LECTURE XIV.
OF THE JUDICIARY DEPARTMENT.
As the judiciary power is intrusted with the administration of justice, it interferes more visibly and uniformly than any other part of government with all the interesting concerns of social life. Personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice. In the survey which is to be taken of the judiciary establishment of the United States, we will in the present lecture consider, (1.) The judges, in relation to their appointment, the tenure of their office, and their support and responsibility; (2.) The structure, powers, and officers of the several courts.
1. Of the Appointment, Tenure, and Support of the Judges. —
The Constitution (a) declares that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." In this respect it is mandatory upon the legislature to establish courts of justice commensurate with the judicial power of the Union. Congress have no discretion in the case. (b) They were bound to vest the whole judicial power, in an original or appellate form, in the courts mentioned and contemplated in the Constitution, and to provide courts inferior to the Supreme Court, in which the judicial power, unabsorbed by the Supreme Court, might be placed. The judicial power of the United States is, in point of origin and title, equal {291} with the other powers of the government, and is as exclusively vested in the courts created by or in pursuance of the Constitution, as the legislative power is vested in Congress, or the executive power in the President. (a) The
(a) Art. 3. sec. 1.
(b) Martin v. Hunter, 1 Wheaton, 328-337.
(a) Story, Comm. iii. pp. 449-456.
President is to nominate, and, by and with the advice and consent of the Senate, to appoint "judges of the Supreme Court, and all other officers whose appointments are not therein otherwise provided for, and which shall be established by law. But Congress may, by law, vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments." (b) It has never been judicially settled, but it has been very authoritatively and very wisely settled by the uniform practice of the government, that the judges of the District Courts are not inferior officers, whose appointments might be withdrawn by law from the President and Senate, and placed in other hands.
The advantages of the mode of appointment of public officers by the President and Senate have been already considered. The mode is peculiarly fit and proper in respect to the judiciary department. The just and vigorous investigation and punishment of every species of fraud and violence, and the exercise of the power of compelling every man to the punctual performance of his contracts, are grave duties, not of the most popular character, though the faithful discharge of them will certainly command the calm approbation of the judicious observer. The fittest men would probably have too much reservedness of manners, and severity of morals, to secure an election resting on universal suffrage. Nor can the mode of appointment by a large deliberative assembly be entitled to unqualified approbation. There are too many occasions, and too much temptation for intrigue, party prejudice, and local interest, to permit such a body of men to act, in respect to such appointments, with a sufficiently single and steady regard for the general welfare. {292} In ancient Rome, the prætor was annually chosen by the people, but it was in the comitia by centuries, and the choice was confined to persons belonging to the patrician order, until the close of the fourth century of the city, when the office was rendered accessible to the plebeians; and when they became licentious, says Montesquieu, (a) the office became corrupt. The popular elections did very well, as he observes, so long as the people were free, and magnanimous, and virtuous, and the public was without corruption. But all plans of government which suppose the people will always act with wisdom and integrity are
(b) Const. art. 2, sec. 2. (a) Esprit des Lois, liv. viii. c. 12.
plainly Utopian, and contrary to uniform experience. Government must be framed for man as he is, and not for man as he would be if he were free from vice. Without referring to those cases in our own country, where judges have been annually elected by a popular assembly, we may take the less invidious case of Sweden. During the diets which preceded the revolution of 1772, the states of the kingdom sometimes appointed commissioners to act as judges. The strongest party, says Catteau, (b) prevailed in the trials that came before them, and persons condemned by one tribunal were acquitted by another.
By the Constitution of the United States, (c) "the judges, both of the Supreme and inferior courts, are to hold their offices during good behavior; and they are, at stated times, to receive for their services a compensation which shall not be diminished during their continuance in office." The tenure of the office, by rendering the judges independent both of the government and people, is admirably fitted to produce the free exercise of judgment in the discharge of their trust. This principle, which has been the subject of so much deserved eulogy, was derived from the English constitution. (d) The English judges anciently held their seats {293} at the pleasure of the king, and so does the lord chancellor to this day. It is easy to perceive what a dangerous influence this must have given to the king in the administration of justice, in cases where the claims or pretensions of the crown were brought to bear upon the rights of a private individual. But, in the time of Lord Coke, (a) the barons of the exchequer were created during good behavior, and so ran the commissions of the common-law judges at the restoration of Charles II. (b) It was still, however, at the
(b) View of Sweden, c. 8. (c) Art. 3, sec. 1.
(d) The high judicial officer in the ancient kingdom of Aragon, called the Justicia, and appointed by the king, having repeatedly and boldly protected private individuals from the persecutions of the crown, was, in more than one instance, removed from office at the instance of the king. To guard against the like prostration of the independent discharge of duty, it was provided, by a statute of Alfonso V., in 1442, that the justice should continue in office during life, removable only on sufficient cause by the king and the cortes united. Prescott's Hist. of Ferdinand and Isabella, i. Int. 108. This was the most ancient precedent in favor of the establishment of an independent judiciary, and it did great credit to the wisdom and spirit of the free states of Aragon.
(a) 4 Inst. 117.
(b) 1 Sid. 2. Charles I., in his message to Parliament, July 5, 1641, informing
pleasure of the crown to prescribe the form of the commission, until the Act of Settlement of 12 and 13 Win. III. c. 2, which was in the nature of a fundamental charter, imposing further limitations upon the crown, and adding fresh securities to the Protestant succession, and the rights and liberties of the subject. It established that the commissions of the judges be made quamdiu se bene gesserint, though they were still to be removable upon the address of both houses of Parliament. (c) The excellence of this provision has recommended the adoption of it by other nations of Europe. It was incorporated into one of the modern reforms of the constitution of Sweden, (d) and it was an article in the French constitution of 1791, and in the French constitution of 1795, and it was inserted in the constitutional charter of Louis XVIII. The same stable tenure of the judges was contained in a provision in the Dutch constitution of 1814, and it is a principle which likewise prevails in most of our state constitutions, and, in some of them, under modifications more or less extensive and injurious.
In monarchical governments, the independence of the {294} judiciary is essential to guard the rights of the subject from the injustice of the crown; but in republics it is equally salutary, in protecting the Constitution and laws from the encroachments and the tyranny of faction. Laws, however wholesome or necessary, are frequently the object of temporary aversion, and sometimes of popular resistance. It is requisite that the courts of justice should be able, at all times, to present a determined countenance against all licentious acts; and to deal impartially and truly, according to law, between suitors of every description, whether the cause, the question, or the party be popular or unpopular. To give them the courage and the firmness to do it, the judges ought to be confident of the security of
them of having signed the bill for abolishing the High Commission Court and the Star Chamber, added, also, that he had granted that the judges should thereafter hold their places quamdiu se bene gesserint. Hume, in his History of England, vi. 423, says, that this grant of the judges' patents during good behavior was made at the request of the Parliament.
(c) The English judges, notwithstanding the form of their commissions, continued to consider that the demise of the crown vacated their seats. But this imperfection, if one really existed, was removed by the statute of 1 Geo. III., enacted at the recommendation of the king.
(d) Catteau's View of Sweden, c. 5.
their salaries and station. Nor is an independent judiciary less useful as a check upon the legislative power, which is sometimes disposed, from the force of party, or the temptations of interest, to make a sacrifice of constitutional rights; and it is a wise and necessary principle of our government, as will be shown hereafter in the course of these lectures, that legislative acts are subject to the severe scrutiny and impartial interpretation of the courts of justice, who are bound to regard the Constitution as the paramount law, and the highest evidence of the will of the people. (a)
The provision for the permanent support of the judges is well calculated, in addition to the tenure of their office, to give them the requisite independence. It tends, also, to secure a succession of learned men on the bench, who, in consequence of a certain undiminished support, are enabled and induced to quit the lucrative pursuits of private business for the duties of that important station. The Constitution of the United States, on this subject, was an improvement upon all our previously existing constitutions. By the English Act of Settlement of 12 & 13 William III., it was declared that the salaries of the judges should be ascertained and established; but by the statute of 1 Geo. III., the salaries of the judges were absolutely secured to them during the continuance of their commissions. The constitution of Massachusetts followed the declaration in the English statute of William, and provided that permanent and honorable salaries should be established by law for the judges; but {295} this was not sufficiently precise and definite to guard against all evasion; and the more certain provision in the Constitution of the United States has been wisely followed, in the subsequent constitutions of most of the individual states. In Pennsylvania, the judges of the Supreme Court, and the president judges of the courts of common pleas, by the constitution of that state, are to receive, at stated times, an adequate compensation for their services, "to be fixed by law, and not to be diminished during their continuance of office." The legislature, by act, in 1843, repealed the act of 1839, which had increased the salaries of the
(a) The protection of law and liberty from the encroachments of the sovereign was an avowed purpose of the institution of the Justicia in the Aragonese constitution, ne quid autem damni detrimentive leges aut libertates nostræ patiantur, judex quidam medius adesto ad quern a rege provocare, si aliquern læserit, injuriasque arcere si quas forsan reipub. intulerit, jus fasque esto. Blancas, Commentarii, 26, cited in 1 Prescott, Ferdinand and Isabella, Int. 107, n. 59
judges; and they also, by act of 1841, assessed upon the salaries of the judges a tax of two per cent, which the state treasurer retained. The invalidity of the statutes reducing the salaries and assessing a tax thereon was afterwards adjudged as being unconstitutional, and a peremptory mandamus was awarded to the state treasurer to pay the salary so retained, free of the reduction and of the taxation. Commonwealth ex relat. Hepburn v. Mann, 5 Watts & Serg. 403. The authority of the constitutional provision and the void nature of the statutes were illustrated and enforced in the opinion of the Supreme Court, as given by Mr. Justice Rogers. But the decision of the court has been questioned, on the ground that the increased salary was subject to legislative control, under the restriction, however, that the allowance was not to be lessened in respect to the judges, or any of them, below that point at which it stood when they respectively came into office. This last construction is supported by the Federalist, No. 79, and by Mr. Justice Story in his Commentaries, in the remarks on a similar constitutional provision under the United States. The constitution of New York, as amended in 1821, is an exception to this remark, and it left the judiciary department in a more dependent condition, and under greater disabilities, than it found it, and greater than in any of those states in the Union, or in any of those governments in Europe, whose constitutions had been recently reformed. (a)
(a) By the constitutions of Massachusetts, Delaware, Maryland, Virginia, Kentucky, North Carolina, South Carolina, Florida, Missouri, and Illinois, the judges of the Supreme Courts hold their offices during good behavior. This was the case in Pennsylvania under the constitution of 1790; but by the amended constitution of 1838, the tenure of the judges, as to the term, was reduced; that of the judges of the Supreme Court to fifteen years, and of the president judges to ten years, and of the associate judges to five years. This was also the case in Louisiana, until the new constitution of that state, in 1845, which reduced the term of office to eight years. In the states of Maine, New Hampshire, and Connecticut, they hold during good behavior, or until seventy years of age, and in Missouri until sixty-five, and in New York, until lately, for [until] sixty years of age. In Tennessee, the judges of the Supreme Court hold their offices for twelve years, and of the inferior courts for eight years. In Arkansas, the judges of the Supreme Court hold their offices for eight years, and the judges of the Circuit Courts for four years; in the states of New Jersey, Ohio, Michigan, and Indiana, they hold for the term of seven years; in Alabama, Mississippi, and Texas, six years; and in Iowa, for four years. In Vermont and Rhode Island, they are annually elected. In Georgia, the judges of the Supreme Court for the Correction of Errors are to be elected for a term of years, to be prescribed by law, and the judges of the Superior Court for the term of four years. The judges of the Supreme Court consist of three, and by statute are elected for six years. The new
But though the Constitution of the United States has rendered the courts of justice independent of undue influence from the
constitution of Rhode Island, which was adopted in 1842, and went into operation in May, 1843, improved the tenure of the judicial office, by declaring that the judges of the Supreme Court should be elected by the legislature, and hold their offices respectively until the place of the judge be declared vacant by a resolution of the legislature passed by a majority of all the members elected to each house, at the annual session for the election of public officers. By the ordinance of Congress of July, 1787, for the government of the Northwest Territory, the commissions of the judges were to continue in force during good behavior. But the subsequent constitutions of Ohio and Indiana cut down that permanent tenure to one for seven years. The constitution of Alabama, in 1819, established the judicial tenure to be during good behavior; but the constitution has been since specially altered in that particular, so as to change the tenure to the term of six years. And by the first constitution of the State of Mississippi, in 1807, the judges held their offices during good behavior, or until sixty-five years of age, and were appointed by the joint vote of the two houses of the legislature, given viva voce, and recorded. But by the constitution, as amended and reordained in 1833, every officer in the government, — legislative, executive, and judicial, — is elected by the universal suffrage of the people; that is, by every free white male citizen of twenty-one years of age, who has resided within the state for one year preceding, and for the last four months within the county, city, or town in which he offers to vote. The judges of the Supreme Court of Errors and Appeals are thus chosen by districts for six years. The chancellor is elected for six years by the electors of the whole state. The judges of the Circuit Courts are elected in districts for four years. The judges of probates and clerks of courts are elected for two years, &c. This was carrying the democratic principle beyond all precedent theretofore in this country. In all the other states of the Union (at least until very recently) the judges of the higher courts of law and equity received their appointments either from the governor and council, or governor and senate, — as in Maine, Massachusetts, New Hampshire, New York, New Jersey, Maryland, Kentucky, Indiana, Louisiana, Missouri, and Michigan; or from the governor alone, — as in Pennsylvania and Delaware; or from the legislature, — as in Vermont, Rhode Island, Connecticut, Virginia, North and South Carolina, Georgia, Florida, Tennessee, Ohio, Illinois, Iowa, Alabama, and Arkansas. In Indiana, there is a peculiar qualification in the judicial appointments; for the Supreme Court is appointed by the governor and senate, the presidents of the Circuit Courts by the legislature, and the associate circuit judges are elected by the people. By the revised constitution of New York of 1846, a momentous revolution was effected in the mode of appointment, organization, and tenure of the judicial department, as well as in the appointment of officers generally. It was ordained that there should be a Court of Appeals, composed of eight judges, of whom four, to be elected by the electors of the state, for eight years, and four selected from the class of justices of the Supreme Court having the shortest time to serve; and the judges were to be so classified, that one should be elected every second year. There was to be a Supreme Court, having general jurisdiction in law and equity. The state was to be divided into eight judicial districts, and to have four justices of the Supreme Court in each district, and to be so classified, that one of the justices of each district shall go out of office at the end of every two years; and after the expiration of their terms under such classification, the term of their office shall be eight years. One or more of the judges of the Supreme Court, who is not a judge of the Court of Appeals, to be duly designated to preside at the general terms of the
other departments, it has made them amenable from any corrupt violation of their trust. The House of Representatives, as we
said courts to be held in the several districts, and any three or more of the justices (the presiding judge so designated to be one) to hold such general terms. Any one or more of them may hold special terms and Circuit Courts, and preside in courts of Oyer and Terminer in any county. The judges of the Court of Appeals and justices of the Supreme Court are to have a compensation for their services, not to be increased or diminished during their continuance in office. They are not to hold any other office or public trust, nor exercise any power of appointment to public office. The justices of the Supreme Court and judges of the Court of Appeals may be removed by concurrent resolutions of two-thirds of all the members elected to the assembly, and a majority of all the members elected to the senate. All other judicial officers and justices of the peace may be removed by the senate, on the recommendation of the governor. The judges of the Court of Appeals to be elected by the electors of the state, and the justices of the Supreme Court by the electors of the several judicial districts. One county judge to be elected in each of the counties of the state, except the city of New York, to hold his office for four years, and to hold the County Court, and perform the duties of surrogate. The County Court to have no original civil jurisdiction, except in special prescribed cases. But the county judge and two justices of the peace to hold Courts of Sessions, with criminal jurisdiction; and he is to receive an annual salary, to be fixed by the board of supervisors, and to be neither increased nor diminished during his continuance in office. Justices of the peace, for services in Courts of Sessions, to be paid a per diem allowance out of the county treasury. The legislature may provide for the election of a surrogate in counties where the population exceeds 40,000; and they may confer equity jurisdiction, in Special cases, upon the county judge, and establish inferior local courts, of civil and criminal jurisdiction, in cities. Justices of the peace are to be elected in each town at their annual town meeting, whose term of office is to be four years, and they may be removed in a due manner by the county, city, or state courts, as prescribed. The clerk of the Court of Appeals is to be ex officio clerk of the Supreme Court, and to he chosen by the electors of the state, and to hold his office for three years, and to be paid out of the public treasury. No judicial officer, except justices of the peace, shall receive any fees or perquisites of office.
