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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 prętor 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 nostrę patiantur, judex quidam medius adesto ad quern a rege provocare, si aliquern lęserit, 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.

1Post, 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. Larivičre, 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. 1Post, 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.]

2Post, 314, and note.

1Review 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.]

1Habeas 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.

2Limits 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.

1Original 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.

2Post, 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.

1Removal 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 which suit is brought is also a defendant, may remove the cause as against himself into the next circuit court at any time before final hearing. Act of July 27, 1866, c. 288, 14 U. S. St. at L. 306; Bixby v. Couse, 8 Blatchf. 73; Allin v. Robinson, 1 Dillon, 119. Amended so that a controversy for more than f500 between a citizen of the state in which suit is brought and a citizen of another state, may be removed by the latter, whether plaintiff or defendant, if he will file in the state court an affidavit that from prejudice or local influence he will not be able to obtain justice there, and give security for appearance, &c. Act of March 2, 1867, c. 196, 14 U. S. St. at L. 558. This is discussed and held constitutional in Johnson v. Monell, 1 Woolw. 390; Railway Co. v. Whitton, 13 Wall. 270, 287. See, generally, Sneed v. Brownlow, 4 Coldw. 253; Washington, Al. & G. R. R. v. Alexandria & W. R. R., 19 Gratt. 592, 602; Sands v. Smith, 1 Dillon, 290; Case v. Douglas, ib. 299; Beecher v. Gillett, ib. 308; Akerly v. Vilas, 1 Abb. U. S. 284.

So, any suit or prosecution, civil or criminal, against an internal revenue officer or person acting under him, for acts done under color of his office, or against any person holding property by title derived from any such officer, concerning such property and affecting the validity of the internal revenue acts, may be removed to the Circuit Court at any time before trial. Act of July 13, 1866, c. 184, § 67, 14 U. S. St. at L. 171. See Commonwealth v. Casey, 12 Allen, 214; Benchley v. Gilbert, 8 Blatchf. 147. [This provision was elaborately considered and held constitutional in Tennessee v. Davis, 100 U. S. 257; Davis v. South Carolina, 107 id. 597. — B.]

So any suit at law or in equity against

any corporation other than a banking corporation, organized under a law of the United States, or against a member thereof, as such member, may be removed to the proper circuit or district court by a sworn petition stating that they have a defence under the Constitution, or any treaty, or law, of the United States. Act of July 27, 1868, c. 255, § 2, 15 U. S. St. at L. 227; Fisk v. Union Pacific R. R., 6 Blatchf. 362; 8 id. 243.

The only question for a state court to determine when an application is made to remove a cause to the Circuit Court is whether the applicant has brought himself within the act of Congress. If it decides that he has, the removal follows as of right, and further proceedings in the state court are void. Compare Rosenfield v. Adams Exp. Co., 21 La. Ann. 233; Williams v. Adkins, 6 Coldw. 615; Akerly v. Vilas, 24 Wisc. 165; 1 Abb. U. S. 284; Stevens v. Phœnix Ins. Co., 41 N. Y. 149; Fisk v. Union Pacific R. R., 8 Blatchf. 243; 6 id. 362; Hatch v. Chicago, R. I., & P. R. R., 6 id. 105.

As to removal of suits from state courts to the Supreme Court, see 300 and note.

As to removal of suits from one circuit court to another, &c., ante, 301, n. 2, end.

[St. March 3, 1875, § 2 (18 St. at L. 470), provided that in civil suits, at law or in equity, where the matter 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 shall be made, under their authority, or in which the United States shall be plaintiff or petitioner, 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

to copyrights and patent-rights growing out of inventions and discoveries, and to protect such rights by injunction. (b) The

(b) Acts of April 17, 1800, c. 25, sec. 3; of February 15, 1819, sec. 1, and of July 4, 1836, c. 357, sec. 17; act of March 2, 1833, entitled further to provide for the collection of duties on imports, [c. 57,] sec. 2.

