. Wells, 124. v. Deacon, 398.
Wyoming Controversy, 15.
INTRODUCTION.
NATIONAL JUDICIARY POWERS EXERCISED IN THE UNITED STATES FROM THE SETTLEMENT OF THE COLONIES TO THE ADOPTION OF THE PRESENT CONSTITUTION.
The states of which our union was at first composed, during the period antecedent to the adoption of the constitution of the United States, while colonies of the British empire, and while connected together, at first by the Congress, and afterwards by the articles of the Confederation, exercised within their respective limits the main portion of the judicial authority of the country, through the medium of tribunals constituted by themselves, and governed by the common law, the principles of equity, their own acts of assembly and usages, and such British statutes as had been extended to, or adopted by them. But during this period there were judicial controversies over which the colonial or state courts did not entertain jurisdiction at all, or entertained it in subordination to, or by delegation from the national authority residing in a power supposed to be the depository of a common interest, and possessing a general jurisdiction.
This period may be divided into three portions: — 1. The government and jurisdiction of the crown of England began with the settlement of the colonies, and continued until the fifth of September, 1774, when a Congress first met to consider of the public grievances,
and gradually prepared for, and repelled hostilities. At this era the revolution commenced
2. The government by a Congress continued till the first of March, 1781, when the articles of confederation were finally ratified.
3. On the fourth of March, 1789, the articles of confederation were superseded by the adoption of the present constitution.
It is proposed to consider the subject under these three divisions.
I. Of the period that elapsed while the colonies were dependent on the crown of England.
During the period antecedent to the revolution, courts of vice admiralty were established in some, and probably in all of the states by the crown of Great Britain; in some instances by a right reserved in their charters, and in others without. The nature and extent of their jurisdictions depended on tho commissions of the crown, and acts of Parliament conferring additional authorities. The commissions of the crown gave the courts which were established a most ample jurisdiction over all maritime contracts, and over torts and injuries as well in ports as upon the high seas; and acts of Parliament enlarged or rather recognised this jurisdiction by giving or confirming cognisance of all seizures for contraventions of the revenue laws.(a)
(a) Be Lovio v. Boit, 2 Gall. 470. In the charter of Massachusetts, in 1692, there is an express reservation of the exclusive right in the crown to establish Admiralty courts by virtue of commissions issued for this purpose. Ib. No such reservation, however, is contained in the charter of William Penn, granted the fourth of March, 1600. On the contrary, it gives to William Penn and his heirs, their deputies and lieutenants, power to appoint and establish any judges and justices, magistrates and other officers whatsoever, for what causes soever, (for the probates of wills, and lor the granting of administrations) with what power soever, and in such forms as to them should seem most convenient: and by judges by them delegated to award process, hold pleas, and determine all actions, suits, and causes whatsoever, as well criminal as civil, real, personal and mixed, &c. sec. 5. By a subsequent part of the charter, William Penn, his heirs or assigns, were made personally responsible for any misdemeanors committed or permitted by them against the laws of trade and navigation, and subjected to forfeiture of the charter for not paving the damages awarded by the courts of Westminster. sec. 14. "
A court of vice admiralty was, notwithstanding, established at an early date, tor the province of Pennsylvania, and the territories or counties of
In England the Court of Admiralty never possessed any jurisdiction in revenue causes; that was appropriated by the common law to the court of Exchequer. But the vice admiralty courts in this country when colonies, and in the West Indies, obtained, by the provisions of the statute of 12 Car. 2, commonly called the navigation act,
New Castle, Kent, and Sussex, on the Delaware. It existed in 1703, 1 Proud's Hist. Penn. 406, and continued till the revolution. I have perused the records of this court from the year 1735 to the year 1746, in the course of which time there were three different commissaries or judges of the court, which was held at Philadelphia. They were commissioned by the crown, under the great seal of the High Court of Admiralty of England, but the commission itself 1 have not met with. During the vacancies that occasionally occurred, the proceedings were carried on in the name of the Lords Commissioners for executing the office of Lord High Admiral of England. Brown, in his Civil and Admiralty Law, says, that all the powers of vice admiralty within his majesty's dominions are derived from the High Admiral, or the Commissioners of the Admiralty of England, as inherent and incident to that office. Accordingly, by virtue of their commissions, the Lords of the Admiralty arc authorized to erect courts of vice admiralty in North America, the West Indies, and the settlements of the East India Company. 2 Bro. Civ. and Ad. Law.
It is presumed, says Judge STORY, in the note to his learned opinion in De Lovio v. Boit, that the commissions are usually in the same form. One of the latest is to the governor of the royal province of New Hampshire in 6 Geo. 3, (1766.) It authorises him "to take cognisance of, and proceed in all causes civil and maritime, and in complaints, contracts, offences, or suspected offences, crimes, pleas, debts, exchanges, actions and demands, accounts, charter parties, agreements, suits, trespasses, inquiries, extortions and demands, and business civil and maritime whatsoever, commenced or to be commenced between merchants, or between owners and proprietors of ships and other vessels, and merchants, or others whomsoever, with such owners and proprietors of ships, and all other vessels whatsoever, employed or used within the maritime jurisdiction of our vice admiralty of our said province, &c. or between any other persons whomsoever, had made begun or contracted for any matter thing cause or business whatsoever, done or to be clone within our maritime jurisdiction aforesaid, &c. &c. and moreover in all and singular complaints contracts agreements causes and business civil and maritime to be performed beyond the sea or contracted there, however arising or happening," with many other general powers. And it declares the jurisdiction to extend "throughout all and every the sea shores, public streams, ports, fresh waters, rivers, creeks, and arms as well of the sea as of the rivers and coasts, whatsoever of our said province," &c. In point of fact the vice admiralty courts of Massachusetts, before the revolution, exercised a jurisdiction far more extensive than that of the admiralty in England. De Lovio v. Boit, 2 Gall. 470, 471, note. See also the Little Joe, Stewart's Ad. Reps. 394.