This is the substance of the new judicial system, under the revised constitution of New York, and its very democratic character pervades the whole instrument. The central appointing power, with the extensive patronage which, under the prior constitutions of 1777 and 1821, existed in the governor and senate, is broken up and diffused through every part of the body politic. All offices of any moment now rest on popular election. Besides the judicial officers already mentioned, the Secretary of State, Comptroller, Treasurer, Attorney-General, a State Engineer and Surveyor, the Canal Commissioners, the Inspectors of State Prisons, the Clerk of the Court of Appeals, Sheriffs, Clerks of Counties, the Register and Clerk of the city of New York, District Attorneys, and generally all local officers, are to be chosen by popular election.
The revised constitution of New York of 1846 is more democratic than any of the state constitutions in the Union, and it contains more specific restrictions and limitations on the exercise of legislative power than are anywhere to be met with The convention seem to have most anxiously guarded against the influences of selfishness, intrigue, favoritism, and corruption, which have been supposed to have heretofore affected the action of the legislative department. All depends now upon the discreet
have already seen, is invested with the power of impeachment, and the judges may, by that process, be held to answer before the Senate, and, if convicted, they may be removed from office.
2. Its General Powers. — The federal judiciary being thus established on principles which are essential to maintain that department in a proper state of independence, and to secure the pure and vigorous administration of the law, the Constitution proceeded to designate, with comprehensive precision, the objects of its jurisdiction. The judicial power extends (b) l to all cases in law and equity arising under the Constitution, the laws, and treaties of the Union; 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;
exercise of the right of suffrage; and as the convention, in their circular address, truly observed, "the happiness and progress of the people of this state will, under God, be in their own bands." Perhaps the most unwise feature in the revised constitution is the election, by universal suffrage, and for comparatively short periods, of all judicial officers. The convention have disregarded, in this respect, the lessons taught by the former constitutions of 1777 and 1821, as well as the wisdom of the Constitution of the United States. The organization of the judicial department is not so essential as the supply of intelligent, learned, and honest judges to administer the laws. The danger to be apprehended, as all past history teaches us, in governments resting in all their parts on universal suffrage, is the spirit of faction, and the influence of active, ambitious, reckless, and unprincipled demagogues, combining, controlling, and abusing the popular voice for their own selfish purposes. Much more grievous would be such results when applied to the election of judges, for that would tend to break down and destroy the independence and integrity of the administration of justice.
The constitutional provision for making judges elective for short periods, by universal suffrage, is contagious, and every new constitutional reform or establishment tends that way. In the constitution of Wisconsin, established in 1846, the judges of the highest courts were to be elected for five years only.
In respect to the compensation of the judges of the Superior Courts, the constitutions of the states of Maine, Rhode Island, New Jersey, Pennsylvania, Delaware, Virginia, Tennessee, South Carolina, Georgia, Florida, Alabama, Ohio, Indiana, Illinois, Michigan, Missouri, Mississippi. Arkansas, and Louisiana either establish or direct the salaries to be fixed by law, and that they shall not be diminished during the continuance of the judges in office. In New Hampshire, North Carolina, and Kentucky, adequate and permanent, or fixed salaries, are directed to be provided by law. In other states (and New York is one of them) the compensation of the judges, and the duration of it, rest entirely in legislative discretion; for though the statute (as in New York) may declare that the judges shall have a specified annual salary, the statute is liable, at any future time, to legislative repeal.
(b) Art. 3, sec. 2. Amendments to the Constitution, art. 11.
1 Post, 326, n. 1.
to controversies between two or more states; to controversies between a state, when plaintiff, and citizens of another state, or foreign citizens or subjects; to controversies between citizens of different states, and between citizens of the same state, claiming lands under grants of different states; and between a state or citizens {296} thereof, and foreign states; and between citizens and foreigners. The propriety and fitness of these judicial powers seem to result, as a necessary consequence, from the union of these states in one national government, and they may be considered as requisite to its existence. The judicial power in every government must be coextensive with the power of legislation. It follows, as a consequence, that the judicial department of the United States is, in the last resort, the final expositor of the Constitution, as to all questions of a judicial nature. (a)l (x) Were there no power to interpret, pronounce, and
(a) The Federalist, Nos. 33, 39, 80; Story's Comm. on the Const. i. pp. 360, 362, 363, notes; Marshall, C. J., in Cohens v. Virginia, 6 Wheaton, 264, 384. The whole question is fully examined, and all the contemporary discussions in relation to it placed in a striking view, in Story on the Const. i. pp. 344-382..
1 But the judicial power seems to be limited as against a co-ordinate branch of the government. For when an injunction was sought to restrain the President from carrying out the Reconstruction Acts on the ground of their alleged unconstitutionality, Chase, C. J., said: "Suppose the bill filed, and the injunction prayed
for allowed. If ... the President complies with the order of the court, and refuses to execute the acts of Congress, ... may not the House of Representatives impeach the President for such refusal?" Mississippi v. Johnson, 4 Wall. 475, 500; post, 323, n. 1; ante, 254, n. (b).
(x) The courts are not given an immediate and general supervision of the constitutionality of the acts of the legislature. In Chicago & Grand Trunk Ry. Co. v. Wellman, 143 U. S. 339, 345, Brewer, J., said: "Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the Act be constitutional or not; but such an exercise of power is the
ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act."
The giving of advisory opinions "is not the exercise of the judicial function at all, and the opinions thus given have not the quality of judicial authority." Prof. James B. Thayer, in a learned article upon The Origin and Scope of the American Doctrine of Constitutional Law (7 Har-
execute the law, the government would either perish through its own imbecility, as was the case with the articles of confederation, or other powers must be assumed by the legislative body, to the destruction of liberty. That the interpretation of treaties, and the cases of foreign ministers and maritime matters, are properly confided to the federal courts, appears from the close connection those cases have with the peace of the Union, the confusion that different proceedings in the separate states would tend to produce, and the responsibility which the United States are under to foreign nations for the conduct of all its members. The other cases of enumerated jurisdiction are evidently of national concern, and they constitute one of the principal motives to union, and one of the principal cases of its necessity, which was the insurance of the domestic tranquillity. The want of a federal judiciary to embrace these important subjects was once severely felt in the German confederacy, and disorder, license, and desolation reigned in that unhappy country, until the establishment of the imperial chamber by the Emperor Maximilian, near the close of the fifteenth century; and that jurisdiction was afterwards the great source of order and tranquillity in the Germanic body. (b)
The judicial power, as it originally stood, extended to suits prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state; but the states were not willing to submit to be arraigned as defendants before the federal courts, at the instance {297} of private persons, be the cause of action what it might. The decision of the Supreme Court of the United States, in the case of Chisholm v. The State of Georgia, (a) decided in 1793, in which it was
(b) Robertson's Charles V. i. 183, 394, 397.
(a) 2 Dallas, 419.
vard L. Rev. 129, 153); which article argues that the power of the courts to declare legislative Acts constitutionally invalid, has been assumed by the courts and is only inferentially, and not expressly, derivable from the State constitutions. See also 28 Am. L. Rev. 614; 29 id. 711. Advisory opinions to the legislature are treated as addressed to the judges individually and not as a court, and as requiring an individual answer. See Justices' Opinion, 160 Mass. 593. In Re Pen-
itentiary Commissioners, (Col.) 35 Pac. Rep. 915, the Supreme Court of Colorado declined to give such an opinion ex parte, respecting a controversy which had already arisen, under a statute already enacted, especially as private rights were likely to be involved by litigation arising therefrom, but observed that the giving or withholding of such opinions did not wholly depend upon the fact whether objections were or were not made. See also In re University Fund, (Col.) 33 id. 415.
adjudged that a state was suable by citizens of another state, gave much dissatisfaction, and the legislature of Georgia carried their opposition to an open defiance of the judicial authority. The inexpediency of the power appeared so great, that Congress, in 1794, proposed to the states an amendment to that part of the Constitution, and it was subsequently amended in this particular, under the provision in the fifth article. It was declared by the amendment, (b) that the judicial power of the United States should 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. (a) The inhibition applies only to citizens or subjects, and does not extend to suits by a state, or by foreign states or powers (d) They retain the capacity to sue a state as it was originally granted by the Constitution; and the Supreme Court has original jurisdiction in the case of suits by a foreign state against one of the members of the Union. (e)1 (x)
(b) Amendments, art. 11.
(c) As the United States have no existence, as a political ideal being, except under the organization of the Constitution and laws of the United States, it is assumed as a principle flowing from the sovereignty of the United States, that the officers of the government are not subject to suits for acts in the regular discharge of their official duties. Opinions of the Attorneys-General, i. 457.
(d) The Cherokee Nation v. Georgia, 5 Peters, 1; New Jersey v. New York, ib. 284. A mandamus is a suit within the meaning of the Constitution, for it is a litigation of a right in a court of justice, seeking a decision. Weston v. City Council of Charleston, 2 Peters, 449; Holmes v. Jennison, 14 id. 564.