state and foreign states, citizens, or subjects, either party may remove said suit into the circuit court of the United States for the proper district. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit," &c. As to the effect of this statute in repealing earlier statutes, see King v. Cornell, 106 U. S. 395; Venable v. Richards, 105 id. 636; Stone v. Sargent, 129 Mass. 503. The court disregards the pleadings, and arranges the parties on one side or the other, according to their real interest; and then, if no plaintiff and defendant are citizens of the same state, the case is one for removal. Removal Cases, 100 U. S. 457; Hyde v. Ruble, 104 id. 407; Broadway Nat. Bank v. Adams, 130 Mass. 431; Danvers Savings Bank v. Thompson, 133 id. 182. The requisite citizenship must exist both when the suit is begun and when the petition is filed. Gibson v. Bruce, 2 Supr. Ct. Rep. 873; 108 U. S. 561. A corporation is to be treated as a citizen of the state creating it. Memphis, &c. R. B. Co. v. Alabama, 107 U. S. 581; Steamship Co. v. Tugman, 106 id. 118. For cases construing the clause "arising under the Constitution," &c., see Albright v. Teas, 106 U. S. 613; Dubuclet v. Louisiana, 103 id. 550; Railroad Co. v. Mississippi, 102 id. 135. Under the second clause a removal of the entire suit may be had when there is a separate controversy between two or more of the parties, which could be determined without deciding the remainder of the issues. Barney v.

Latham, 103 U. S. 205; Corbin v. Van Brunt, 105 id. 576; N. Y. Mut. Ins. Co. v. Allen, 134 Mass. 389; Danvers Savings Bank v. Thompson, 130 id. 490. As to who are the real parties in interest, see Bacon v. Rives, 106 U. S. 99; Amory v. Amory, 95 id. 186; as to when the state jurisdiction is ousted, Kern v. Hnidekoper, 103 U. S. 485; Stone v. Sargent, 129 Mass. 503.

As to removal of criminal proceedings on the ground of a denial of civil rights, see Bush v. Kentucky, 107 U. S. 110; Neal v. Delaware, 103 id. 370; Strauder v. West Virginia, 100 id. 303; Virginia v. Rives, ib. 313. Comp. State v. Smalls, 11 S. C. 262.

As to the time within which a petition to remove must be filed under acts of 1866 and 1867, see Jifkins v. Sweetzer, 102 U. S. 177; under act of 1875, Hewitt v. Phelps, 105 id. 393.

When a removal is claimed on the ground of local prejudice, it must appear that all the parties on one side are citizens of different states from any on the other. Myers v. Swann, 107 U. S. 546. An alien has no right to a removal either under the separate controversy or under the local prejudice clause of the act of 1875. King v. Cornell, 106 U. S. 395. A collusive assignment to give jurisdiction is void, and gives no jurisdiction. Hayden v. Manning, 106 U. S. 586.

In Gaines v. Fuentes, 92 U. S. 10, it was held (two judges dissenting) that the right of removal under the act of March 2, 1867, was not confined to cases where the Circuit Court might have taken original jurisdiction as it had been prior to that act. — B.]

jurisdiction in cases of copyrights applies, without regard to the character of the parties, or the amount in controversy; and with respect to the jurisdiction of the circuit courts, it may be laid down as the settled doctrine, that they are courts of limited, though not of inferior, jurisdiction; and it is necessary, therefore, that there should appear upon the record of a circuit court, the facts or circumstances which gave jurisdiction, either expressly or by necessary legal intendment. (c)

5. Jurisdiction of the District Courts. — The district as well as the circuit courts are derived from the power granted to Congress by the Constitution, of constituting tribunals inferior to the Supreme Court. (d) The United States are at present divided into thirty-five districts, which generally consist of an entire state; but in New York, Pennsylvania, Virginia, North Carolina, South Carolina, Tennessee, Louisiana, Mississippi, and Alabama, there are more districts than one. A court is established in each district, with some exceptions, consisting of one judge, who holds annually, in most of them, four stated terms, and in some of them only three, or two, or one; and he holds, also, special courts in his discretion. There are at present only twenty-nine district judges; and it seems to be practically settled, since the act of 1801, that Congress may, in their discretion, abolish the inferior courts, and create new ones under a different organization.