The commission to the governor of New Hampshire above mentioned may, perhaps, be deemed an extension of the powers of the courts of
and of 7 & 8 Will. 3, c. 22, a jurisdiction in revenue causes totally foreign to the original jurisdiction of the Admiralty and unknown to it; though it was held that appeals lay from them in such causes to the Admiralty in England. (6) In questions of prize in the vice admiralty courts an appeal lay to the commissioners of appeals consisting
vice admiralty beyond former precedents. For we find the Congress of 1774 and 1775, on repeated occasions, complaining of these extensions by the crown, in order to enforce the obnoxious statutes passed to impose duties for the purpose of raising a revenue in America. The declaration and resolves of Congress of the 14th October, 1775, mention, among other grievances, that the British Parliament had extended the jurisdiction of the courts of Admiralty, not only for collecting the said duties, but for the trial of causes merely arising within the body of a county, 1 Journ. Cong. 27, and that the acts of 4 Geo. 3. c. 15, and c. 34, 5 Geo. 3. c. 25, 6 Geo. 3. c. 52, 7 Geo. 3. c. 41, and c. 46, and 8 Geo. 3, extended the power of the Admiralty courts beyond their ancient limits. ib. 30. See also ib. 41. 47. In the address to the inhabitants of the colonies, of October 21st, 1774, it is stated, that in the year 1768 a statute was made to establish courts of Admiralty and vice admiralty on a new model, expressly for the end of more effectually recovering the penalties and forfeitures inflicted by acts of Parliament formed for the purpose of raising a revenue in America. ib. 48. See also ib. 51. 190. By the records of the vice Admiralty Court of Pennsylvania, &c., from 1735 to 1746, before referred to, it appears, that the business of the court was inconsiderable in amount. It consisted of proceedings by the collector of customs by information against vessels and goods for breaches of the acts of Parliament relating to the revenue: libels for seamens' wages: orders for surveys of damaged vessels and goods, and of wrecks, and appraisement thereof, with power to the commissioners appointed to adjust the salvage in cases of wreck: records of protests: and, towards the end of the time, registers of letters of marque granted by the governors, and prize proceedings against vessels captured from the French and Spaniards. There is one proceeding to authorize persons to take an inventory of the effects in a vessel, the master of which was drowned in the Delaware after arrival, and one other on a bottomry. It may be remarked that although the proceedings are strictly formal, no instance appears of an answer or claim by a defendant or claimant on oath or affirmation.
(6) 2 Bro. Civ. and Ad. Law, 491, yet the extent of the jurisdiction of the Admiralty courts in the colonies seems to have been, for some time, a subject of considerable discussion and difference of opinion in England. In Chalmers's collection of the opinions of eminent lawyers on various points of jurisprudence, chiefly concerning the colonies, fisheries, and commerce of Great Britain, published at London in 1814, there are several opinions to be found on this subject. In July, 1702, Sir John Cooke, Advocate General, gave an opinion, that penalties and forfeitures under the act of navigation, 12 Car. 2, c. 18, the act for the encouragement of trade, 15 Car, 2. c. 7, the act for preventing the planting of to-
chiefly of the privy council. In instance and revenue causes it lay to the High Court of Admiralty in England, and thence to the Delegates.(c) The power of the High Court of Admiralty to receive appeals from the vice admiralty courts in revenue causes has been disputed, on the ground that they were not in their nature causes civil or maritime, but that it was a jurisdiction specially given to the vice admiralty courts by the statute of 7 and 8 Will. 3, c. 22, which took no notice of any appellate jurisdiction in the High Court of Admiralty in such cases. But the point was fully settled in favour of this jurisdiction in the year 1754.(d)
Controversies between two of the provinces concerning the extent of their charter boundaries or rights, came before the king in his privy council who exercised original jurisdiction therein, on the principles of feodal sove-
bacco in England, and for regulating the plantation trade, 22 and 23 Car. 2. c. 26, might be prosecuted in the admiralty courts of the plantations, as well as penalties and forfeitures under the act relating to the plantation trade, 7 and 8 Will. 3. 2 Chalm. Opin. 193.
In August of the same year, the Attorney General, Northey, gave it
as his opinion to the board of trade, that the jurisdiction of the admiralty courts of the colonies extended only to prosecutions arising under the statutes of Car. 2. above mentioned. Ib. 187.
In 1720, however, Mr. West, who was assigned as counsel to the Commissioners of trade and plantations, was of opinion that the statutes 13 Rich. 2, c. 5, 15 Rich. 2, c. 3, 2 Hen. 4, c. 11, and 27 Eliz. c. 11, by which the admiralty jurisdiction in England was limited, were not introductive of new laws, but only declaratory of the common law, and were, therefore, of force even in the plantations, and that none of the
acts of trade and navigation gave the admiralty judges in the West Indies an increase of jurisdiction beyond that exercised by the High Court of Admiralty at home. He was also of opinion that the superior courts of common law in New England had a power to grant prohibitions to the admiralty courts, and states that prohibitions were the remedy constantly applied there to prevent their encroachment.
It is stated by the Attorney General, Northey, in the above mentioned opinion, that an action of trover had been brought and was then depending in the Queen's Bench, against Col. Quarry, the judge of the admiralty in Pennsylvania for condemning in his court an unregistered vessel trading there.
(c) 1 Wheat. 19. 2 Bro. Civ. and Adm. Law, 493. Blackstone, (3 Comm. 70.) says, an appeal also lay to the king in council. But this opinion of his seems to be relinquished. 2 Bro. Civ. and Adm. Law, 493.
(d) 2 Bro. Civ. and Adm. Law, 493, note. 2 Rob. 248. See the note of Mr. Wheaton to the case of the Sarah, 8 Wheat, 396.
reignty.(e) Thus in July 1764 the king in privy council approved the report of a committee of council for plantation affairs relative to the disputes that had for some years subsisted between the provinces of New Hampshire and New York, concerning the boundary line between those provinces; and ordered and declared the western bank of the river Connecticut to be the boundary line.(f) A general superintending power by way of appeal was exercised by the king in council from the decisions of the colonial tribunals. For example, in the year 1685, an appeal of Sir William Vaughan, from a verdict and judgment against him in the courts of New Hampshire at the suit of Robert Mason Esq. as proprietor of that province, for certain lands and tenements in Portsmouth in the said province, was heard by counsel before the committee for trade and plantations of the privy council, who reported that the verdict and judgment should be affirmed, and they were ratified and confirmed accordingly by the king in council.(g) In the case of Jeoffry Jones which was an ejectment brought in New Jersey, in the reign of Will. III. in which a verdict was found and judgment given, the judgment was afterwards reversed by the king in council on a writ of error.(h) And such appeals from the courts in Pennsylvania and in the other colonies to the king in council were common before the revolution.(i) In some of the colonies the appeal was first to the governor and council, and from them to the king in council.(k)
In the year 1764, the nature and extent of the right of appeal to the governor and council, attracted much attention in the colony of New York. Prior to the year
(e) 1 Bl. Comm. 231. 1 Vez. 444. 3 Belknap's History of New Hampshire, 296. Appendix, No. X. Ib. 345. Appendix, XLI. Cited in the case of Forsey v. Cunningham, New York, 1764.
Pamph. 49. See post
(i) The act of assembly of Pennsylvania for establishing courts passed in 1722, saves the right of appeal from any court to the king in council or to such courts in Britain as the king should appoint, and imposes the conditions of appeal. 1 Smith's Laws of Penn. 140. See also the charter to W. Penn.
(k) See the case of Gordon v. Lowther, 2 Ld. Ray. 1447, a ease of that kind brought from the island of Barbadoes. It is there stated, that the rule was, that the party appealing must procure the proceedings to be transmitted, and proceed within a year after the appeal allowed in the plantation: and the appeal was dismissed in that case under this rule.