(e) Blair, J., and Cushing, J., in Chisholm v. State of Georgia, 2 Dallas, 419. That a foreign prince or state may sue in our own as well as in the English courts of law and equity, see King of Spain v. Oliver, 1 Peters C. C. 276; The Colombian Govern-
1 As to the word "suit," see Ex parte Milligan, 4 Wall. 2, 112 et seq.; post, 326, n. 1.
A foreign sovereign may sue to prevent injury to property of himself or his subjects. On this ground Kossuth was enjoined at the suit of the Emperor of
Austria from making notes purporting to be receivable as money in Hungary, and to be guaranteed by that state, although they were not imitations of any notes then current. Emperor of Austria v. Day & Kossuth, 3 De G., F. & J. 217. See Hullett v. King of Spain, 1 Dow & C. 169;
(x) A suit lies by a foreign sovereign in either a Federal or State Court to protect the property of his nation; and such suit is not abated by his death or deposition while it is pending. The Sapphire, 11 Wall. 164; Wisconsin v. Pelican Ins. Co.,
127 U. S. 265, 290; King of Prussia v. Kuepper, 23 Mo. 553. A foreign sovereign may be required, as a non-resident plaintiff, to give security for costs when suing upon a commercial transaction. The Beatrice, 36 L. J. Adm. 10; Republic of
With these general remarks on the constitutional principles of the judiciary department and the objects of its authority, we
ment v. Rothschild, 1 Sim. 104; King of Spain v. Machado, 4 Russ. 238; 1 Dow, P. C. N. S. 165, S. C. No direct suit can be maintained against the United States, without the authority of an act of Congress, nor can any direct judgment be awarded against them for costs. Marshall, C. J., in Cohens v. Virginia, 6 Wheaton, 411, 412; United States v. Clarke, 8 Peters, 444; United States v. Barney, Dist. C. Maryland, 3 Hall, L. J. 128; United States v. Wells, 2 Wash. 161; Op. Att.-Gen. ii. 967, 968. But if an action be brought by the United States to recover money in the hands of a party, he may, by way of defence, set up any legal or equitable claim he has against the United States, and need not, in such case, be turned round to an application to Congress. Act of Congress, March 3, 1797, c. 74, sec. 3, 4; United States v. Wilkins, 6 Wheaton, 135, 143; Walton v. United States, 9 Wheaton, 651; United States v. Macdaniel, 7 Peters, 16; United States v. Ringgold, 8 Peters, 163; United States v. Clarke, ib. 436; United States v. Robeson, 9 Peters, 319; Same v. Hawkins, 10 Peters, 125; Same v. Bank of the Metropolis, 15 Peters, 377. In the
United States v. Prioleau, 2 H. & M. 559. And a foreign republic, which has been recognized by a government, may sue in the courts of the latter in its own name, and without joining any party as plaintiff who can be compelled to give discovery. United States of America v. Wagner, L. R. 2 Ch. 582; Republic of Mexico v. De Arangois, 5 Duer, 634. But a foreign sovereign cannot sue, it seems, to restrain acts which only violate his political privileges, Kossuth's Case, supra; and he cannot be sued in England for an act done in his sovereign character in his own country, Duke of Brunswick v. King of Hanover, 2 H. L. C. 1; Gladstone v. Otto-
man Bank, 1 H. & M. 505. Compare further, Smith v. Weguelin, L. R. 8 Eq. 199; Gladstone v. Musurus Bey, 1 H. & M. 495; Penn. Law J. Dec. 1847, p. 97. [Suits may be maintained by foreign sovereigns in the United States courts wherever they have a cause of action of a civil nature. The Sapphire, 11 Wall. 164. See further, Republic of Peru v. Weguelin, 20 L. R. Eq. 140; Costa Rica v. Erlanger, 1 Ch. D. 171. In general, a sovereign cannot be sued in the courts of a foreign jurisdiction; but if the sovereign sues in such courts, the defendant may file a counterclaim or set-off. And such sovereign may be joined as defendant in a suit
Costa Rica v. Erlanger, 3 Ch. D. 62. In New York, a foreign independent government, which sues as a plaintiff there, may be required to give security for costs as a non-resident, under the Code of Civil Proc. § 3268. Republic of Honduras v. Soto, 112 N. Y. 310; Republic of Mexico v. De Arrangois, 3 Abb. Pr. 470. As to the status of the Pope as a foreign sovereign, see 21 Journal du Droit Int. 835.
A foreign government cannot be coerced by suing its minister or agent. Manning v. Nicaragua, 14 How. Pr. 517. And the
former president of a foreign republic cannot be sued here, for sovereign acts of his government. Hatch v. Baez, 7 Hun, 596 But a Court of Chancery may administer a trust fund in its custody, although a foreign sovereign who is interested in it may not think fit to come before the Court in a suit relating thereto. Morgan v. Larivière, L. R. 7 H. L. 423; L. R. 7 Ch. 550. The existence of the trust must not be in dispute; for if this is denied with respect to funds in the possession of an agent of the foreign government within the jurisdiction, the suit
proceed to a particular examination of the several courts of the United States, as ordained by law.
case of the late Bank of the United States, who claimed damages by way of set-off on a protested bill drawn by the United States, the Attorney-General, in an elaborate official opinion, held that the set-off could not be allowed in a suit by the United States against the bank, for dividends due the United States, and withheld. Op. Att.-Gen. ii. 964, 982. But in the same case of the Bank of the United States v. The United States, in 2 How. 711, the United States sued the bank for dividends withheld; and the bank, by way of set-off, claimed 15 per cent damages, under the law of Maryland (which on this point was the law at the city of Washington), on a protested bill drawn by the government of the United States on France, and taken by the bank as first indorsee, and presented at Paris for payment, and protested for non-payment, and taken up by a banking-house in Paris, supra protest, for the honor of the Bank of the United States, which was the first indorser. It was held, by a majority of the court, that the bank, on satisfying the banking-house in Paris, became the lawful holder of the bill, and as such holder entitled to the damages by way of set-off against
to obtain property in the jurisdiction of the court, on which both plaintiff and the foreign sovereign have claims. Strousberg v. Costa Rica, 44 L. T. 199. The property of a foreign sovereign is also exempt from molestation, with certain exceptions. Vavasseur v. Krupp, 9 Ch. D. 351; The Charkieh, 42 L. J. Adm. 17. — B.]
As to suits to which a state is a party, see p. 400 and notes.
It is not uncommon in modern times for sovereign powers to allow proceedings against themselves in their own courts. But in the absence of statute, the old principle has been held applicable to the
United States. Hill v. United States, 9 How. 386; United States v. McLemore, 4 How. 286; The Siren, 7 Wall. 152, 254; Case v. Terrell, 11 Wall. 199; iii. 171, n. 1. And a state may withdraw its consent after a suit has been begun against it. Beers v. Arkansas, 20 How. 527. [See Carr v. United States, 98 U. S. 433; United States v. Lee, 106 U. S. 196. In this last case, it is held, in an elaborate opinion by Mr. Justice Miller, that an action of ejectment will lie against officers of the government in possession of property used for public purposes, and held only for the United States, and
cannot proceed in the absence of such government. Wright v. Mills, 63 L. T. 186. See Gladstone v. Ottoman Bank, 1 H. & M. 505; Twycross v. Dreyfus, 5 Ch. D. 605. The negotiation by a government of a loan in a foreign country does not introduce into the contract the peculiar laws of such country. Smith v. Weguelin, L. R. 8 Eq. 212; Goodwin v. Robarts, 1 App. Cas. 476; L. R. 10 Ex. 76, 337. A suit cannot be maintained in England upon the bonds of a foreign government. Ibid.; Crouch v. Credit Foncier of England, L. R. 8 Q. B. 374; Twycross v. Dreyfus, 5 Ch. D. 605.
The only exceptions to the rule that a foreign sovereign or State cannot be sued in the English courts, are: (l) When he sues as plaintiff, he is liable, when just, to respond upon the defendant's counterclaim or cross-action; (2) notice may be ordered to him of a suit against funds in the hands of third parties within the jurisdiction. Strousberg v. Republic of Costa Rica, 44 L. T. (N. S.) 199. The property of a foreign sovereign cannot be reached by a suit in rem. The Constitution, 4 P. D. 39; The Parlement Beige, 5 P. P. 197. In The Charkieh, L. R. 4 Adm. & Ecc. 59, it was said that a sovereign who as-
3. Jurisdiction of the Supreme Court. — {298} The Supreme Court was instituted by the Constitution, which ordained
the United States as drawer, in like manner as any individual holder of a protested bill would be. Mr. Ch. J. Taney, who was the Attorney-General that gave the opinion alluded to in the former part of this note, added a new opinion founded on the special circumstances of the case, against the allowance of the set-off, denying that the United States were bound, either in law or equity, to pay, or the bank entitled to claim, the contested damages. Independent of anything special in the case, the general doctrine of the decision was sound and unquestionable. To entitle the party to his set-off, his claim must have been previously submitted to the accounting officers of the treasury and been disallowed, or he must reasonably account for the omission. See sec. 3 and 4 of the act aforesaid. In the case Ex parte Madrazzo, 7 Peters, 627, a subject of the King of Spain filed a libel in the admiralty against the State of Georgia, alleging that the state was in possession of moneys, being the proceeds of certain property belonging to him, and claiming a right to institute a suit in the admiralty for the same, and that the 11th amendment to the Constitution of the United States did not take away the jurisdiction of the courts of the United States in suits in admiralty against a state. But on appeal from the decree of the Circuit Court, sustaining the libel, to the Supreme Court of the United States, it was held that the proceeding in question was a mere personal suit against a state, to recover property in its possession; and that a private person could not commence such a suit; and
hence that the court had jurisdiction to determine the validity of the title of the United States. An equally elaborate dissenting opinion was delivered by Mr. Justice Gray, and concurred in by Justices Woods and Bradley, and Waite, C. J., holding that the court had no such
jurisdiction. Chesapeake, &c., R. R. Co. v. Miller, 19 W. Va. 408. The consent must be by the legislature. Goldsmith v. Revenue Cutter, 6 Oreg. 250. The immunity may be waived. Clark v. Barnard, 108 U. S. 436. — B. ]
Court of Claims. (x) — It was not until
sumes the character of a trader, waives his privilege; but this view will not be taken in the Courts of the government against which the suit is brought. Troy & Greenfield Railroad v. Commonwealth, 127 Mass. 43; United States v. Clarke, 8 Pet. 436; Curran v. Arkansas, 15 How. 304; The Davis, 10 Wall. 15; Carr v. United States, 98 U. S. 433; Long v. The Tampico, 16 Fed. Rep. 491. An assignment of a claim against a foreign government, made before it is established, will be upheld in Equity. Peugh v. Porter, 112 U. S. 737.
A foreign sovereign, residing in England, cannot be sued there against his will for breach of a contract of marriage which he has there entered into under an
assumed name. A certificate from the Foreign or Colonial office, as the case may be, is conclusive as to such sovereign's status. Mighell v. Sultan of Johore, [1894] 1 Q. B. 149; see 21 Journal du Droit Int. 576; Hettihewage Siman Appu v. Queen's Advocate, 9 App. Cas. 571, 588. (x) By the "Bowman Act" (22 St. at L. 485) claims pending in Congress, which involve the investigation of facts, and claims or matters pending in any executive department which may involve contraverted questions of law or fact, may be transmitted to the Court of Claims for adjustment. See Taylor v. United States, 25 Ct. Cl. 75; Moore v. United States, id. 82; Conard v. United States, id. 433. The "Tucker Act" (Mar. 3, 1887, 24 St.
that "the judicial power of the United States should be vested in one Supreme Court, and in such inferior courts as Congress
that it was not a case where the property was in the custody of a court of admiralty, or brought within its jurisdiction, and in possession of any private person. The jurisdiction would seem to have been impliedly admitted in the latter case. A state cannot be sued in its own courts without its consent. Michigan State Bank v. Hastings, Walker, Ch. (Mich.) 9. This is an attribute of sovereignty and of universal law. But a foreign sovereign may voluntarily become a party to a suit in the tribunals of another country, and have his rights asserted and enforced. And it was declared in the case of The Exchange, 7 Cranch, 116, that all persons and property within the territorial jurisdiction of any sovereign were amenable to the local jurisdiction, with such exceptions only as common usage and public policy had allowed. The result is, (1.) That no citizen of any of the United States, or subject of a foreign state, can sue a state. (2.) That a foreign state may sue one of the United States before the Supreme Court of the United States, and there only. (3.) That the United States cannot be sued. (4.) That the United States may sue a state, and perhaps they may, as a bona fide assignee of an individual creditor of a state, and perhaps an individual state, or a foreign state, as such assignee, may do it. See Hamilton's Report on Public Credit, 1790, p. 9. This last point is without any judicial support that I am aware of; and it may be questioned how far voluntary assignments, made and accepted for the sake of the remedy, would be available.