The district courts have, exclusive of the state courts, {304} cognizance of all lesser crimes and offences, cognizable under the authority of the United States, and committed within their respective districts, or upon the high seas, and which are punishable by fine not exceeding one hundred dollars, by imprisonment not exceeding six months, or when corporal punishment, not exceeding thirty stripes, is to be inflicted. (a) They

(c) Turner v. The Bank of North America, 4 Dallas, 11; M'Cormick v. Sullivant, 10 Wheaton, 192. See also post, 314. The circuit courts are not authorized to issue writs of mandamus, except when necessary for the exercise of their acknowledged jurisdiction. M'Intire v. Wood, 7 Cranch, 504. It will therefore lie to a district court refusing to proceed to judgment in a case subject to the appellate jurisdiction of the Circuit Court. Smith v. Jackson, 1 Paine, 453. It is a general principle of the common law, that where a limited authority is given, if the party to whom it is given extends his jurisdiction to objects not within it, his warrant will be no protection to the officers who act under it. Morrell v. Martin, 3 Mann. & Gr. 581.

(d) Art. 1, sec. 8.

(a) By the act of Congress of August 23, 1842, c. 188, and of August 8, 1846, c. 98,

have also exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under imposts, navigation, or trade laws of the United States, where the seizures are made upon the high seas, or on waters within their districts navigable from the sea with vessels of ten or more tons burden; (b) and also of all other seizures made under the laws of the United States; and also of all suits for penalties and forfeitures incurred under those laws. (x) They have also cognizance, concurrent with the circuit courts and the state courts, of causes where an alien sues for a tort committed in violation of the law of nations, or of a treaty of the United States; and of all suits at common law, in which the United States are plaintiffs, and the matter in dispute amounts, exclusive of costs, to two

the district courts were declared to have concurrent jurisdiction with the circuit courts, of all crimes and offences against the United States, the punishment of which is not capital.

(b) The exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction is understood to be exclusive as between the district and circuit courts, and that the jurisdiction may be concurrent with courts of common law, in cases in which a common-law remedy may be adequate and proper, inasmuch as the Judiciary Act of 1789, sec. 9, when on this very point, "saves to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it."

(x) The jurisdiction of the district courts over penalties will not be treated as transferred to the circuit courts by uncertain language in a statute, as in the contract labor law (23 St. at L. 332, § 3) enabling the penalty to be sued for in the circuit courts. Lees v. United States, 150 U. S. 476; see United States v. Mooney, 11 Fed. Rep. 476. As such penalties are of a quasi-criminal nature, this jurisdiction is not limited by the act of 1888, giving the circuit courts original cognizance "of all suits of a civil nature," exceeding $2,000 in amount. United States v. Whitcomb M. B. Co., 45 Fed. Rep. 89; post, p. 331, n. Diverse citizenship is not a ground of jurisdiction in the district courts. In re Burrus, 136 U. S. 586. A suit for the full amount of a penal bond exceeding $2,000, when at the trial it appears that less than $2,000 is claimed, must be dismissed. Cabot v. McMaster, 61 Fed. Rep. 129; see State v. Hill, 60

id. 1005. Under the Rev. Stats. § 563, the district court has jurisdiction of a setoff by the United States when sued by a district attorney to recover fees. Tuthill v. United States, 38 Fed. Rep. 538. The district courts, as well as the Supreme and circuit courts, have, under Rev. Stats. § 716, power to issue the writ of ne exeat. Lewis v. Shainwald, 48 Fed. Rep. 492. As to their jurisdiction in suits relating to national banks, see Stephens v. Bernays, 41 Fed. Rep. 401; 44 id. 642; 119 Mo. 143; Farmers' Nat. Bank v. McElhinney, 42 id. 801. In general a national bank can sue in the Federal courts to recover upon a note only where diverse citizenship is shown. Danahy v. Denison Nat. Bank, 64 Fed. Rep. 148.