1753, the governor's instructions from the crown were to allow appeals to the governor and council in case of errors, from any of the courts of common law. But in that year the phraseology was changed and the instructions were to allow appeals from any of the courts of common law, and for that purpose to issue a writ in the manner which had been usually accustomed. The amount was also fixed and the security regulated. Thomas Forsey recovered a verdict and judgment for £.1500 damages, against Waddel Cunningham, in the Supreme Court of New York, for assault, battery, and wounding. The defendant having failed in a motion for a new trial, procured two writs, directed to the court by the lieutenant-goveritor, (Golden,) one to stay execution, the other commanding the proceedings to be brought before the governor and council. The court refused obedience to these writs, and delivered their opinions to the governor and council, that no appeal lay from the common law courts to the governor and council to hear the cause upon its merits, and reverse or control the verdict of a jury, but only by a Writ of error to examine errors in law. The lieutenant governor insisted on the right to entertain an appeal, but the council agreed with tho judges. The legislature took up the subject with warmth, and denounced the attempt as dangerous to the rights of the people. Cunningham petitioned the king and council for liberty to appeal to them. They refused this request, but determined that the appeal to the governor and council ought to be admitted, and from them either party might appeal to the king in council.(l)
II. Of the period during which the national authority was exercised by Congress.
As a necessary consequence of the revolution, the judicial power of the crown in the colonies, as well as all its other authority, ceased; and from the commencement of the war in April, 1775, Congress, with the approbation of the colonies and people, and from the emergency of the crisis, exercised the sovereign authority of the country,
(l) Forsey v. Cunningham, New York, 1764, Pamp. What further proceedings were had does not appear.
so far as related to war and peace. They raised armies and navies, and directed military operations, emitted bills of credit, made treaties, and received and sent ambassadors; commissioned privateers, prescribed the objects of capture, and made rules for the distribution of prizes. As the legality of all captures on the high seas depends on the law of nations, and a just and uniform execution of that law is essential to the sovereign power, which might be implicated with foreign nations in the results of its administration, Congress had for this purpose a rigftt of maintaining , a control by appeal, in cases of capture, as well over the decisions of juries as of judges.(m) When Congress, therefore, in November 1775, first authorised the capture of English vessels of war, and of other vessels employed in the service and supply of the English armies, by vessels to be commissioned by Congress, they recommended to the several legislatures of the united colonies, as soon as possible to erect courts of justice, or give jurisdiction to those in being, concerning such captures; the trials thereof to be by a jury, under such regulations as to the respective legislatures should seem expedient; but that in all cases an appeal should be allowed to Congress, or such person or persons as they should appoint for the trial of appeals, under certain provisions as to the time of demanding and lodging the appea^ and giving security.^)
The application to Congress on appeal was by petition, which, at first, was usually referred to a special committee appointed in each case, consisting of five members. But on the 30th January, 1777, Congress resolved to appoint a standing committee, to consist of five members, to hear and determine these appeals, and to them the petitions were referred when presented.(o) Three members were added in May, but in October following, the number was restored to five, they, or any three, to hear and determine.
The resolutions of Congress of November, 1775, above
(m) Penhallow v. Doane's adms. 3 Dall. 80.
(n) \ Journ. Cong. 259, 260. The state courts of admiralty also exercised jurisdiction in instance causes. See Hopkinson's Rep.
(o) Journ. Cong. The first standing committee of appeals was appointed on the 30th January, 1777, and consisted of Mr. Wilson, Mr. Sergeant, Mr. Ellery, Mr. Chase and Mr. Sherman.
mentioned, was complied with by several states; some allowing appeals to Congress on a larger, some on a more contracted scale. In some instances the acts passed by the states gave rise to questions concerning the respective authorities of Congress and of the states, which occasioned much debate and difference of opinion in Congress and elsewhere; and some of these questions were not finally determined till after the adoption of the present con.stitution. In July, 1776, the legislature of the state of New Hampshire passed an act which allowed an appeal to Congress, or persons appointed by them, only when the vessel capturing was fitted out at the charge of the united colonies; in other cases the appeal was to be to the Supreme Court of judicature of that state.(jo) A citizen of that state, acting under the commission of Congress, in a vessel owned by citizens of New Hampshire, captured a vessel as prize, on the high seas, in October, 1777. Being claimed by citizens of Massachusetts, a trial by jury took place in the New Hampshire court maritime, erected by the act of that state of July, 1776, and the jury found a verdict for the captors. The claimants prayed an appeal to Congress, but the court refused it, because it was contrary to the law of that state. The claimants then appealed to the superior court and a jury; there also a verdict was found for the captors. The claimants then pray-:* ed an appeal to Congress, and petitioned Congress, who /'.referred it to the committee of appeals, and that commit"1 tee decided in June, 1779, that they had jurisdiction. Af*;.ter the confederation, the court of appeals reversed the decrees passed by the courts of New Hampshire, and in -the year 1795, the Supreme Court of the United States, on appeal from the Circuit Court of New Hampshire, carried into effect the former decree of the court of appeals.^)
In the case of the sloop Active, the jurisdiction of Congress was also disputed. In that case, on a libel in the court of Admiralty of Pennsylvania, the jury found a verdict distributing the proceeds of a prize among certain
(p) In November, 1779, the legislature extended the liberty of appeal to Congress, to every case wherein the subject of any foreign nation in amity with the United States should be interested in the dispute: but allowed it no further.
(<f) Penhallow v. Doane's adms. 3 Dall. 80.
claimants. From this sentence or decree, an appeal was taken to Congress, and the committee of appeals, in March, 1779, reversed the decree, and ordered process to issue out of the court of Admiralty of Pennsylvania, to carry the decree of reversal into effect. The judge of the court of Admiralty refused to conform to this order, alleging as a reason an act of the legislature of Pennsylvania, declaring that the finding of a jury should establish the facts in all trials in the court of Admiralty without re-examination or appeal; and that an appeal was permitted only from a decree of a judge. Congress, however, resolved in March, 1779, that their committee had jurisdiction, and made ineffectual efforts to induce the assembly of Pennsylvania to confer with them on the subject. After the adoption of the present constitution, the decree of the committee of appeals was enforced in the courts of the United States.(r)
In January, 1780, Congress resolved to establish a court for the trial of all appeals from the courts of Admiralty of the states, in cases of capture, to consist of three judges with salaries, appointed and commissioned by Congress, two of whom should constitute a quorum. The court was empowered to appoint a register. The trials therein were to be according to the usages of nations, and not by jury; and they fixed the place of their first session at Philadelphia, and afterwards at such times and places as the court should judge most conducive to the public good, so that they did not at any time sit further eastward than Hartford, in Connecticut, or southward than Williamsburgh, in Virginia. On the 22d January, they elected the judges by ballot, (s) The style of the court, it was subsequently resolved, should be the Court of Appeals incases of Capture; and regulations were made as to the oaths of the judges and register, the time of entering and lodging appeals, and giving security; and the causes depending and papers were ordered to be transferred to this court.(t)
Applications were sometimes made to Congress to or-
(r) See U. S. v. Peters, 5 Cranch, 115. Ross », Rittenhouse, 2 Ball. 160. U. S. c. Bright and others, 3 Hall's Law Journ. 225.