1855 that steps were taken to remedy this failure of justice, and the act of Feb. 24 (10 U. S. St. at L. 612, c. 122) established a court for the investigation of certain claims against the United States. This board, however, had no power to render final judgments, or to do more than to make a favorable or adverse report to Congress. And it was only by the act of March 3, 1863 (12 U. S. St. at L. c. 92, p. 765), that it became an independent court. It still has the jurisdiction given by the earlier statute over all
claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States, which may be suggested to it by a petition filed therein; and also all claims which may be referred to said court by either house of Congress; and it cannot qualify its jurisdiction by rules. Clyde v. United States, 13 Wall. 38. The act of 1863, § 2, provides that petitions, &c., for the satisfaction of such private claims against the government shall be
at L. 505) defines the jurisdiction of this court. See this act fully annotated in Gould & Tucker's Notes on the U. S. Statutes, p. 353. See also United States v. Tinsley, 68 Fed. Rep. 433; Cole v. United States, 29 Ct. Cl. 47. The French Spoliation Claims were referred to this court by 23 St. at L. 283; also claims for depredations of friendly Indians, by 26 St. at L. 851. The claims of the Pottawatomie Indians were also referred to the Court of Claims by 23 Stat. at L. 372; 26 id. 1021.
After the decision in Bonner v. United States, 9 Wall. 156, that the Court of Claims had no jurisdiction of a suit founded upon equitable considerations, the Act of Mar. 3, 1887 (24 St. at L. 505) was passed, allowing suits against the government in that court either at law, in equity, or admiralty, and also allowing suits on such claims, if not exceeding $1,000 in value for the district courts, and $10,000 in value for the circuit courts, to be brought in the district where the claimant resides. See Jones v. United
might from time to time ordain and establish." (a) (x) But it received its present organization from Congress, for the Consti-
(a) Art. 3, sec. 1.
transmitted to the court unless it is otherwise resolved by the house in which they are presented. Section 3 gives additional jurisdiction of all set-offs, counter-claims, &c., on the part of the government against the claimant, and the court may give judgment in favor of the government for the balance found due to it, if any. [See Allen v. United States, 17 Wall. 207. The provision is not rendered void by the seventh amendment to the Constitution. McElrath v. United States, 102 U. S. 426. — B.] It may be mentioned that the rule is otherwise when the United States is plaintiff; for under the statutes allowing a set-off in that case, no judgment can be rendered against the government, although a balance be shown in the defendant's favor. United States v. Eck-
ford, 6 Wall. 484 (citing De Groot v. United States, 5 Wall. 419, 432); Watkins v. United States, 9 Wall. 759.
The jurisdiction of the court is extended to claims of owners of property abandoned or captured during the rebellion, by act of March 12, 1863 (12 U. S. St. at L. c. 120, p. 820). It has been thought to be exclusive. Elgee v. Lovell, 1 Woolw. 102, 117. Compare Mail Co. v. Flanders, 12 Wall. 130, 135. And held not to be subject to appeal by the claimant. Pargoud's Appeal, 4 Ct. of Cl. 349. It is not to include claims growing out of destruction or appropriation of, or damage to, property by the army or navy during the war. July 4, 1864 (13 U. S. St. at L. c. 240, p. 381); Filor v. United States, 9 Wall. 45; United States v. Russell, 13
States, 13 Sawyer, 341, 346; United States v. Jones, 131 U. S. 1; Southern Pac. R. Co. v. United States, 38 Fed. Rep. 55; Johnson v. United States, 6 Utah, 403. The findings of this court upon matters referred to it by a department under the Act of 1887, § 12, with the claimant's consent, is merely advisory, and not subject, as a judgment, under § 9, to review by the Supreme Court. In re Sanborn, 148 U. S. 222; 27 Ct. Cl. 485; See Armstrong v. United States, 29 id. 148; Cotton v. United States, id. 207.
The Court of Claims cannot entertain a suit against the government founded upon a tort: Schillinger v. United States, 155 U. S. 163; United States v. Palmer, 128 U. S. 262; Carpenter v. United States, 45 Fed. Rep. 341; or upon the infringement of a patent, apart from con-
(x) Upon the history of the U. S. Supreme Court, see Mr. H. L. Carson's History in the Centennial volume, and the
tract: United States v. Berdan, F. M. Co., 156 U. S. 552; or upon a treaty with a foreign nation: Great Western Ins. Co. v. United States, 112 U. S. 193; Ailing v. United States, 114 U. S. 564; Burthe v. Denis, 133 U. S. 514; The Ganges, 25 Ct. Cl. 110; not including, however, a claim originally based upon a treaty but really founded, as in the Alabama Claims, upon an appropriation made by Congress in pursuance thereof: United States v. Weld, 127 U. S. 55; Williams v. Heard, 140 U. S. 537. As to claims upon "implied contract," see United States v. Gill, 20 Wall. 517; United States v. Palmer, 128 U. S. 262; Hollister v. Benedict Manuf. Co., 113 U. S. 59, 67; McAleer v. United States, 25 Ct. Cl. 238; Gill v. United States, id. 415; Central Pacific R. Co. v. United States, 28 id. 427;
essay of Mr. Westel W. Willoughby (John Hopkins' series).
tution had only declared, in general terms, that there should be a Supreme Court, with certain original and appellate powers.
Wall. 623; Pugh v. United States, ib. 633; United States v. Kimball, ib. 636. The Supreme Court has determined that the Court of Claims has not jurisdiction of claims against the government founded in fact on the unauthorized torts of its agents, although in form on an implied contract. Gibbons v. United States, 8 Wall. 269. [Langford v. United States, 101 U. S. 341.] Nor of suits founded on merely equitable considerations. Bonner v. United States, 9 Wall. 156. Persons complaining of exactions under the revenue laws are confined to the remedies which those statutes furnish. Nichols v. United States, 7 Wall. 122. [Where the suit is to recover money which the United States has obtained by fraud of its agents, the court has jurisdiction. United States v. State Bank, 96 U. S. 30; Boughton v. United States, 12 Ct. of Cl. 330. As to its equitable jurisdiction, see Burke v. United States, 13 Ct. of Cl. 231. The jurisdiction does not extend to claims under treaties. Ex parte Atocha, 17 Wall. 439; Langford v. United States,
12 Ct. of Cl. 338. See Knote v. United States, 95 U. S. 149, 156. See further, as to claims under revenue laws, United States v. Kaufman, 96 U. S. 567; S. C. 11 Ct. of Cl. 659; Campbell v. United States, 12 Ct. of Cl. 470; Ramsey v. United States, 14 id. 367. — B.]
When sec. 14 of the act of 1863 was in force, it was construed to give the Secretary of the Treasury power to revise all the decisions of the Court of Claims requiring payment of money. This was held to take away the judicial character of the court, and to make an appeal to the Supreme Court of the United States impossible. Post, 326, n. 1; Gordon v. United States, 1 Nott & H, xxxiii, note, 2 Wall. 561. The section was repealed after the rendering of the above decision, by the act of March 17, 1866, 14 U. S. St. at L. 9, and a claimant has now an appeal as of right when the amount in controversy exceeds $3,000. United States v. Adams, 6 Wall. 101; Ex parte Zellner, 9 Wall. 244.
An appeal is given on behalf of the
McArthur v. United States, 29 id. 191; Merriam v. United States, id. 250; Forehand v. United States, 17 Wash. L. R. 37. The Act of Mar. 3, 1887, ch. 359 (24 St. at L. 505) allows suits to be brought against the United States upon express or implied contracts, and the United States may file set-offs or counterclaims in such suits. As to interest upon claims appealed to the Supreme Court, see 26 St. at L. 537; Harvey v. United States, 113 U. S. 243; United States v. Jones, 131 U. S. 1; White v. Arthur, 10 Fed. Rep. 83, 87. The limitation as to claims against the United States is six years. See 24 St. at L. 505; Ford v. United States, 116 U. S. 213; Finn v. United States, 123 U. S. 227; United States v. Louisiana, 127 U. S. 182; Buck v. United States, 25 Ct. Cl. 120;
Warder v. United States, id. 159. The Court of Claims may, within two years after its judgment, grant anew trial. Belknap v. United States, 150 U. S. 588. The prosecution of claims against the United States in the Court of Claims, or the Supreme Court, is wholly dependent upon the acts of Congress. United States v. Gleeson, 124 U. S. 255. Technical objections to the pleadings are not favored in this court. See United States v. Behan, 110 U. S. 338; United States v. Old Settlers, 148 U. S. 427; Chappell v. United States, 34 Fed. Rep. 673. A State may prosecute in the Court of Claims its demand against the United States, if founded upon a Federal law. United States v. Louisiana, 123 U. S. 32.
It consists of a chief justice and eight associate justices, any five of whom make a quorum; and it holds one term annually, at the seat of government, commencing on the first Monday in December, and continued at discretion. (b) But though five of the judges are requisite for business in general, yet any one or more of them may make all necessary orders in a suit, preparatory to the hearing or trial, and continue the court from day to day, in the absence of a quorum; and the judge of the fourth circuit attends at the city of Washington, on the first Monday of August, annually, for interlocutory matters.
The Supreme Court has exclusive jurisdiction of all controversies of a civil nature, where a state is a party,1 except between a state as defendant and its citizens; and except, also, between a state as defendant, and citizens of other states or aliens, in which cases it has no jurisdiction; but in all these cases where a state is plaintiff, it has original but not exclusive jurisdiction. (y) It has, also, exclusively, all such jurisdiction of suits, or proceedings against ambassadors, or other public ministers, or their
(b) Acts of Congress of April 29, 1802; February 24, 1807, sec. 5; May 4, 1826: January 21, 1829 [c. 12]; March 3, 1837, c. 34; and of 17th June, 1844, c. 96.
United States from all final judgments adverse to the United States. Act of June 25, 1868, 15 U. S. St. at L. c. 71, p. 75, § 1.
Only such aliens as are citizens or subjects of a government which accords to citizens of the United States the right to prosecute claims against such government in its courts can sue in the Court of Claims under the abandoned and captured property acts before mentioned. Act of July
27, 1868, c. 276, § 2, 15 U. S. St. at L. 243. A British subject is not prevented from suing by this act, United States v. O'Keefe, 11 Wall. 178; nor a Prussian, Brown's Case, 5 Ct. of Cl. 571; nor a French, Rothschild's Case, 6 Ct. of Cl. 204; nor a Spanish, Molina's Case, 6 Ct. of Cl. 269; nor a Swiss, Lobsiger's Case, 5 Ct. of Cl. 687. 1 Post, 323, n. 1.
(y) The original jurisdiction of the Supreme Court was intended to be exercised sparingly, and not to be extended by construction. California v. So. Pac. Ry. Co., 157 U. S. 229. In the constitutional grant to it (Art. III., sec. 2) of judicial power in "all cases, in law and equity, arising under this constitution," &c., the clauses providing for cases where a State is a party, only distribute the jurisdiction under the first clause and do not add to such
jurisdiction; and in a suit between a State and citizens of another State the parties' character is the vital consideration, the addition of a Federal question being immaterial. Ibid. Under that constitutional provision this court may entertain an original suit by the United States against a state to settle the boundary between a State and a Territory. United States v. Texas, 143 U. S. 621.
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. (c)2 The Supreme Court was also clothed by the Constitution(d) "with appellate jurisdiction, both as to law and fact, {299} with such exceptions and under such regulations as Congress should make;" and, by the Judiciary Act of 1789, appeals lie to this court from the circuit courts, and the courts of the several states. (x) Final judgments and decrees, in civil actions and suits in equity, in the circuit courts of the United States, whether brought there by original process, or removed there from the state courts, or by appeal from the district courts, in cases where the matter in dispute exceeds two thousand dollars, exclusive of costs, may be re-examined by writ of error, and reversed or affirmed, in the Supreme Court. (a)1 Final judg-
(c) Act of Congress, September 24, 1789, sec. 13.
(d) Art. 3, sec. 2.
(a) Act of Congress of September 24, 1789, sec. 22. In the cases of Gordon v. Ogden, and Smith v. Honey, 3 Peters, 33, 469, it was decided, that whatever may have been the amount claimed by the plaintiff in the court below, if the judgment in his favor be less than $2,000, and the writ of error has been sued out by the defendant below, the court has not jurisdiction; but if the writ of error be brought by the plaintiff below, and the amount claimed in his declaration exceeded $2,000, the court has jurisdiction, because, if the judgment be reversed, he may recover what he claims. [Knapp v. Banks, 2 How. 73; Bennett v. Butterworth, 8 How. 124.]