By § 4 of the judiciary act of Mar. 3, 1891, the appellate jurisdiction of the old circuit courts over the district courts was abolished.

hundred dollars. They have jurisdiction, likewise, exclusive of the courts of the several states, of all suits against consuls or vice-consuls, except for offences above the magnitude which has been mentioned. (c) They have also cognizance of complaints by whomsoever instituted, in cases of captures made within the waters of the United States, or within a marine league of its coast; (d) and to repeal patents unduly obtained. (e)1

(c) Act of Congress of September 24, 1789, c. 20, sec. 9; [ante, 45, n. 1.] By act of Congress of Aug 8, 1846, c. 105, the district and circuit courts and the commissioners to take affidavits, &c., have jurisdiction, as justices of the peace, against offenders against the United States, and, on the application of foreign consuls and commercial agents, to enforce their awards and decrees by arrest and imprisonment, &c.

(d) Act of April 20, 1818, [c. 88,] sec. 7.

(e) Act of February 21, 1793, c. 11, sec. 10. By the act of Congress of August 23, 1842, c. 188, the district courts, as courts of admiralty, and the circuit courts, as courts of equity, are to be deemed always open for the purpose of filing pleadings and issuing process, and for interlocutory motions and orders.

1Jurisdiction of District Courts. — See, as to their admiralty jurisdiction, post, 369, n. 1, where the interpretation of the saving clause in note (b) by the later decisions is also given.

The district courts have cognizance, concurrent with the circuit and state courts, of all suits at common law, when the United States or any officer thereof, under the authority of any act of Congress, shall sue, although the matter in dispute is less than $100. Act of March 3, 1815, § 4.

So they have jurisdiction, concurrent as above, of suits and proceedings against national banks. Act of June 3, 1864, §57.

So they have original jurisdiction in all matters and proceedings in bankruptcy. Act of March 2, 1867, § 1. [See Claflin v. Houseman, 93 U. S. 130.]

In the way of criminal jurisdiction, it has been enacted that the District Court may, on the report of the district attorney, try at special session in a summary way, unless, at the time for pleading, the accused shall demand a jury, any master, officer, or mariner of any vessel belonging,

in whole or in part, to citizens of the United States, complained of for the commission of any offence, not capital or otherwise infamous, against any United States law for the protection of persons or property engaged in commerce or navigation. Act of June 11, 1864, c. 121, § 2, 13 U. S. St. at L. 124; post, 363, n. 1.

The district courts have also, exclusively of the state courts, cognizance of all crimes and offences against the Civil Rights Bill, and also, concurrently with the circuit courts, of all causes, civil and criminal, affecting persons who are denied or cannot enforce the rights secured to them by that act, in the state courts; and in all cases where the United States laws fail to furnish remedies and punish offences against law, the common law, as modified by the constitution and statutes of the state so far as not inconsistent with the Constitution and laws of the United States, is to govern in the United States courts. Act of April 9, 1866, 14 U. S. St. at L. 27, c. 31, § 3; ante, 302, n. 1, 303, n. 1.

They have, in like manner, exclusively of state courts, cognizance of all crimes

The judges of the district courts have, also, in cases where the party has not had a reasonable time to apply to the Circuit Court, as full power to grant writs of injunction to operate within their respective districts, as is exercised by the judges of the Supreme Court, and to continue until the {305} next circuit court. (a) They may also grant injunctions, in particular cases, under the act for the better organization of the treasury department. (b)

In addition to these general powers vested in the district courts, they have, in those cases where the districts are so situated as not to permit conveniently the presence of a judge of the Supreme Court, the powers of a circuit court superadded to their ordinary powers of a district court. (c)

To guard against the inconvenience of a difference of opinion between the circuit judge and the district judge, when holding together a circuit court, it is provided by law, that in all cases of appeal or error, from the district to the circuit court, judgment is to be rendered in conformity to the opinion of the judge of the Supreme Court presiding in such circuit court. And in all other cases of a disagreement of opinion between the circuit and district judges, the point may be certified into the Supreme Court for its decision;1 but in no case shall im-

(a) Act of February 13, 1807, [c. 13,] sec. 1.