(*) Mr. Wythe, Mr. Paca, and Mr. Hosmer were elected. Mr. Wythe afterwards declined, and Mr. Cyrus Griffin was elected in his place.
(0 6 Journ. Cong. 156.
der this court to receive appeals. In September, 1784, we find an application to Congress, and instructions by them to receive an appeal, where, by the indisposition and death of the register of the court of Admiralty of Pennsylvania, the stipulations were not executed in due form and in due time.(w) In February, 1782, a resolution was adopted in another case, authorizing the appeal.(Y) On the other hand they refused to interfere after the decision of the court,(y) or in favour of a suitor in the court of appeals where a loss was occasioned by such suitor or his friend.(r)
In February, 1786, Congress resolved, that as the war was at an end, and the business of the court of appeals in a great measure done away, the salaries of the judges should cease.(a) In June, 1786, they were authorized to grant rehearings or new trials, and a per diem allowance was ordered during the sitting of the court, and the time employed in travelling to and from the same.(6)
In relation to controversies between states concerning the rights of soil and jurisdiction, applications were, in several instances, made to Congress. In December, 1779, they resolved, that as it appeared from the representation of the delegates from the state of Pennsylvania, that disputes had arisen between the states of Pennsylvania and Virginia, relative to the extent of their boundaries, which might be productive of serious evils to both states, and tend to lessen their exertions in the common cause, it be recommended to the contending parties, not to grant any part of the disputed land, or to disturb the possession of any person living thereon, and to avoid any appearance of force, until the dispute could be amicably settled by both states, or brought to a just decision by the intervention of Congress; that possessions forcibly taken be restored to
(«) 7 Journ. Cong. 180.
(x) Ib. 277.
(y) Ib. 250.
<z) Ib. 271.
(a) 11 Journ. Conjr. 33.
(6) Ib. 123. By the act of Congress of the 8th May, 1792, sec. 12, the records and proceedings of this court, are ordered to be deposited in the office of the clerk of the Supreme Court of the United States, Who is authorized to give copies; and such copies are to have like faith and credit as all other proceedings of said court.
the original possessors, and things placed in the situation in which they were at the commencement of the war, without prejudice to the claims of either party .(e)
So, the disputes existing between the states of New York, New Hampshire and Massachusetts, and the people inhabiting the present state of Vermont, then styled the New Hampshire grants, were brought before Congress by their applications, and Congress recommended laws to be passed by the respective states, expressly authorizing Congress to hear and determine all differences between them, relative to their respective boundaries, in the mode prescribed by the articles of confederation, (which had then been agreed to in Congress, but were not ratified by all the states.) New York and New Hampshire passed such laws, and a hearing before Congress took place.
A controversy subsisting between the states of Virginia and New Jersey, respecting a tract of land called Indiana, lying on the river Ohio, was, in consequence of instructions from the Legislature of New Jersey to their delegates in Congress, and the petitions of Indiana proprietors, heard before a committee of Congress, who reported in May 1782, that the purchase of the Indiana company was made bona fide, &c. (c?)
During this period there existed nothing resembling the appellate authority from the tribunals of the respective colonies previously exercised by the king in council.
III. Of the government of the Union under the articles of Confederation.
The declaration of independence in July, 1776, operated as a permanent transfer from the crown of England of the high national powers lately exercised by Congress, and was naturally followed by the establishment of a regular government, amongst whose different departments these powers might be distributed. Accordingly, the day after that on which the declaration of independence was resolved on by Congress in a committee of the whole (June 11th 1776,) a proposition was made, and a committee appointed to prepare and digest the form of a confederation
(c) 5 Journ. Cong. 456.
(<0 7 Journ. Cong. 364. 9 Journ. Cong. 64.
to be entered into between the colonies.(e) The articles of confederation were agreed to in Congress on the 15th November 1777,(f) but were not to be conclusive until they were approved by the legislatures of all the states.(g-) Eleven of the states ratified them in 1778, and one in 1779, and the last of the thirteen states on the 1st March 1781. The completion of the ratification was announced by Congress on the 23d March 1781, and the government commenced its operations.
By the articles of confederation, the judicial power of the United States was defined and somewhat extended, though it was still restricted to narrow limits. The ninth article provided, that the United States in Congress assembled, should have the sole and exclusive right and power, 1st, Of appointing courts for the trial of piracies and felonies committed on the high seas. 2d, Of establishing courts for receiving and determining appeals in all cases of capture: provided, that no member of Congress should be appointed a judge of any of the said courts. 3d, The United States in Congress assembled were also to be, by the same article, the last resort on appeal, in all disputes and differences then subsisting or that thereafter might arise, between two or more states concerning boundary, jurisdiction, or any other cause whatever; which authority was to be exercised by judges, or commissioners, to be appointed in the manner therein particularly described, their judgment to be final; provided, that no state should be deprived of territory for the benefit of the United States. 4th, All controversies concerning the private right of soil claimed under different grants of two or more states, whose jurisdictions, as they might respect such lands and the states which passed such grants, were adjusted j the said grants, or either of them, being at the same time claimed to have originated antecedent to such settlement of jurisdiction; were on the petition of either party in Congress, to be finally determined, as near as might be, in the same manner as the foregoing.
Such was the limited extent of judicial power under the confederation, and its exercise was arranged in the following manner.
(e) 2 Journ. Cong. 207. (f) 3 Journ. Cong. 502. (g) Article 13.
1. An ordinance was passed^) for establishing courts for the trial of piracies and felonies committed on the high seas, by which persons charged with these offences, or accessaries thereto, were to be inquired of and tried by the grand and petit jurors according to the course of the common law in like manner as if committed on land. The justices of the Supreme or Superior Court of judicature, and judges of the court of admiralty of the several and respective states, or any two or more of them, were appointed judges.(e) The punishment was to be the same as if the offences were committed on land. When there was more than one judge of a court of admiralty, the supreme executive power of the state was to commissionate one (of them) exclusively, to join in performing the duties required by the ordinance. All forfeitures were to go to the state, when conviction took place.
When courts were held under the authority of this ordinance, the judges sat in the state court house, the prisoners were confined in the state gaol under the custody of state officers, and were executed, on conviction capitally, by the order of the sheriff.(&)
2. No new court of appeals was constituted after the articles of confederation; but the court, as then organised, appears to have continued. The judicial power of Congress under the articles of confederation, in appeals in cases of capture, seems, however, to have been narrowed considerably by the constructions given to the articles of confederation in the state courts. Thus, in Pennsylvania, by an act of the legislature passed prior to the complete ratification of the articles of confederation, a court of appeals was constituted, " for reviewing, reconsidering and correcting the definitive sentences and decrees of the court of admiralty of that state, other than in cases of capture upon the water in time of war from the enemies of the United States." A complainant filed a libel in the state court of admiralty, to recover damages against the defendant, for taking from him on the high seas, an English vessel, which he had captured as prize, in which the state
(A) April 5th 1781. 7 Journ. Cong. 65.