2 Post, 314, and note.
1 Review of Decisions of Circuit Courts. — A judgment of the Circuit Court may be reviewed without regard to the sum in dispute in civil actions brought by the United States for the enforcement of the revenue laws, or the collection of duties on merchandise imported. Act of May
31, 1844. See United States v. Carr, 8 How. 1. Or in any case under the copyright or patent laws. Act of July 8, 1870, 16 U. S. St. at L. 198, c. 230, §§ 56, 107; Philips v. Nock, 13 Wall. 185. Or in any civil action against a collector or other officer of the revenue for official acts or money exacted by him and paid
(x) Under the Act of Mar. 3, 1887, authorizing suits against the United States in the lower courts, the Supreme Court reviews cases at law on writ of error, and equity and admiralty cases on appeal. Chase v. United States, 155 U. S. 489. The acts relating to the jurisdiction of the Supreme Court are collected in the Supplement to U. S. Rev. Stats. p. 901,
note. The appellate powers of this court are granted by the Constitution, but are regulated and defined by the Acts of Congress. Nat. Ex. Bank v. Peters, 144 U. S. 570. They extend over the judicial acts of all inferior courts established by Congress under the Constitution. United States v. Coe, 155 U. S. 76.
ments and decrees in the circuit courts, in cases of admiralty and maritime jurisdiction, and of prize or no prize, where the
into the United States treasury. Act of March 27, 1868, c. 34, 15 U. S. St. at L. 44. Or in any suit or prosecution, civil or criminal, commenced in a state court, for any wrong done or act omitted during the rebellion under color of any authority from the President or any act of Congress, such suit, &c., having been removed to the Circuit Court. Act of March 3, 1863, c. 81, § 6, 12 U. S. St. at L. 757. See 303, n. 1. Or in questions of law, under the Civil Rights Bill of April 9, 1866. The Ku-Klux Act of April 20, 1871, c. 22, § 1, 17 U. S. St. at L. 13, gives the same rights of appeal, &c., as the Civil Rights Bill. But under the Bankrupt Act of March 2, 1867, § 9, the matter in dispute must exceed |2,000.
As to the mode in which a criminal case can be taken from the Circuit to the Supreme Court, see 335, n. 2. Ex parte Gordon, 1 Black, 503. As to habeas corpus, see 301, n. 1. [The act of Feb. 16, 1875 (18 St. at L. 315), provided that the circuit courts sitting in admiralty shall make separate findings on the law and on the facts, and the right of trial by jury upon the facts is given. Since the passage of this act the Supreme Court has treated the findings of fact in the lower court as conclusive. (y) The Abbotsford, 98 U. S. 440; The Benefactor, 102 U. S. 214.
By the same statute, the amount necessary in any case to give a right to have the action of the Circuit Court reviewed is increased from $2,000 to $5,000. In estimating the amount necessary to give the Supreme Court jurisdiction on appeal, distinct judgments in favor of different plaintiffs cannot be added together. Ex parte Baltimore & Ohio R. Co., 106 .U. S. 5, and cases cited; The Connemara, 103 U. S. 754. See further, Town of Elgin v. Marshall, 106 U. S. 578, 582; Whitsitt v. R. R. Co., 103 U. S. 770. As to the power of the Supreme Court to review decisions of the Circuit Court on questions of fact where there has been a waiver of a jury trial, see Boogher v. Ins. Co., 103 U. S. 90; Supervisors v. Kennicott, ib. 554.
By statute of March 3, 1875 (18 St. at L. 470), a right of review by the Supreme Court is given in case of an order of the Circuit Court dismissing a suit for want of jurisdiction, or remanding a suit which has been removed from a state court. Ayers v. Chicago, 101 U. S. 184. A right of review was given in all cases under the Civil Rights Act (18 St. at L. 335); but the act itself has been declared unconstitutional. The Civil Rights Cases, 109 U. S. 3.
The Supreme Court reviews proceed-
(y) See Alexandre v. Machan, 147 U. S. 72. Upon an appeal in admiralty on the instance side the Circuit Court is to state the law and the facts separately. The Gazelle, 128 U. S. 474. Whatever was matter of fact in a State court, whose action is reviewed by this court, is matter of fact there. Lloyd v. Matthews, 155 U. S. 222. By the Act of Feb. 25, 1889 (25 St. at L. 693) in appeals and writs of error from the circuit and district courts where the amount involved is less than $5,000, the review by the Supreme Court is limited
to questions involving the jurisdiction of those courts. See Ambler v. Eppinger, 137 U. S. 480.
Under § 5 of the judiciary act of Mar. 3, 1891, the Supreme Court cannot take jurisdiction of an appeal or writ of error from a district or circuit court, in which the jurisdiction is the only issue, without the certificate of the lower court presenting that question for its determination. Maynard v. Hecht, 151 U. S. 324; Colvin v. Jacksonville, 157 U. S. 368; Hudson v. Parker, 156 U. S. 277; see infra, 330, n. (x)
matter in dispute exceeds two thousand dollars, exclusive of costs, may be reviewed on appeal in the Supreme Court:(b) and in admiralty and prize cases new evidence is admitted to be receivable on appeal in the Supreme Court. (c) This admission is con-
(b) Though seamen may sue jointly for wages in the admiralty, under shipping articles for the same voyage, their contracts are treated as distinct: and though several claims of this description, contained in one suit, amount in the aggregate to more than $2,000, that is not sufficient to give jurisdiction on appeal to the Supreme Court. Oliver v. Alexander, 6 Peters, 143; Conkling's Treatise (2d ed.), 32; [Rich v. Lambert, 12 How. 347; compare Shields v. Thomas, 17 How. 3.]
(c) Act of Congress, March 3, 1803, [c. 40,] sec. 2. It was decided, in United States v. Goodwin, 7 Cranch, 108, that in civil cases at law, the judgment of the Circuit Court is final, where the cause is removed by writ of error from the District Court, and no writ of error lies therefrom in such cases to the Supreme Court of the United States. See 2 Wheaton, 395; 12 Peters, 143, S. P. But by the act of Congress of July 4, 1840, c. 43, sec. 3, this distinction was abolished, and writs of error now lie to the Supreme Court from all judgments of a circuit court in cases brought there by writs of error from the District Court, in like manner as if the suit had been originally brought in the Circuit Court.
ings of inferior United States courts on habeas corpus to the extent only of determining whether such courts had jurisdiction. Ex parte Carll, 106 U. S. 521; Ex parte Mason, 105 U. S. 696; Ex parte Virginia, 100 U. S. 339; Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 U. S. 18; In re Stupp, 12 Blatch. 501. — B.]
Review of Decisions of other United States Courts. — See, as to appeals from the Court of Claims, ante, 297, n. 1.
Writs of error and appeals from the final decisions of the supreme courts of the territories in like manner as from the circuit courts, are given by the acts organizing the territories. Freeborn v. Smith, 2 Wall. 160. And see act of June 12, 1858, § 18. So from the Supreme Court of the District of Columbia. Act of March 3, 1863, § 11. See Campbell v. Read, 2 Wall. 198; Brown v. Wiley, 4 Wall. 165; Garnett v. United States, 11 Wall. 256; Ex parte De Groot, 6 Wall. 497. [By statute of April 7, 1874 (18 St. at L. 27), the appellate jurisdiction of the Supreme Court over territorial courts is to be exercised by writ of error where there was a trial by jury, and by appeal where
there was none. Hecht v. Boughton, 105 U. S. 235. By act of Feb. 25, 1879 (20 St. at L. 320), the amount necessary to give Supreme Court a right to review decisions of Supreme Court of District of Columbia is increased from $2,000 to $2,500, and this applied to cases then pending. Dennison v. Alexander, 103 U. S. 522. — B.]
See, as to what are final judgments, post, 316, n. 1.
Appeals from the district courts in prize causes lie directly to the Supreme Court, when the amount in controversy exceeds $2,000, and in other cases when the judge certifies that a question of general importance is involved. Act of June 30, 1864, c. 174, § 13, 13 U. S. St. at L. 306. See The Alicia, 7 Wall. 571.
The United States may take appeals, &c., to the United States Supreme and Circuit Courts without giving security for costs. Acts of Feb. 21, 1863, c. 50, 12 St. at L. 657; July 27, 1868, c. 255, 15 St. at L. 226. As to time within which writs of error and appeals must be taken, see act of June 1, 1872, § 2.
formable to the doctrine and usage of appellate courts of admiralty, permitting the parties, upon the appeal, to introduce new allegations and new proofs, and to add new counts to the libel. (d) So, also, a final judgment or decree, in any suit in the highest court of law or equity of a state, may be brought up on error in point of law, to the Supreme Court of the United States, provided the validity of a treaty, or statute of, or authority exercised under, the United States, was drawn in question in the state court, and the decision was against that validity; or provided the validity of any state authority was drawn in question, on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision was in favor of its validity; or provided the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, was drawn in question, and the decision was against the title, right, privilege, or {300} exemption, specially claimed under the authority of the Union. (a)1 Upon error from a decision in a state court, no other error can be assigned or regarded than such as appears upon the face of the record, and immediately respects the questions of validity, or construction of the Constitution, treaties, (x) statutes, commissions, or authorities in dispute.
The Supreme Court is also armed with that superintending authority over the inferior courts which ought to be deposited in the highest tribunal and dernier resort of the people of the United
(d) The Marianna Flora, 11 Wheaton, 1, 38; Foster v. Gardiner, C. C. Mass. Amer. Jur. ii. 21.
(a) Act of Congress of September 24, 1789, sec. 25.
1 See the very similar act of Feb. 5, 1867, 14 U. S. St. at L. 386, c. 28, § 2, which extends to cases "where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held, or authority exercised under, the United States, and the decision is against the title, right,
privilege, or immunity specially set up or claimed by either party under such Constitution," &c. But this does not apply to the case of any person in military custody charged with a military offence or with having aided or abetted rebellion. Vide post, 326, n. 1, 316, n. 1, for some questions under this act.
(x) Questions relating to the rights of parties under a foreign treaty cannot be first raised in the U. S. Supreme Court, when the record does not show that they were raised in the court below. Spies v.
Illinois, 123 U. S. 131. The appellate jurisdiction does not exist in a suit for a share of an award under a treaty, its construction or validity not being involved. Borgmeyer v. Idler, 159 U. S. 408.
States. It has power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and 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. (b) This court, and each of its judges, have power to grant writs of ne exeat and of injunction; but the former writ cannot be granted unless a suit in equity be commenced, and satisfactory proof be made that the party designs quickly to leave the United States; and no injunction can be granted to stay proceedings in a state court, nor in any case, without reasonable notice to the adverse party. (c) All the courts of the United States have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. (d) {301} So the judges
(b) Act of September 24, 1789, sec. 13.
(c) Act of Congress, March 2, 1793, [c. 57,] sec. 5.
(d) Act of September 24, 1789, sec. 14; United States v. Hamilton, 3 Dallas, 17; Ex parte Bollman, 4 Cranch, 75; Ex parte Kearney, 7 Wheaton, 38; Ex parte Watkins, 7 Peters, 568. The principles and usages of law here mean those general principles and usages which are to be found, not in the legislative acts of any particular state, but in that generally recognized and long-established law, which forms the substratum of the laws of every state. Marshall, Ch. J., in United States v. Burr. The Judiciary Act of 1789, sec. 17, gave to the courts of the United States power to punish, by fine or imprisonment, at the discretion of the courts, all contempts of authority, in any cause or hearing, before the same. But the act of Congress of March 2, 1831, c. 99, limited and defined this power, by declaring that the power to issue attachments and inflict summary punishments, for contempt of court, shall not be construed to extend to any cases except the misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice; and the misbehavior of any of the officers of the said courts in their official transactions; and the disobedience or resistance, by any officer of the said courts, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or command of the said courts. The provisions of this act of Congress have been adopted in Tennessee by statute, in 1831, and in Ohio by statute, in 1834, with even some impediment thrown in the way of the prompt execution of the power; for the statute in the latter state declares that the charge is to be stated in writing, and the accused shall be heard in his defence by himself or counsel. The power of the English courts is more extensive. Thus, where several persons were, to be tried successively for the same treasonable act, the Court of Oyer and Terminer prohibited publication of any of the proceedings, until the whole of the trials had been brought to a conclusion; and it was held that a publication, disregarding this order, was a contempt punishable by fine and imprisonment, and that a party disregarding a summons to appear and answer for the contempt, might be fined in his absence. The King v. Clement, 4 B. & Ald. 218; 11 Price, 68,
of the Supreme Court, as well as the judges of the district courts, may, by habeas corpus, relieve the citizens from all manner of unjust imprisonment occurring under or by color of the
S. C. [See In re Cheltenham & Swansea Railway Carriage & Wagon Co., L. R. 8 Eq. 580.] The fair and impartial administration of justice in such cases would seem to require the existence and exercise of such a power. The act of Congress, however, reaches and prohibits all interference by attachment and summary punishment for contempts committed out of the presence of the court, by libels upon the court and the parties, and pending causes; and it is a very considerable, if not injudicious, abridgment of the immemorially exercised discretion of the courts in respect to contempts. But in the "System of Penal Law, prepared for the State of Louisiana," in 1824, by Edward Livingston, Esq., the courts were stripped of almost all power to preserve themselves from insult. The code provided for contempts in the presence of the court, by word, clamor, noise, or disobedience to legal orders, or violence, or threats. It provided, also, for contempts by using verbally, in court, or in any pleading or writing, addressed to the judges, in any cause pending, any indecorous, contemptuous, or insulting expression, to or of the judges, with intent to insult. But how did it provide? Contempts were to be tried on indictment (which may be at another session), and the jury were to pass upon the intent, and whether the words were indecorous, contemptuous, or insulting. There is no provision at all for insulting gestures or looks. Code, tit. 5, c. 11. The New York Revised Statutes, ii. 278, have dealt with the subject of contempts more temperately and judiciously, and with a wiser regard for the honor and dignity of the courts, so essential to the orderly, pure, independent, and impartial administration of justice. They provide that every court of record may punish summarily disorderly, contemptuous, or insolent behavior, committed in the immediate presence of the court, and tending to interrupt its proceedings and impair the respect due to its authority; and for breaches of the peace, noises, and disturbances, tending directly to interrupt its proceedings; and for wilful disobedience or resistance to lawful orders; and for the publication of false or grossly inaccurate reports of its proceedings. The commissioners appointed to revise the civil code of Pennsylvania, by their report, in January, 1835, followed the substance of the Pennsylvania act of 1809, on the subject of contempts, and confined the power of imprisonment to contempts committed in open court. No publication out of court, respecting the conduct of the court, or any of its officers, jurors, witnesses, or parties in any cause pending in court, exposes the party to summary punishment, and the only remedy for the persons aggrieved is by indictment or action at law. The act of Pennsylvania of 16th June, 1836, enacted the same provision. In the case Ex parte Poulson, which arose upon a motion in the Circuit Court of the United States for the Eastern District of Pennsylvania, in 1835, in the cause of Drew v. Swift, for a rule on Poulson, the editor of a daily paper, to show cause why an attachment should not issue against him for a contempt, in publishing a very libellous article upon the plaintiff pending the trial, Judge Baldwin felt himself bound to deny the motion, in consequence of the act of Congress of 1831. That act had withdrawn from the courts of the United States the common-law power to protect their suitors, officers, witnesses, and themselves, against the libels of the press, however atrocious, and though published and circulated pending the very trial of a cause. The case before him was one which showed, in a very strong light, the unreasonableness of the law, in leaving the suitor unprotected at the moment when he stands most in need of it, and when the mischief to him might be great and remediless. The want of such protection, and the undue distrust which the denial of the
authority of the United States, or for acts done, or omitted to be done, in pursuance of a law of the United States, or of a judicial authority of any court or judge thereof. The justices of the Supreme Court, and the judges of district courts, may grant writs of habeas corpus, when subjects of any foreign government, and domiciled therein, are in custody, under the authority or process of the United States, or of any state, for acts done under the order or sanction of any foreign state, the validity of which depends upon the law of nations, or under color thereof; and to hear the case, and discharge the prisoner, if entitled thereto by reason of such alleged authority set up, and the law of nations applicable thereto; and all proceedings had in the mean time, under any state authority, are declared void. (a)1 (x)
common-law power over contempts implies, tend to impair, in the estimation of the public, the value of the administration of justice.