(b) Act of Congress of May 15, 1820, [c. 107,] sec. 4 and 5.

(c) Act of February 19, 1831, [c. 28.]

and offences against the act of May 31, 1870, c. 114, 16 U. S. St. at L. 140, and the concurrent jurisdiction under the same act and under the Ku-Klux Act, which has already been mentioned, ante, 302, n. 1.

See, as to the summary trial of officers and mariners for offences not capital or otherwise infamous, act of June 11, 1864, c. 121, 13 U. S. St. at L. 124: post, 363, n. 1.

1Certificate of Division. — The associate justice of the Supreme Court, and the resident circuit judge, holding court under the act of April 10, 1869, ante, 301, n. 2, can certify a division of opinion. Ins. Co. v. Dunham, 11 Wall. 1. The cer-

tificate of division brings nothing before the court but the points certified, Ward v. Chamberlain, 2 Black, 430; which must be points of law, Silliman v. Hudson R. Bridge, 1 Black, 582; Wilson v. Barnum, 8 How. 258; Dennistoun v. Stewart, 18 How. 565; Brobst v. Brobst, 4 Wall. 2; and distinctly stated; Sadler v. Hoover, 7 How. 646. [See Weeth v. N. E. Mort. Co., 106 U. S. 605. The request to certify need not be expressly stated, if it can be fairly inferred from the record. United States v. Harris, 106 U. S. 629. As to the difference of procedure in civil and criminal cases, see Rev. St. U. S. §§ 650-652; Ex parte Tom Tong, 2 Supr. Ct. Rep. 871; 108 U. S. 556. — B.]

prisonment be allowed, or punishment be inflicted, where the judges of the Circuit Court are divided in opinion upon the question. (d)

The superior courts of the several territories of the United States, in which no district court is established, have the enlarged jurisdiction of circuit courts, subject to revision by writ of error and appeal to the Supreme Court. (e)2 The district and territorial judges of the United States are required to reside within their respective jurisdictions; and no federal judge can act as counsel, or be engaged in the practice of the

law. (f) {306} 6. Jurisdiction of Auxiliary State Courts. — The state

courts are, in some cases, invested, by acts of Congress, with the cognizance of cases arising under the laws of the United States. By the acts of March 8, 1806, and April 21, 1808, and March 3, 1815, the county courts within or adjoining the revenue districts in certain parts of the states of New York, Pennsylvania, and Ohio, were authorized to take cognizance of prosecutions for fines, penalties, and forfeitures, arising under the revenue laws of the United States; and the State or county courts adjoining any collection district, in relation to taxes or internal duties which may, at any time hereafter, be assessed,

(d) Act of April 29, 1802, [c. 81,] sec. 5, 6.

(e) Act of March 3, 1805, [c. 38,] sec. 1. (f) Act of December 18, 1812, sec. 1.

Several questions may be decided at the same time. United States v. Chicago, 7 How. 185. But the division of opinion must be actual, and if certified pro forma only, or if the question rests on a hypothesis, it is the practice of the Supreme Court to decline to answer. Nesmith v. Sheldon, 6 How. 41; Webster v. Cooper, 10 How. 54; Pelham v. Rose, 9 Wall. 103. A division on a motion addressed to the discretion of the court does not present a point which can be certified, although touching its jurisdiction. United States v. Avery, 13 Wall. 251; United States v. Rosenburgh, 7 id. 580.

By the act of June 1, 1872, in case of

a division of opinion, that of the presiding justice is to prevail for the time being; but after final judgment, decree, or order, it is the judges' duty to certify the difference as to any question which might have been reviewed on certificate under the act of 1802, and then either party may remove the final judgment, decree, or order to the Supreme Court, on writ of error or appeal, subject, &c. [The right to a review in such case is irrespective of the amount in controversy, ever since the act of 1875 (18 St. at L. 315). Dow v. Johnson, 100 U. S. 158. — B] 2Ante, 299, n. 1.

have cognizance of all suits for taxes, duties, fines, penalties, and forfeitures, arising thereon. (a)