(i) By an ordinance passed in March, 1783, a judge of the court of admiralty was always to form one of the court. 8 Journ. Cong. 146.
(K) 2 Vol. Debates of Congress in 1789, page 286, speech of Mr. Smith of South Carolina.
court of admiralty decreed damages and costs. On appeal to the state court of appeals that court held, 1st. that an appeal did not lie in the case to the court established by Congress, because the words of the articles of confederation authorising the establishing of courts for receiving and determining finally appeals in all cases of capture, meant captures as prize, when such prize was brought infra prcesidia of the United States; and as the prize in this instance was not brought infra prcesidia of the United States, but was recaptured by the British, that court had no jurisdiction. 2d, That the state court of appeals had jurisdiction, because the legislature intended to give it jurisdiction in appeals from the admiralty in all cases in which the appeal was not resigned to the United States, and if this were not the case there would be a defect of justice.(7.)
3. A court consisting of five commissioners, organised under the articles of confederation, sat at Trenton, in November and December, 1782, to determine the controversy which had long subsisted between the states of Pennsylvania arid Connecticut, relative to the territory of Wyoming. These states appeared respectively by counsel, as agents, and their proofs and arguments were heard. On the 30th December, 1782, the court decreed, unanimously, that the state of Connecticut had no right to the lands in controversy, and that the jurisdiction and preemption of all the territory lying within the charter boundary of Pennsylvania claimed by Connecticut, of right belonged to the state of Pennsylvania.(m)
Proceedings also took place in the years 1786, and 1787, for constituting courts to determine controversies respecting territory, between the states of Massachusetts and New York, and also between the states of South Carolina and Georgia: but they were never completed, as these states amicably adjusted the disputes.(w)
As well before as after the articles of confederation, Congress, by the exercise of an appellate jurisdiction, in all cases of capture, had the means of enforcing the law of nations, so far as related to questions of prize. To enforce it in other respects, they were dependent on the aid
(0 Talbot v. Commanders, &c. of three brigs. 1 Ball. 95.
(m) 8 Journ. Cong. 83. The court consisted of William Whipple, Welcome Arnold, William C. Houston, Cyrus Griffin, and David Brearly, Esquires.
(n) 12 Journ. Cong.
of the state governments. ^ In August, 1779, they resolved, that the President and Supreme Executive Council of Pennsylvania, be informed, that any prosecution which it might be expedient to direct for such matters and things in certain publications and transactions as were against the law of nations, should be carried on at the expense of the United States.(o) In November, 1781, they recommended to the legislatures of the states, to pass laws punishing infractions of the laws of nations, committed by violating safe conducts or passports granted by Congress: by acts of hostility against persons in amity with the United States: by infractions of the immunities of ambassadors: by infractions of treaties or conventions: and to erect a tribunal, or to vest one already existing with power to decide on offences against the law of nations, and to authorize suits for damages by the party injured, and for compensation to the United States for damages sustained by them from an injury done to a foreign power, by a citizen.(p)
In the case of De Longchamps, who was convicted and sentenced in the court of Oyer and Terminer of Pennsylvania, in the year 1784, for committing a violation of the law of nations, by insulting M. Marbois, the secretary of the French legation, and for assault and battery on him, the court declared, that the law of nations formed a part of the municipal law of Pennsylvania, and it seems enforced it.(y) No act appears to have been passed in this state in pursuance of the recommendation of Congress. After the arrest of De Longchamps, the Supreme Executive Council of Pennsylvania gave information of it in a letter to Congress, and requested their advice,(r) and the committee of states approved thereof.(s)
On the 24th June, 1776, after independence had been resolved upon, but before it was declared, Congress denned allegiance and treason; declaring the latter to consist in levying war against any of the colonies within the
(o) 5 Journ. Cong. 367. In the case of Cornelius Sweers, in the year 1778, reported 1 Ball. 41, Congress employed counsel to prosecute in the state court. 4 Journ. Cong. 494. See also 5 Journ. Cong. 283, in the year 1779.
(p) 7 Journ. Cong. 234.
(q) Respublica v. De Longchamps, 1 Ball. 111.
(r) 9 Journ. Cong. 277.
(«) 9 Journ. Com, of States, 6,
^ame, or being adherent to the king of Gfreat Britain, or other enemies of the said colonies or any of them, within the same, giving to him or them aid or comfort; and recommending it to the legislatures of the colonies, to pass laws for punishing persons proveably attainted of open deed by people of their condition. We find several instances of persons convicted in Pennsylvania in the year 1778, under the laws of that state, for treason committed therein.^)
In the ordinance passed in October, 1782, for regulating the post offices of the United States, (the power to establish and regulate post offices throughout the United States being vested in Congress by the articles of confederation,) Congress imposed penalties for official misdemeanors, which were made recoverable by action of debt in the name of the Post Master General, in the state where the offence was committed. But, generally speaking, Congress had no power to exact obedience, or punish disobedience by pecuniary mulcts or otherwise, but were dependent on the laws and tribunals of the several states; so that when laws became necessary to secure the interests of the union, they were obliged to request the state legislatures to pass them. Thus, for example, we find Congress in the year 1782, calling on the legislatures of the states to pass laws to empower commissioners appointed by Congress to settle the accounts of the military department, to call for witnesses and examine them on oath or affirmation, touching the accounts. (M) It was even necessary to pass a resolution to request them to enact laws to enable the United States to recover from individuals debts due, and effects belonging to the United States;(V) and in July 1784, we find the committee of States, (who sat during the recess of Congress,) complaining, that none of the state legislatures had made the i provision requested agreeably to their recommendation, by which the interests of the United States had already suffered greatly, and requiring that it should be done without loss of time, and again earnestly recommending the adoption of measures to enable the United States to
(0 See 1 Ball. 35. 39.
(u) 4 Journ. Cong, 83, in 1778. 5 Journ. Cong. 296, in 1779. 7 Journ. Cong. 298, in 1782. (x) 7 Journ. Cong. 298.
sue for and rec6ver their debts and effects and property, and any damages they had sustained or might sustain.(y)
Hence it appears that all cases of national or local import were decided by the state jurisdictions exclusively, except disputes between states, questions arising under grants of land by two or more states in certain cases of prize on appeal, and piracies or felonies on the high seas. To these exceptions may be added suits against one of the states in the courts of another, which the latter refused to take cognisance of on the general principle that a state was sovereign, and one sovereign could not be sued in the courts of another.(z) The state courts exercised no jurisdiction in causes arising from a national impost or revenue: for none such existed prior to the present constitution of the United states. State imposts existed, and the state tribunals entertained the causes arising out of them.(a)
Under the confederation, no tribunal was vested with the appellate authority which before the revolution was exercised by the king in council from the decisions of the courts of the respective colonies.(b)
The members of the Convention which formed the constitution of the United States had witnessed the practical operation of our judicial institutions under the crown of England and the confederation, and had the best opportunities of observing the excellencies and defects of both systems. It may be presumed that in arranging the judicial power they intended to embrace what experience had shewn to be salutary in preserving harmony amongst ourselves and with foreign nations, and what wisdom dictated as essential to secure obedience to the authorities intended to be vested in the different departments. Hence some portion of the judicial power resembles that exercised in former times, but a considerable share of it grew out of the establishment of a general government, designed to superintend exclusively the great political concerns of the country.