The power of the courts to punish summarily for contempts has been lately much restrained in England; for in the case of the King v. Faulkner (2 Mont. & Ayr. Cas. in Bank. 311), it was held, in the Court of Exchequer, that a single commissioner of the Court of Bankruptcy, sitting alone, had no power to punish any contempt, however gross or personal.
(a) Acts of Congress of September 24, 1789, sec. 14, and March 2, 1833, [c. 57,] sec. 7, and August 29, 1842, c. 257. This last statute was passed in consequence of the case of McLeod, who was indicted for murder, in crossing the river Niagara, in the night, with an armed force, and seizing and destroying the steamboat Caroline, attached to the American shore, and in which affray an American citizen was killed. He pleaded authority from the Canadian powers, which authority was admitted, or assumed, by the British government; but the plea was overruled by the judicial authorities of New York, and McLeod brought to trial. See 1 Hill, 377, and 25 Wendell, 483. [See also La Manche, 2 Sprague, 207, 221; Buron v. Denman, 2 Exch. 167.]
1 Habeas Corpus. — The privilege of the writ was still further extended by the act of Feb. 5, 1867, c. 28, 14 U. S. St. at L. 385, by which the several courts of the United States, and the several justices and judges of such courts, within their respective jurisdictions, may grant writs
(x) It is discretionary with the U. S. Circuit Court whether a prisoner held under State process in alleged restraint of his liberty under the U. S. Constitution, or for a crime within the exclusive jurisdiction of the Federal courts, shall be discharged upon habeas corpus in advance of
of habeas corpus in all cases where any person may be restrained of his liberty in violation of the Constitution, or of any treaty or law of the United States. [See Seavy v. Seymour, 3 Cliff. 439; Elec. Coll. of S. C., 1 Hugh. 571; Ex parte Bridges, 2 Woods, 428; In re Stupp, 12
his trial in the State court; and while the court is not bound to award the writ as soon as the application is made, its discretion yields to any special circumstances requiring immediate action. In the absence of such urgent circumstances, the judgment of the highest State court in
4. Jurisdiction of the Circuit Courts. — The limits and jurisdiction of the circuit courts of the United States have been subject to
Blatchf. 501.] Under this act, it was held that an appeal lay from the judgment of a circuit court on such a writ when exercising original as well as appellate jurisdiction. Ex parte McCardle, 6 Wall. 318. But the act of March 27, 1868, repeals so much of the former one as authorizes appeals from the judgments of the Circuit Court to the Supreme Court, or the exercise of any such jurisdiction by the Supreme Court on appeals. See Ex parte McCardle, 7 Wall. 506. It has, however, been determined that the Supreme Court still has such appellate jurisdiction as it had before the act of 1867, which may be exercised by the writ of habeas corpus, aided by the writ of certiorari. Ex parte Yerger, 8 Wall. 85. See In re Martin, 5 Blatchf. 303; post, 326, n. 1.
In cases arising under the Judiciary Act, it has been often laid down that the Supreme Court could issue a habeas corpus ad subjiciendum only in the exercise of its appellate jurisdiction. Ex parte Barry, 2 How. 65; In re Kaine, 14 How. 103,
116, 119, 130. [Ex parte Hung Hang, 2 Supr. Ct. Rep. 863, 108 U. S. 552; Ex parte Siebold, 100 U. S. 371; Ex parte Clarke, ib. 399.] For Congress cannot enlarge the original jurisdiction of the court; and it has even been held on this ground that the court could not by means of this writ review an order of commitment made by a district judge sitting at chambers. In re Metzger, 5 How. 176; In re Callicot, 8 Blatchf. 89, explaining Ex parte Yerger. In Kaine's Case, above cited, a commissioner had ordered the prisoner to be committed, and a writ of habeas corpus, issued from the Circuit Court, had been dismissed after a hearing, and the further question was raised whether a writ issuing from the Supreme Court to review the decision of the Circuit Court was issued "for the purpose of an inquiry into the cause of commitment" within the fourteenth section of the Judiciary Act; and the majority of the court seem to have thought that it was. See Ex parte Wells, 18 How. 307.
which the question can be determined, should be first obtained, and its decision, if adverse, may be reviewed by the U. S. Supreme Court in respect of any Federal right distinctly asserted by the accused and denied by such judgment. Ex parte Royall, 117 U. S. 241; 112 id. 181; Ex parte Fonda, 117 id. 516; In re Loney, 134 U. S. 372; Re Duncan, 139 U. S. 449, 454; Be Frederich, 149 U. S. 70, 75; New York v. Eno, 155 U. S. 89; Pepke v. Cronin, id. 100; Andrews v. Swartz, 156 U. S. 272; Bergemann v. Backer, 157 U. S. 655; In re Welch, 57 Fed. Rep. 576. See 29 Am. L. Rev. 143; 20 id. 582; 24 id. 674; 25 id. 149, 481, 663, 671, 677.
The Act of Congress of Mar. 3, 1885 (23 St. L. 437), amended U. S. Rev. Stats. § 764, and allows appeals from the
circuit court to the Supreme Court in habeas corpus cases. The latter court can on such appeal review both law and fact. Johnson v. Sayre, 158 U. S. 109; see In re Lennon, 150 U. S. 393, 397. Appeals are now limited to six months from the date of the judgment or order. St. of Mar. 3, 1893 (27 St. L. 751), amending R. S. § 766. Under the amendatory act of 1885, there is now no absolute right to the writ upon original application therefor to the Supreme Court. Wales v. Whitney, 114 U. S. 564; Ex parte Mirzan, 119 U. S. 584; Ex parte Terry, 128 U. S. 289; see Ex parte Royall, supra; Carper v. Fitzgerald, 121 U. S. 87, 88; Palliser v. United States, 136 U. S. 257; Be Sun Hung, 11 Sawyer, 173. Judgments of the circuit courts of appeals, in habeas corpus cases, may be re-
frequent changes, and their number has been steadily increasing with the increase of states and districts, ever since the first organization of the national courts under the act of Congress of the 24th of September, 1789. They are established in each district (with a few exceptions) of the nine great circuits into which the United States are now (b) divided. The first circuit is composed of the districts of Maine, New Hampshire, Massachusetts, and Rhode Island; the second circuit, of the districts of Connecticut, Vermont, and the northern and southern districts of New York; the third circuit, of the district of New Jersey, and the eastern and western districts of Pennsylvania; the fourth circuit, of the districts of Maryland, Delaware, and Virginia; the fifth circuit, of the districts of Alabama and Louisiana; the sixth circuit, of the districts of North Carolina, South Carolina, and Georgia; the seventh circuit, of the districts of Ohio, Indiana, Illinois, and Michigan; the eighth circuit, of the districts of Kentucky, east, middle, and west Tennessee, and the district of Missouri; and the ninth circuit, of the districts of Mississippi and Arkansas. In each district of these circuits, with the excep-
(b) 1840.
viewed in the Supreme Court by certiorari. Lau Ow Bew v. United States, 144 U. S. 47; see Kurtz v. Moffitt, 115 U. S. 487, 497. In extradition the writ of habeas corpus cannot perform the office of a writ of error. Re Savin, 131 U. S. 267; In re Luis Oteiza y Cortes, 136 U. S. 330; Willis v. Bayles, 105 Ind. 363; State v. Neel, 48 Ark. 283; In re Bion, 59 Conn. 372.
The writ cannot, without express statutory authority, be issued by a circuit court of appeals to be served, and to effect a person's release, outside of the circuit. In re Boles, 48 Fed. Rep. 75. It is properly removed by appeal to that court from the circuit court. King v. M'Lean Asylum, 64 id. 331.
The writ is used very cautiously in the Federal courts to obstruct the ordinary administration of State criminal laws. In re Wood, 140 U. S. 278, 370. Federal and State courts have concurrent jurisdiction in matters of extradition.
Roberts v. Reilly, 116 U. S. 80; In re Doo Woon, 18 Fed. Rep. 898; Ex parte Brown, 28 id. 653. The fact that a State statute conflicts with the State constitution does not enable a Federal court to issue the writ of habeas corpus if it does not conflict with the Federal constitution and the prisoner is not held in custody under it. Andrews v. Swartz, 156 U. S. 272. The circuit courts have jurisdiction of this writ on the ground of diverse citizenship. King v. M'Lean Asylum, 64 Fed. Rep. 331. The remission to the demanding State for its decision of a constitutional question as to its laws does not warrant a release by habeas corpus out of a Federal court from the custody of the asylum State. Pearce v. Texas, 155 U. S. 311; In re White, 55 Fed. Rep. 54; see Lambert v. Barrett, 157 U. S. 697. In habeas corpus proceedings, the prisoner is not presumed innocent. State v. Jones, 113 N. C. 669; see S. C. 22 L. R. A. 678, and note.
tion of some of the districts in Alabama, Louisiana, Mississippi, and Arkansas, two circuit courts are annually held by one of the judges of the Supreme Court and the district judge of the district; but the Supreme Court may, in cases where special circumstances shall in their judgment render the same necessary, assign two of the judges of the Supreme Court to attend a circuit court; (x) and when the district judge shall be absent, or shall have been counsel, or be interested in the cause, the Circuit Court may consist only of a judge of the
Supreme Court. (c)2 {302} These circuit courts, thus organized, are vested with
original cognizance, concurrent with the courts of the several states,1 of all suits of a civil nature, at common law, or
(c) Acts of Congress of April 29, 1802, c. 31; of March 3, 1837, c. 34; of February 22, 1838, c. 12; and of August 16, 1842, c. 180.
2 Limits of the Circuits. — The first circuit is composed of the districts stated in the text; also the second; to the third add Delaware; the fourth is composed of the districts of Maryland, West Virginia, Virginia, North Carolina, and South Carolina; to the fifth add Georgia, Florida, Mississippi, and Texas; the sixth is composed of Ohio, Michigan, Kentucky, and Tennessee; the seventh, of Indiana, Illinois, and Wisconsin; the eighth, of Minnesota, Iowa, Missouri, Kansas, Arkansas, and Nebraska; [and Colorado, 19 St. at L. 61]; the ninth, of California, Oregon, and Nevada. 12 Wall. iv.; act of July 23, 1866, and of March 2, 1867.