In attending to this general survey of the organization of the judiciary establishment of the United States, it will be perceived that all the great features of the system are to be found in the act of Congress which was passed in September, 1789, at the first session of the first Congress under the present Constitution. That act has stood the test of experience since that time, with very little alteration or improvement; and this fact is no small evidence of the wisdom of the plan, and of its adaptation to the interest and convenience of the country. The act of 1789 was the work of much profound reflection, and of great legal knowledge; and the system then formed and reduced to practice has been so successful and so beneficial in its operation, that the administration of justice in the federal courts has been constantly rising in influence and reputation.

The principal officers of the courts are attorneys and counsellors, clerks and marshals.1

(a) Vide infra, 400-405. [As to next paragraph, see 300, n. 1.

1 To these may be added commissioners and registers in bankruptcy.

Commissioners (x) were first authorized to be appointed by the Circuit Court for the purpose of taking bail and affidavits in civil cases, by the act of Feb. 10, 1812. See act of March 1, 1817; Admiralty Rules, 5, 35. By the latter act they could also take depositions de bene esse in certain cases, but could not issue a habeas corpus ad testificandum. Ex parte Barnes, 1 Sprague, 133.

Since these acts their powers have been considerably enlarged. By the act of Aug. 23, 1842, they were to exercise all the powers that any justice of the peace or other magistrate of any of the United States might then exercise in respect to offenders for any crime or offence against the United States under the Judiciary Act, § 33, and to issue process for seamen's

wages, as authorized by act of July 20, 1790, § 6.

By the act of Aug. 8, 1846, they were to enforce the decisions of foreign consuls, in certain cases.

When authorized to do so by the United States courts, they may, upon complaint under oath, issue warrants for the apprehension of persons whose extradition is sought under any treaty or convention of the United States, and hear and report upon the evidence to the Secretary of State. Act of Aug. 12, 1848, § 1. The commissioners should be specially designated for the purpose. In re Henrich, 5 Blatchf. 414. And special commissioners may be appointed for the purpose. United States v. Stowell, 2 Curtis, 153.

The action of a commissioner in committing a prisoner may be revised on

(x) A commissioner of a circuit court is an officer of the court, authorized by law, and entitled to such fees, when certi-

fied by the court as correct, as are set forth in United States v. Allred, 155 U. S. 591.

7. Of Attorneys and Counsel. — Attorneys and counsel are regularly admitted by the several courts, to assist the parties in their pleadings, and in the conduct of their causes in those cases in which the parties do not appear and manage their own causes personally, {307} as they are expressly permitted to do. (a) This privilege conceded to parties, though reasonable in itself, is, upon the whole, useless; and the necessity of a distinct profession, to render the application of the law easy and certain to every individual case, has always been felt in every country under the government of written law. As property becomes secure, and the arts are cultivated, and commerce nourishes, and when wealth and luxury are introduced, and create the infinite distinctions and refinements of civilized life, the law will gradually and necessarily assume the character of a complicated science, requiring for its application the skill and learning of a particular profession. After the publication of the twelve tables, suitors at Rome were obliged to resort to the assistance of their patrons, and judicial proceedings became the study and

(a) Act of Congress of September 24, 1789, sec. 35.

habeas corpus in conjunction with a certiorari. In re Henrich, 5 Blatchf. 414; In re Martin, ib. 303; ante, 301, n. 1.

Their number was enlarged, and superior courts of territories empowered to appoint them, by act of Sept. 18, 1850. See act of April 9, 1866, § 4. By the act of Feb. 24, 1855, they were empowered to issue warrants for the arrest of deserters from foreign vessels in certain cases.

By the act of May 15, 1862, they were given powers to take surety of the peace and for good behavior, like to those of other officers, under the act of July 16, 1798.

They are to institute proceedings against persons violating the Civil Eights Bill, and have the same duties with regard to offences under that act as they are authorized to exercise with regard to other offences against the laws of the United States. Act of April 9, 1866, c. 31, § 4, 14 U. S. St. at L. 28.