(y) 9 Journ. Cong. Com. of States, 29.
(«) Nathans v. Commonwealth of Virginia, 1 Dall. 77.
(a) See causes of this description reported 1 Dall. 62, 197. In Pennsylvania they were tried by jury.
(6) The only judicial power analogous to this is the appellate jurisdiction vested in the Supreme Court of the United States under the present constitution from the highest state courts, in cases arising under the constitution, laws or treaties.
THE
COURTS OF THE UNITED STATES,
&c. &c.
CHAPTER I.
SUPREME COURT — ORGANIZATION.
THE constitution provides in the 1st article, (sect. 8, 9.) that Congress shall have power to constitute tribunals inferior to The Supreme Court: and directs in the 3rd article, (sect. 1,1.) that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may, from time to time, ordain and establish. A chief justice is recognized in the 1st article of the constitution, which provides that when the President of the United States shall be tried before the senate, on impeachment, the chief justice shall preside, (sect. 3, 6.) The organization of this court, in relation to the number of its judges, the places and periods of its session, &c. is provided for by the act of Congress, of September 24th, 1789, commonly called the Judicial Act, and other acts subsequently passed, (a)
By the 1st sect, of the act of September 24th, 1789, the Supreme Court shall consist of a chief justice and five associate justices, any four of whom shall be a quorum, and shall hold, annually, at the seat of government, two sessions; the one commencing the first Monday of February, and the other the first Monday of August. And the associate justices shall have precedence ac-
(a) Th>s act was draughted by a committee of senate composed of Messrs. Ellsworth, Paterson, Maclay, Strong, Lee, Bassett, Few, and Wingate. Senate Journ. April 7th, 1789.
cording to the date of their commissions, or when the commissions of two or more of them bear date on the same day, according to their respective ages.
But by the act of April 29, 1802, sect. 1. the Supreme Court shall be holden by the justices thereof, or any four of them, at the City of Washington, and shall have one session in each and every year, to commence on the first Monday of February annually; (altered by the act of May 4, 1826, to the second Monday of January;) and if four of the said justices shall not attend within ten days after the time hereby appointed for the commencement of the said session, the business of the said court shall be continued over till the next stated session thereof; provided always, that any one or more of the said justices, attending as aforesaid, shall have power to make all necessary orders touching any suit, action, writ of error, process, pleadings, or proceedings returned to the said court or depending therein, preparatory to the hearing, trial, or decision of such action, suit, appeal, writ of error, process, pleadings, or proceedings.
The 2d section enacts, that it shall be the duty of the associate justice resident in the fourth circuit formed by this act, (Maryland and Delaware) to attend at the city of Washington, on the first Monday of August next, and on the first Monday of August each and every year thereafter, who shall have power to make all necessary orders touching any suit, action, appeal, writ of error, process, pleadings, or proceedings; and that all writs and process may be returnable to the said court, on the said first Monday in August, in the same manner as to the session of the said court, herein before directed to be holden on the first Monday in February; and may also bear teste on the said first Monday in August, as though a session of the said court was holden on that day. And it shall be the duty of the clerk of the Supreme Court to attend the said justice on the said first Monday in August in each and every year, who shall make due entry of all such matters and things as shall or may be ordered as aforesaid by the said justice. And at each and every such August session, all actions, pleas, and other proceedings relative to any cause, civil or criminal, shall be continued over to the ensuing February session.
By the act of February 24th, 1807, sect. 5, the Supreme
Court of the United States shall hereafter consist of a chief justice and six associates; any law to the contrary notwithstanding. And for this purpose, there shall be appointed a sixth associate justice, to reside in the seventh circuit, (Kentucky, Tennessee, and Ohio,) whose duty it shall be, until he is otherwise allotted, to attend the Circuit courts of the said seventh circuit, and the Supreme Court of the United States, and who shall take the same oath, and be entitled to the same salary as are required of, and provided for, the other associate justices of the United States.
By the act of 21st January, 1829, sect. 1, if, at any session of the Supreme Court, four justices thereof shall not attend, on the day appointed for holding said session, such justice or justices as may attend, shall have authority to adjourn said court from day to day, for twenty days after the time appointed for the commencement of said session, unless four justices shall sooner attend; and the business of said court shall not in such case be continued over to the next stated session thereof, until the expiration of the said twenty days, instead of the ten days now limited by law.
The 6th section of the act of September 24th, 1789, provides that the Supreme Court may, by any one or more of its justices being present, be adjourned from day to day, until a quorum be convened: and though one of the justices should be dead, it seems four would constitute a quorum.(A)
By the act of 21st January, 1829, sect. 2, if it shall so happen, during any term of the Supreme Court, after four of the judges shall have assembled, that, on any day, less than the number of four shall assemble, the judge or judges so assembling, shall have authority to adjourn said court, from day to day, until a quorum shall attend; and, when expedient and proper, may adjourn the same without day.
By sect. 8. their oath or affirmation is prescribed: and by sect. 7, the court is authorized to appoint a clerk, who is to take an oath or affirmation, and to give bond with sureties.
The act of May 8,1792, sect. 12, provides that all the
(6) Pollard v. Dwight. 4 Cranch, 421.
records and proceedings of the court of Appeals heretofore appointed, previous to the adoption of the present constitution, shall be deposited in the office of the clerk of the Supreme Court of the United States, who is thereby authorized and directed to give copies of all such records and proceedings to any person requiring and paying for the same, in like manner as copies of the records and other proceedings of the said court, are by law directed to be given; which copies shall have like faith and credit as all other proceedings of the said court.
By the 7th sect, of the act of February 25th, 1799, whenever, in the opinion of the chief justice, or in case of his death, or inability, of the senior associate justice of the Supreme Court of the United States, a contagious sickness shall render it hazardous to hold the next stated session of the said court at the seat of government, it shall be lawful for the chief, or such associate justice, to issue his order to the marshal of the district within which the Supreme Court is by law to be holden, directing him to adjourn the said session of the said court, to such other place within the same or an adjoining district, as he may deem convenient, and the said marshal shall thereupon adjourn the said court, by making publication thereof in one or more public papers, printed at the place by law appointed for holding the same, from the time he shall receive such order until the time bylaw prescribed for commencing the said session. And the district judges shall respectively, under the same circumstances, have the same power, by the same means, to direct adjournments of the district and circuit courts, within their several districts, to some convenient place within the same respectively.