The act of April 10, 1869, c. 22, 16 U. S. St. at L. 44, appoints resident circuit judges for each of the nine circuits, with the same power and jurisdiction therein as the justice of the Supreme Court allotted to the circuit, and designates the judges who may hold the circuit courts. This relieves the judges of
the Supreme Court of part of their work. Vide post, 305, n. 1; Appleton v. Smith, 1 Dillon, 202; United States v. Gordon, 5 Blatchf. 18; 16 U. S. St. at L. 179, c. 186. When the judge is interested, &c., he may either certify the case to the most convenient circuit court in the next adjacent state, under the act of Feb. 28, 1839, Richardson v. Boston, 1 Curt. 250; or may request the judge of another circuit to hold the court in his place; act of March 3, 1863, c. 93, 12 U. S. St. at L. 768; the former act not being repealed by the latter. Supervisors v. Rogers, 7 Wall. 175.
1 Original Jurisdiction of the Circuit Courts. — Under the act of Aug. 6, 1861, the circuit courts have jurisdiction of proceedings instituted in them for the confiscation of land. But in a case where the proceedings had been according to the course of admiralty, an appeal was allowed, only to direct a new trial with a jury, &c., as in cases of seizure upon land.
(x) The judges of the Supreme Court are members of the circuit courts, though not formally commissioned as such, and are entitled to protection from assault or
personal violence when discharging their official duties. In re Neagle, 135 U. S. 1, 40, 67, 75.
in equity, where the matter in dispute exceeds five hundred dollars, exclusive of costs, and the United States are plaintiffs, or an
Union Ins. Co.v. United States, 6 Wall. 759; Armstrong's Foundry, ib. 766; St. Louis Street Foundry, ib. 770. See United States v. Hart, ib. 770, 772; United States v. Athens Armory, U. S. Dist. C. 35 Ga. 344; Miller v. United States, 11 Wall. 268, 304.
The right of aliens to sue the United States or their officers for acts done under certain statutes passed during the rebellion, is limited by the act of July 27, 1868, 15 U. S. St. at L. 243, c. 276, § 2.
The act of March 2, 1833, as to cases under the revenue laws, does not now apply to cases under the internal revenue acts. Act of July 13, 1866, § 67; Ins. Co. v. Ritchie, 5 Wall. 541; Hornthall v. Collector, 9 Wall. 560; Assessor v. Osbornes, ib. 567.
The circuit courts have jurisdiction, concurrently with the district courts, of bills in chancery filed by direction of the commissioner of internal revenue to enforce the lien of the United States for tax upon any real estate, c. Act of July 20, 1868, c. 186, § 106, 15 U. S. St. at L. 167. Under the Civil Rights Bill of April 9, 1866, circuit and district courts have concurrent jurisdiction of all causes, civil or criminal, affecting persons who are denied or cannot enforce the rights secured to them by that act in the state courts. Post, 304, n. 1; Blyew v. United States, 13 Wall. 581. There is a like concurrent jurisdiction of all causes, civil and criminal, arising under the act of May 31, 1870, c. 114, § 8, 16 U. S. St. at L. 142, except as therein otherwise provided. Also of proceedings under the Ku-Klux Act against any person who, under color of any state law, &c., subjects any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States. Act of April 20, 1871, c. 22, § 1, 17 U. S.
St. at L. 13. Section 6, of the same act, gives an action in the Circuit Court to persons injured in the ways mentioned in the act, against persons who have knowledge that the wrongful act is about to be committed, and power to aid in preventing it, but neglect or refuse to do so.
The circuit courts have a general superintendence and jurisdiction of all cases and questions arising under the bankrupt laws, and concurrent jurisdiction of all suits at law or in equity between the assignee in bankruptcy and any person claiming an adverse interest, touching any property or rights of property of the bankrupt transferable to or vested in such assignee. Act of March 2, 1867, § 2.
Appellate Jurisdiction of the Circuit Courts. — Appeals in equity cases, and writs of error in cases at law, when the debt or damages claimed exceed $500, as also appeals from the rejection or allowance of claims, are given by the Bankrupt Act of March 2, 1867, § 8. See § 24.
An appeal is given by the act of Feb. 5, 1867, from the decision of inferior judges, justices, or courts, in habeas corpus cases under that act.
The appeal from the district court in prize causes is now direct to the Supreme Court, if the sum in controversy exceeds $2,000, or if the district judge certifies that a general question of law is involved. Act of June 30, 1864, §13. See The Alicia, 7 Wall. 371; [The City of Panama, 101 U. S. 453, 458.]
[By the act of March 3, 1875 (18 St. at L. 470), the jurisdiction of the circuit courts was extended to all suits of a civil nature at law or in equity, where the amount in dispute exceeds, exclusive of costs, five hundred dollars, "and arising under the Constitution or laws of the United States, or treaties made or which
alien is a party, and the suit is between a citizen of the state where the suit is brought, and a citizen of another state. (a) (x)
(a) The damages laid in the declaration, if they exceed $500, give the jurisdiction as to the matter in dispute. Muns v. Dupont, 2 Wash. 463. It is the amount of damages claimed in the declaration that determines the jurisdiction in the federal courts. Gordon v. Longest, 16 Peters, 97. The limitation to $500 and upwards was abolished by the act of March 3, 1815, in cases where the United States are plaintiffs. The suits between citizens, in civil causes, where the demand is to any small amount, belong to the local state courts, and are generally cognizable before single magistrates, and with juries reduced in number, or without juries, as the case may be. A late English statute (8 & 9 Vict. c. 127) instituted a court of that kind, of an efficient organization and summary jurisdiction. It consists of a single judge, who is to be a barrister, a pleader, or an attorney of ten years' standing; and it has jurisdiction to try summarily all suits for debts under £20. The judge has power to commit, in all cases of fraud or misconduct, to prison for forty days, and is the judge of all matters of law and fact, and there is to be no appeal from his decisions; but certiorari will lie to remove all suits above £10.
shall be made under their authority, ... or in which there shall be a controversy between citizens of different states, or a controversy between citizens of the same state claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens or subjects;" "and shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except as otherwise provided by law, and concurrent jurisdiction with the district courts of the crimes and offences cognizable therein." For cases construing the clause, "arising under the Constitution," &c., see Celluloid Mfg. Co. v. Goodyear, &c. Co., 13 Blatchf. 375; Miller v. Mayor, &c. of New York, ib. 469. The construction of the citizenship clause is the same as that of the simi-
lar language in the section of the same statute providing for the removal of cases from the state to the United States courts. Pacific R. R. v. Ketchum, 101 U. S. 289. (See infra, 303, n.)
By statute of March 3, 1879 (20 St. at L. 354), jurisdiction is given the circuit courts to review by writ of error decisions of district courts in criminal cases where the sentence involves imprisonment or a fine of over three hundred dollars.
Prior to the act of July 12, 1882, the circuit courts had original jurisdiction of all suits by and against national banks. County of Wilson v. Nat. Bank, 103 U. S. 770. But by statute July 12, 1882 (22 St. at L. 162), the jurisdiction is given, with certain exceptions, to the state courts. — B.]
(x) The presumption is against the jurisdiction of the circuit court when it does not affirmatively appear, in some part of the record, to exist under the Federal constitution and statutes. In re Barry, 42 Fed. Rep. 113; United States v. Southern Pacific R. Co., 49 id. 297; United States v. Central Pacific R. Co., id. 304; St. Louis, I. M. & S. Ry. Co. v. Newcom,
12 C. C. A. 503; Ward v. George F. Blake Manuf. Co., id. 295. The same rule applies in all cases coming before the Supreme Court upon writ of error or appeal. Parker v. Ormsby, 141 U. S. 81, 83; Stuart v. Easton, 156 U. S. 46. The jurisdiction, under the Act of Aug. 13, 1888, whether original, or acquired by removal, must appear by the plaintiff's
They have likewise exclusive cognizance, except in certain cases which will be hereafter mentioned, of all crimes and offences cog-
statement of his claim. Tennessee v. Union & Planters' Bank, 152 U. S. 454. But diverse citizenship may be shown by amendment. Bowden v. Burnham, 59 Fed. Rep. 752. And averments defective as to the citizenship of corporations may be waived by answer and taking evidence. Kennedy v. Solar Ref. Co., 69 id. 715. The circuit courts are not necessarily bound by each other's decisions, but each should follow the decisions of the circuit court of appeals for its own circuit. Northern Pacific R. Co. v. Sanders, 47 Fed. Rep. 604; Edison Electric Light Co. v. Bloomingdale, 65 id. 212.
The Act of 1887, as corrected by the Act of Aug. 13, 1888, (25 St. at L. 433), § 1, provides: "Nor shall any circuit or district court have cognizance of any suit, except upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made." This provision does not apply to actions of tort: Van Bokkelen v. Cook, 5 Sawyer, 587; New Providence v. Halsey, 117 U. S. 336; Blacklock v. Small, 127 U. S. 96; Ambler v. Eppinger, 137 U. S. 480; or to suits removed from the State courts. Delaware County v. Diebold S. & L. Co., 133 U. S. 473. The requirement that the assignor must have been able to sue refers to his citizenship, and not to the jurisdictional amount. Bowden v. Burnham, 59 Fed. Rep. 752. The right to sue depends upon the position of the assignor and assignee when the suit is begun. Jones v. Shapera, 57 Fed. Rep. 457.
The assignee must plead and show his assignor's ability to sue in a Federal
court when the assignment was made. Parker v. Ormsby, 141 U. S. 81; Metcalf v. Watertown, 128 U. S. 586; Chase v. Sheldon R. M. Co., 56 Fed. Rep. 625; Bowden v. Burnham, 59 id. 752. In a suit upon negotiable paper, the note or bill of exchange must on its face be negotiable, and the citizenship of the original owners must be alleged. Raisin Fertilizer Co. v. Snell, 21 Fed. Rep. 353; Adams v. Republic County, 23 id. 211; Chase v. Sheldon R. M. Co., 56 id. 625; Stanton v. Shipley, 27 id. 498; Bull v. Kasson Bank, 123 U. S. 105; Superior Court v. Ripley, 138 U. S. 93. See Shoecraft v. Bloxham, 124 U. S. 730; Brock v. N. W. Fuel Co., 130 U. S. 341; Ambler v. Eppinger, 137 U. S. 480; New Orleans v. Benjamin, 153 U. S. 411; Holmes v. Goldsmith, 147 U. S. 150; Plant Inv. Co. v. Jacksonville Ry. Co., 152 U. S. 71; Mississippi Mills v. Cohn, 150 U. S. 202; Mexican Nat. R. Co. v. Davidson, 157 U. S. 201; Steel v. Rathbun, 42 Fed. Rep. 390; Wilson v. Knox County, 43 id. 481; Jewett v. Bradford S. B. & T. Co., 45 id. 801; Barling v. Bank of British North America, 50 id. 260; Wachusett Nat. Bank v. Sioux City Stove Works, 56 id. 321; Jones v. Shapera, 57 id. 457; Kerney Board v. McMaster, 68 id. 177. An administrator, as defendant, must have a diverse citizenship from that of the complainant, though his intestate may have had the requisite citizenship. Bangs v. Loveridge, 60 Fed. Rep. 963. As to who are "assignees" within the St. of 1888, see also Sere v. Pitot, 6 Cranch, 332; Childress v. Emory, 8 Wheat. 642; New Orleans v. Gaines, 138 U. S. 595; Davies v. Lathrop, 20 Blatch. 397, 404; Greaves v. Neal, 57 Fed. Rep. 816; Marine Ins. Co. v. St. Louis, &c. Ry. Co., 41 id. 643. As to the citizenship of national banks, see Petri v. Commercial Nat. Bank, 142 U. S. 644; Fisher v. Yoder, 53 Fed.
nizable under the authority of the United States, exceeding the degree of ordinary misdemeanors, and of them they have concur-
Rep. 565. It is not a valid objection that a bona fide transfer which would give the circuit court jurisdiction, was made for the purpose of securing such jurisdiction. D'Wolf v. Rabaud, 1 Peters, 498; Barney v. Baltimore, 6 Wall. 280; Manhattan Ins. Co. v. Broughton, 109 U. S. 121; Hoyt v. Wright, 4 Fed. Rep. 168. When an assignment is fictitious, or merely collusive, and the plaintiff merely a nominal party, the jurisdiction is determined by the citizenship of the real parties. Farmington v. Pillsbury, 114 U. S. 138, 143; Hartog v. Memory, 116 U. S. 588; Bernards Township v. Stebbins, 109 U. S. 341; see Banigan v. Worcester, 30 Fed. Rep. 392; Neal v. Foster, 13 Sawyer, 236; Richardson v. Mattison, 5 Biss. 31; Greenwalt v. Tucker, 10 Fed. Rep. 884; Marion v.. Ellis, id. 410; 9 id. 367. Where the interest is joint, each party must be competent to sue, or liable to be sued, apart from the others' citizenship. Peninsular Iron Co. v. Stone, 121 U. S. 631. If two plaintiffs are citizens of different States, and the defendant of a third State, the suit cannot be brought in either plaintiff's State. Smith v. Lyon, 133 U. S. 315. But the court may dismiss one joint party made a defendant because he refuses to join as a co-plaintiff. Hicklin v. Marco, 56 Fed. Rep. 549. The Supreme Court must determine the circuit court's jurisdiction, though the parties consent to a consideration of the merits. Morris v. Gilmer, 129 U. S. 315; Nashua & Lowell R. Co. v. Boston & Lowell R. Co., 136 U. S. 356, 374.