CHAPTER II.
SUPREME COURT. — ORIGINAL JURISDICTION.
THE constitution expressly defines and fixes the original jurisdiction of the Supreme Court, by declaring the cases in which it shall take original jurisdiction; and that in others it shall take appellate jurisdiction.(a) Congress may, by legislative enactment, enforce the provisions of the constitution on this head; but it cannot assign to the Supreme Court original jurisdiction in any case in which it is not vested in that court by the constitution.^)
The provisions of the constitution that relate to the original jurisdiction of the Supreme Court, and the judicial power of the United States, are the following.
Art. III. Sec. 1, 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as congress may, from time to time, ordain and establish.
Sec. 2,1. The judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states — between a state and citizens of another state — between citizens of different 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.
Sec. 2,2. 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
(a) Marbury v. Madison. 1 Cranch, 137. 175. (i) Ib.
fact, with such exceptions, and under such regulations as Congress shall make.
Amendments. — Art. 7. In suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law.
Amendments. — Art. 11. 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.
By the act of September 24th, 1789, sect. 13. the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a state is a party, except between a state and its citizens; and except also, between a state and citizens of other states or aliens, in which latter case it shall have original, but not exclusive jurisdiction. And shall have, exclusively, all such jurisdiction of suits or proceedings against ambassadors or other public ministers, or their domestics or domestic servants, as a court of law can have or exercise consistently with the law of nations. And original, but not exclusive jurisdiction of all suits brought by ambassadors or other public ministers, or in which a consul or vice-consul shall be a party. And the trial of issues in fact, in the Supreme Court, in all actions at law, against citizens of the United States, shall be by
jury.(c)
Soon after the adoption of the constitution, several suits
against states were brought in the Supreme Court, by citizens of other states. The states, however, refused to ap-
(c) No act of Congress gives to any other court concurrent jurisdiction in suits between a state and citizens of other states or aliens, though here declared not exclusive: unless the 11th sec. of this act does so as to aliens, by the grant to the circuit court of cognisance of suits where an alien is party. See 4 Wash. C. C. Rep. 200. 344. Nor is concurrent jurisdiction given by act of Congress to any other court in suits by ambassadors or other public ministers, or by a consul or vice-consul. The 11th section of this act gives the district courts jurisdiction of suits against consuls and vice-consuls.
pear to these suits; and it was insisted that the clause in the constitution, extending the judicial power of the United States, to controversies between a state and citizens of another state, embraced only suits brought by a state, and did not include suits brought against a state. But in the case of Chisholm v. Georgia,(o?) it was decided by the Supreme Court that assumpsit might be maintained against a state by a citizen of a different state. This decision occasioned the 11th amendment to the constitution above mentioned, which was construed not only to prohibit the bringing of suits against a state by citizens of another state or aliens, from the time of its adoption, but to put an end to all suits of that description which were then pending.(e) This amendment, however, does not affect controversies between two or more states,(f) or between a state and foreign states, or suits brought by a state against citizens of a different state. But it seems, a state cannot go into a court of the United States, to enforce its own penal laws in any case.(g-)
But to deprive the Circuit Court of jurisdiction on the ground that states are parties, such states must be either nominally or substantially parties. It is not sufficient in an ejectment brought by one individual against another in which no state is before the court, that the suit may in its result consequentially affect a state or states. As for instance, that grants made by such states are in litigation, "and that in the event of the verdict, retribution must be made by either of them, or that the issue is, in which of two states the land in dispute lies: for the decision between individuals cannot affect the rights of a state.(A)
A state may proceed originally in the Supreme Court for the purpose of contesting a right of soil(t') Upon the question, whether there was any mode by which a state might have the right of jurisdiction tried, WASHINGTON, J. Would not say that a state could sue at law for such an incorporeal right as that of sovereignty and jurisdiction, but said that even if a court of law would not afford a re-
d) 2 Ball. 419.
e) Hollingsworth v. Virginia. 3 Ball. 378. See 2 Dall. 480. note.
f) See for example, New York v. Connecticut. 4 Dall. 3.
g) Cohens v. Virginia. 6 Wheat. 399. h) Fowler v. Lindsey. 3 Dall. 411.
i) Ib. New York v. Connecticut et al. 4 DalL 3
medy he saw no reason why a remedy should not be obtained in a court of equity. The state of New York might, he thought, file a bill against the state of Connecticut, praying to be quieted as to the boundaries of the disputed territory: and this court, in order to effectuate justice, might appoint commissioners to ascertain and report those boundaries. CUSHING J. intimated that a state has a remedy under the constitution and law to determine a contest of jurisdiction. But PATERSON J. declared that it was not necessary to determine how far a suit might, with effect, be instituted in the Supreme Court to decide the right of jurisdiction between two states, abstractedly from the right of soil.(k)
Whether a state might institute proceedings in the Supreme Court to annul a contract made by it in a law passed by its legislature, on the ground of fraud and corruption in the members of such legislature, query. It is certain that individuals cannot bring such questions incidentally and collaterally before the court. And if a bill were filed by the state for such purpose, third persons, purchasers for a valuable consideration, having no notice of such fraud and corruption, would have a good title.(m)
An indictment for an assault committed by a private individual on a foreign minister, within the United States, in violation of the provision of the 27th section of the crimes act of 1790, is not a case within the constitution, which declares, art. 3. s. 2. 2. that in all cases affecting ambassadors, other public ministers, and consuls, the Supreme Court shall have original jurisdiction. It is a case which affects the United States, and the individual prosecuted, but not the minister, inasmuch as he is not concerned either in the event of the prosecution, or in the costs attending it. The Circuit Court has jurisdiction in such case, under the 11th sect, of the act of 24th September, 1789.(n)
In a criminal case that occurred in the year 1793, in
(k) Fowler v. Lindsey. 3 Dall. 411. See New York v. Connecticut et al. 4 Dall. 3, 4, note, where the state filed a bill in equity, in the Supreme Court, praying an injunction, but the court refused it, because the state was not a party to the suits below, nor interested in the decision of them.
(m) Fletcher v. Peck. 6 Cranch, 87.
(n) United States v. Ortega. 11 Wheat. 467.
the Circuit Court, it was contended that the word original in the constitutional grant of jurisdiction to the Supreme Court, meant exclusive, and that Congress could not vest jurisdiction in any other court in cases affecting ambassadors, other public ministers and consuls, and those in which a state is a party, enumerated in the second clause of the second section of the third article.(o) It was therefore contended that the Circuit Court had no jurisdiction in an indictment against the defendant, who was consul from Genoa, under the grant to the Circuit Court of criminal jurisdiction by the 11th sect, of the act of September 24th, 1789; and of this opinion was IREDELL J. But WILSON J. and PETERS, district judge, were of opinion that the constitution did not preclude Congress from vesting a concurrent jurisdiction in such inferior courts as they might establish, and having done so as to the Circuit Court, it had jurisdiction. And with this the opinion of IREDELL J. previously delivered in the case of Chisholm v. Georgia,(p) seems to concur.
That the understanding of the first Congress was, that • the word original did not mean exclusive, appears from the 13th sect, of the act of September 24th, 1789, which declares the jurisdiction of the Supreme Court in several cases embraced in the constitutional grant of original jurisdiction to the Supreme Court, to be "original but not
1 exclusive;" and from the 11th section of that act, by which jurisdiction is given to the District Court in all
,j suits against consuls, or vice consuls, except those of a
,/ certain description.(^)
(o) United States v. Ravara. 2 Dall. 297.
(p) 2 Dall. 419. See Cohens v. Virginia. 6 Wheat. 692. Com1 monwealth v. KoslofF. 5 Serg. and Rawle, 545.
(5) 2 Dall. 419. See Cohens v. Virginia. 6 Wheat. 692. Commonwealth v. Kosloff. 5 Serg. and Rawle, 545. Yet it is difficult to reconcile with the foregoing, the language of MARSHALL, C. J. in Osborn v. U. S. Bank. 9 Wheat. 820. 821.
" In those cases in which original jurisdiction is given to the Supreme Court, the judicial power of the United States cannot be exercised in its appellate form." " With the exception of those cases in which original jurisdiction is given to thia court, there is none to which the judicial power extends, from which the original jurisdiction of the inferior courts is excluded by the constitution." " The constitution establishes the Supreme Court, and defines its jurisdiction. It enumerates casrs in which its jit-
In Marbury v. Madison,(r) it was held, that Congress cannot vest in the Supreme Court original jurisdiction in a case in which the constitution had clearly not given that court original jurisdiction, and that affirmative words in the constitution, declaring in what cases the Supreme Court shall have original jurisdiction, must be construed negatively as to all other cases, or else the clause would be inoperative and useless. The 13th sect, of the act of 24th September, 1789, vests in the Supreme Court power to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office under the authority of the United States. It was determined, in that case, that the authority given by this section, to issue a mandamus to public officers, was a grant of original jurisdiction not warranted by the constitution, because it was not within the specified cases in which the Supreme Court is by the constitution vested with original jurisdiction, and the act of Congress, in this respect, was held to be void. The court, therefore, refused to issue a mandamus to the secretary of state of the United States, commanding him to deliver to the persons appointed, commissions of justices of the peace for the District of Columbia, which had been signed by the president of the United States, and sealed with the great seal, though they were of opinion that the parties complaining were entitled to the commissions.^)
risdiction is original and exclusive: and then defines that which is appellate," &e. See the case of United States v. Ortega. 11 Wheat. 467, and Mr. Wheaton's note.
(r) 1 Cranch, 137. See the opinion explained, Cohens v. Virginia. 8 Wheat. 400,401.
(s) Marbury c. Madison. 1 Cranch, 137.
CHAPTER III.
SUPREME COURT-ORIGINAL JURISDICTION-PRACTICE,
BY the 14th sect, of the act of September 24th, 1789, all the courts of the United States have power to issue writs of scire facias, habeas corpus, and all other writs, not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.
By the 17th sect, of the act of September 24th, 1789, all the courts of the States have power to impose and administer, all necessary oaths or affirmations; and to punish, by fine or imprisonment, at the discretion of said courts, all contempts of authority in any case or hearing before them: and to make and establish all necessary rules for the orderly conducting business in the said courts: provided, such rules are not repugnant to the laws of the United States.
The Supreme Court possesses, without the provision of written law, a power over their own officers, and to protect themselves and their members from being disturbed in the exercise of their functions; such as to fine for contempt, imprison for contumacy, and enforce the observance of order.(a) They could have exercised the power to fine and imprison for contempts without the aid of this act of Congress; or in cases, if such should occur, to which its provision does not extend. The act is a legislative assertion of a right as incidental to a grant of judicial power, and is to be considered either as an instance of abundant caution, or as a legislative declaration, that the power of punishing for contempt shall not extend beyond its known and acknowledged limits, namely, fine and imprisonment.^)
(a) Ex parte Bollman and Swartwout. 4 Cranch, 93. United States v. Hudson and Goodwin. 7 Cranch, 34.
(6) Anderson v. Dunn. 5 Wheat. 227, 228. See also Ex parte Kearney. 7 Whpat. 38.
The act of May 8th, 1792, sec. 1. provides that all writs and processes issuing from the Supreme, or a Circuit Court, shall bear teste of the Chief Justice of the Supreme Court, or, (if that office be vacant) of the associate justice next in precedence; and all writs and processes issuing from a District Court shall bear teste of the judge of such court, or, (if that office shall be vacant,) of the clerk thereof, which said writs and processes shall be under the seal of the court from whence they issue, and signed by the clerk thereof. The seals shall be provided at the expense of the United States.(c)
By sect. 2, the forms of writs, executions, and other process, except their style,(d} and the forms and modes of proceeding in suits, in those of common law, shall be the same as are now used in the said courts respectively, in pursuance of the act entitled " An act to regulate processes in the courts of the United States,"(e) in those of equity, and admiralty and maritime jurisdiction, shall be according to the principles, rules, and usages which belong to courts of equity, and to courts of admiralty respectively, as contradistinguished from courts of common law; except so far
(c) By an act passed the 29th September, 1789, entitled " An Act to regulate processes in the courts of the United Stales," the same provision was made, and under its authority the Supreme Court, at February term, 1790, established a seal for that court and the circuit courts. See 2 Dall. 399. This act was continued till the end of the session of 1791-2, by the act of February 18th, 1791, and was then suffered to expire.
(d) Query the meaning of these words here. The style of the process of this court, until altered by law, was fixed by the court at February term, 1790, to be "the President of the United"States." 2 Dall. 400*. That style has continued ever since in the Supreme Court and Circuit Courts, though it became a subject of difference between the Senate and House of Representatives on the passage of the act of May 8th, 1792. The bill as it came from Senate contained a clause that " all writs and processes issuing out of the Supreme and circuit courts should be in the name of the President of the United States"; but the house struck it out, with a view that they might be issued in the name of the United States. The Senate insisted on the clause, and the house adhered to their amendment. It finally passed without the clause: but the rule of court has never been altered.
(e) The act of 29th September, 1789. This act directed that the forms of writs and executions, except their style, and modes of process in the circuit and district courts, should be the same in each state respectively, as were then used and allowed in the Supreme Courts of the same, until further provision was made, and except where by that act, or other statutes of the United States, was otherwise provided. It made no provision, in this respect, for the Supreme Court.
as may have been provided for by the act of 24th September, 1789: subject, however, to such alterations and additions as the said courts respectively shall, in their discretion, deem expedient, o