By the above Act of Aug. 13, 1888, suits in the circuit courts are to be brought in the district in which the defendant resides, except when the citizenship of the parties is the jurisdictional fact. See Reinstadler v. Reeves, 33 Fed. Rep. 308; Werner v. Murphy, 60 id. 769. Thus an equity suit for specific perform-
ance is to be brought in the district in which one of the parties resides. Municipal Ins. Co. v. Gardiner, 62 Fed. Rep. 954. But a defendant who is sued in another district, where he is found, may waive this defect by a voluntary appearance. St. Louis, &c. R. Co. v. McBride, 141 U. S. 127; Hardenberg v. Ray, 33 Fed. Rep. 812; 151 U. S. 112; Southern Express Co. v. Todd, 12 C. C. A. 351; Smith v. Atchison, &c. R. Co., 64 Fed. Rep. 1. This provision does not apply to a suit removed by the defendant from a State court. Baltimore & 0. R. Co. v. Meyers, 62 Fed. Rep. 367. It applies in general to suits for infringing patents. Union S. Co. v. Hall Signal Co., 65 Fed. Rep. 625; Kennedy v. Penn. I. & C. Co., 67 id. 339; see Smith v. Sargent M. Co., id. 801.
In a suit between corporations created by two different States, brought in a third State, the Federal court has jurisdiction if the defendant waives its privilege of being sued only in its own district. Central Trust Co. B. McGeorge, 151 U. S. 129. A foreign corporation which has an agent in another State, on whom service can be made, may be sued as an "inhabitant" of that State in a Federal court. Shainwald v. Davis, 69 Fed. Rep. 704; see Dinzy v. Illinois Cent. R. Co., 61 id. 49. Diverse citizenship is shown when the defendant is a Federal corporation alleged to be a citizen of another State than that of the plaintiffs residence. Union Pac. Ry. Co. v. Harris, 158 U. S. 326.
The defendant has the burden of proof as to such citizenship. Foster v. Cleveland, &c. Ry. Co., 56 Fed. Rep. 434. A circuit court has jurisdiction of an equity suit to quiet title, or to remove a cloud from title, where the land lies, though the defendants are inhabitants of other districts. Dick v. Foraker, 155 U. S. 404; United States v. Southern Pac. Ry. Co.,
rent jurisdiction with the district courts. (b) But no person can be arrested in one district for trial in another, and no civil suit
(b) See infra, 360-363.
63 Fed. Rep. 481. In determining jurisdiction by citizenship, the parties should be classed according to their real interests. Cilley v. Patten, 62 Fed. Rep. 498. A citizen of a Territory cannot sue a citizen of a State in the Federal courts. Sneed v. Sellers, 66 id. 371.
When the jurisdiction is based on citizenship alone, the suit may be brought in the district of either the plaintiffs or defendant's residence. 25 St. at L. 433; Winona Bank v. Avery, 34 Fed. Rep. 81; see Fales v. Chicago, &c., Ry. Co., 32 id. 673; Gavin v. Vance, 33 id. 84; Yuba County v. Pioneer G. M. Co., 32 id. 183; Bostwick v. American Finance Co., 43 id. 897; McCormick H. M. Co. v. Walthers, 134 U. S. 41. A suit by the United States can only be brought in the defendant's district. United States v. Southern Pacific R. Co., 49 Fed. Rep. 297; United States v. Central Pac. R. Co., id. 304. Citizenship is not properly or sufficiently averred by stating the party's "residence." Everhart v. Huntsville College, 120 U. S. 223; post, p. 344, note; Ward v. Blake Manuf. Co., 56 Fed. Rep. 437.
Under the act of 1888, suit does not lie against an alien temporarily in the district. Meyer v. Herrara, 41 Fed. Rep. 65. Jurisdiction once given by adverse citizenship to a Federal court is not affected by a subsequent change of parties. Mollan v. Torrance, 9 Wheat. 537; Phelps v. Oaks, 117 U. S. 236, 240; Hardenberg v. Ray, 151 U. S. 112; 13 Sawyer, 158; Wetherby v. Stinson, 62 Fed. Rep. 173. So a suit to set aside a decree as fraudulently obtained is not defeated by a change of citizenship after such decree. Foster v. Mansfield &c. R. Co., 36 Fed. Rep. 627. In general, the fact that the beneficiary and the grantor are citizens of the same State does not defeat Federal
jurisdiction when the trustee is a citizen of a different State. Dodge v. Tulleys, 144 U. S. 451; see Bowdoin College v. Merritt, 63 Fed. Rep. 213; Mass. & S. C. Co. v. Cane Creek, 155 U. S. 283. But when a State sues for a citizen's benefit, the beneficiary's citizenship is the plaintiffs citizenship. Maryland v. Baldwin, 112 U. S. 490. When a Federal Court has taken possession of property on the original bill, its jurisdiction in passing upon a cross-bill filed for complete relief in disposing of such property does not depend upon the parties' citizenship. Morgan's La. & T. R. & S. Co. v. Texas Central Ry. Co., 137 U. S. 171, 201; First National Bank v. Salem Capitol Flour Mills Co., 12 Sawyer, 485; 31 Fed. Rep. 580; Osborne v. Barge, 30 id. 805; see Vannerson v. Leverett, 31 id. 376.
Under the Act of 1888, the limitation of the amount to $2,000 does not apply to suits brought by the United States as plaintiff or petitioner. United States v. Shaw, 39 Fed. Rep. 433; United States v. Kentucky River Mills, 45 id. 273. So a receiver of a national bank may recover in the circuit court a debt due to the bank without regard to the amount. Yardley v. Dickson, 47 Fed. Rep. 835. The amount is exclusive of costs and interest. Smith v. Greenhow, 109 U. S. 669; Moore v. Edgefield, 32 Fed. Rep. 498; Bernheim v. Birnbaum, 30 id. 885; Hynes v. Briggs, 41 id. 468. Separate claims, though properly joined under a State statute, cannot be computed together to make up the jurisdictional amount. Holt v. Bergevin, 60 Fed. Rep. 1. But the demand of one plaintiff may be made up of distinct amounts each less than the $2,000, and these may have been acquired by assignment. Bernheim v. Birnbaum, 30 Fed. Rep. 885. Interest may
can be brought against an inhabitant of the United States out of his district; (c) and the act of Congress provides against the assumption of federal jurisdiction to be created by the assignment of promissory notes, or other choses in action, except foreign bills of exchange.2 This restriction applies to assignees by operation of law, (d) but it does not apply to notes payable to bearer: (e) nor to suits by Indorsee v. Indorser, for that creates a new contract; (f) nor to suits in equity by a judgment creditor; (g) nor to cases in which the United States are a party. (h) The circuit courts have also appellate jurisdiction from all final decrees and judgments in the district courts, where the matter in dispute, exclusive of costs, exceeds fifty dollars. If the remedy be on final decrees in the district courts, in cases of admiralty and maritime jurisdiction, and the matter in dispute exceeds three
(c) Process of foreign attachment cannot be issued by the circuit courts of the United States, where the defendant is domiciled abroad, or not found within the district. The circuit courts cannot issue process beyond the limits of their district, except subpœna for witnesses and executions in two special cases. Toland v. Sprague, 12 Peters, 300.
(d) Sere v. Pitot, 6 Cranch, 332.
(e) Bullard v. Bell, 1 Mason, 251; Bank of Kentucky v. Wister, 2 Peters, 318.
(f) Young v. Bryan, 6 Wheaton, 146.
(g) Bean v. Smith, 2 Mason, 252; Dexter v. Smith, ib. 303.
(h) Bank of United States v. Planters' Bank of Georgia, 9 Wheaton, 904.
2 Post, 349, n. 1.
be added to the damages to make up the amount necessary for jurisdiction. Brown v. Webster, 156 U. S. 328. A valid defence to part of the plaintiff's claim made in good faith, reducing it below $2,000, does not deprive the circuit court of its jurisdiction. Schunk v. Moline &c. Co., 147 U. S. 500; Peeler v. Lathrop, 48 Fed. Rep. 780; Hardin v. Cass County, 42 id. 652. In a bill brought by the plaintiff on behalf of himself and others, the plaintiffs individual claim need not always exceed the $2,000. See Handley v. Stutz, 137 U. S. 366; Hill v. Glasgow R. Co., 41 Fed. Rep. 610; Hynes v. Briggs, id. 468; Hartford Fire Ins. Co. v. Bonner Mercantile Co., 44 id. 151.
When a stockholder applies for a receiver of a corporation, the entire corporate
assets represent the value in controversy. Towle v. American Building Society, 60 Fed. Rep. 131.
By § 74 of the Tariff Act of Aug. 27, 1894 (28 St. at L. 570), the circuit courts may on petition in equity, prevent and restrain the combinations and trusts in restraint of trade in imported articles, prohibited by § 73. By the act of Feb. 10, 1891 (26 St. at L. 744), the circuit courts may subpœna witnesses and require production of books and papers before the Interstate Commerce Commission. By the Act of July 2, 1890 (26 St. at L. 209), the circuit courts were empowered to restrain contracts and combinations in restraint of trade or commerce between the States, or with foreign nations, declared illegal by that Act.
hundred dollars, it is by appeal; and if on final judgments in civil actions, and the matter in dispute exceeds fifty dollars, it is by writ of error. (i) And if any suit be commenced {303} in a state court against an alien, or by a citizen of the state in which the suit is brought against a citizen of another state, or against a citizen of the same state claiming lands under a grant from another state, and the matter in dispute exceeds five hundred dollars, exclusive of costs, the defendant, on giving security, may remove the cause to the next circuit court. (a)1 The circuit courts have also original cognizance in
(i) Acts of Congress of September 24, 1789, sec. 11, 21, 22; and March 3, 1803, [c. 40,] sec. 2.
(a) Act of Congress of September 24, 1789, sec. 12. In Smets v. Williams, 4 Paige, 364, it was declared, that the amount of the original claim of the plaintiff, and not the amount ultimately found due, determined the jurisdiction of the Court of Chancery of New York, where it was limited to a certain sum.
1 Removal of Suits from State to United States Courts. — This may take place to the Circuit Court if any suit or prosecution, civil or criminal, be commenced in a state court for any wrong done or act omitted during the rebellion under color of any authority from the President, or any act of Congress. Act of March 3, 1863, § 5, 12 U. S. St. at L. 756, 757; act of May 11, 1866, § 3, 14 U. S. St. at L. 46. These provisions are constitutional, The Mayor v. Cooper, 6 Wall. 247; McCormick v. Humphrey, 27 Ind. 144; except so far as they provide for removal of a judgment of a state court after the trial by jury for a retrial on the facts and the law, which contravenes the 7th amendment, The Justices v. Murray, 9 Wall. 274. See acts of Feb. 5, 1867, and Jan. 22, 1869, § 1; and generally Short v. Wilson, 1 Bush, 350; Eifort v. Bevins, ib. 460; Edwards v. Ward, 2 id. 606; Woodson v. Fleet, 2 Abb. U. S. 15; Murray v. Patrie, 5 Blatchf. 343.
So, if any suit or prosecution, civil or criminal, be commenced in a state court, against any person who is denied or cannot enforce there the rights secured to him by the Civil Rights Act, for any cause
whatever, or against any officer or other person for wrongs done under color of authority derived from said act, or the Freedmen's Bureau Acts, or for refusing to do any act as inconsistent with the Civil Bights Act, such defendant has the right to remove the cause to the proper district or circuit court. Act of April 9, 1866, c. 31, § 3, 14 U. S. St. at L. 27; McKee v. Rains, 10 Wall. 22; post, 304, n. 1. [Held constitutional in Strauder v. West Virginia, 100 U. S. 303. It was held in this case that a state law to the effect that no colored persons should be on a jury was a denial of equal rights. In Virginia v. Rives, ib. 313, it was held that the mere fact that the officer of the state whose duty it was to select jurors refused to select any colored persons, was not a ground for removal. As to the proper remedy in such case, see Ex parte Virginia, ib. 339. — B.]
So an alien defendant, or a citizen of another state sued by a citizen of the state in which suit is brought, if the matter in dispute exceeds $500, and the suit as to such defendant is to restrain or enjoin him, or can be finally determined without the presence of other defendants
equity and at law of all suits arising under the revenue laws of the United States, or under any law of the United States relative
in the cause, and if a citizen of the state in