They are to exercise all the powers that

any justice of the peace may exercise under the act of July 20, 1790, § 7. Act of July 28, 1866, c. 309, 14 U. S. St. at L. 343.

They may take proof of debts in bankruptcy in all cases, subject to the revision of such proofs by the register and by the court. Act of July 27, 1868, c. 258, § 3, 15 U. S. St. at L. 228.

Their numbers are increased, and they are to institute proceedings against persons violating the act of May 31, 1870, c. 114, and have the same duties with regard to offences under that act, as they are authorized to exercise with regard to other offences against the laws of the United States. 16 U. S. St. at L. 142, §9.

Provision for the appointment of registers in bankruptcy is made, and their duties are defined in the act of March 2, 1867, §§ 3-7, and act of July 27, 1868, §3.

practice of a distinct and learned body of men. (b) The division of advocates into attorneys and counsel has been adopted from the prevailing usage in the English courts. The business of the former is to carry on the practical and more mechanical parts of the suit, and of the latter to draft or review and correct the special pleadings, to manage the cause at the trial, and also during the whole course of the suit to apply established principles of law to the exigencies of the case. In the Supreme Court of the United States, the two degrees of attorney and counsel are kept separate, and no person is permitted to practise both as attorney and counsellor in that court. This was by a rule of the court in February, 1790; and when, afterwards, in August, 1801, the court declared that counsellors might be admitted as attorneys, on taking the usual oath, this did not mean or imply, that if a counsellor was thus admitted as attorney, he could continue to act as counsellor. He must make his election between the two degrees.1 In all the other courts of the United States, as well as in the courts {308} of New York and the other states, the same person can be admitted to the two degrees of attorney and counsel, and exercise the powers of each. (a)

Besides the ordinary attorneys, the statute has directed (b) that a meet person, learned in the law, be appointed to act as

(b) Gravina, de Ortu et Prog. Jur. Civ. sec. 33, 40.

(a) In the convention which met in the year 1846 to revise the constitution of New York, there was a strong effort made to remove all impediments to the free admission of all persons to the courts of justice to act as counsel and attorneys. But the character and utility of the profession were saved, and the attempted innovation resulted in the constitutional provision, that "any male citizen of the age of 21 years, of good moral character, and who possesses the requisite qualifications of learning and ability, should be entitled to admission to practice in all the courts of this state." This was leaving the rule for admission to be essentially as it before existed, for it must of necessity belong to the courts, in which the admission is applied for, to judge of the satisfactory test of the good moral character and the requisite learning and ability of the candidates.

The courts ought to be vigilant and thorough in their examination respecting the ability, learning, and character of candidates for admission to practise as advocates in the courts. The interests of clients, the safety of the community, the purity, intelligence, and integrity of the administration of justice, and, indeed, the preservation of all our constitutional rights and liberties, are deeply concerned in the elevated, moral, and educational standard and character of the members of the legal profession.

(b) Act of Congress of September 24, 1789, sec. 35.

1 He can now act as both. Ex parte Garland, 4 Wall. 333, 375.

Attorney-General of the United States; and besides special and incidental duties, it is made generally his duty to prosecute and conduct all suits in the Supreme Court in which the United States are concerned, and to give his advice and opinion upon questions of law, when required by the President or the heads of the departments.l Bach judicial district has likewise a public officer to act as attorney for the United States in the district, and to prosecute all delinquents for crimes or offences cognizable under the authority of the United States, and to prosecute all civil actions within his district in which the United States are concerned. (c)

8. Of Clerks. — Clerks are appointed by the several courts, except that the clerk of the district court is ex officio clerk of the circuit court in such district. (x) They have the custody of the

(c) Ib. The act of Congress of 29th May, 1830, [c. 153,] sec. 1, instituted the office of Solicitor of the Treasury; and it is his duty to direct and superintend all orders, suits, or proceedings in law or equity, for the recovery of money, chattels, and lands, in the name and for the use of the United States, and to have charge of all lands and other property conveyed to the United States in payment of debts, and of all trusts created for their use in payment of debts due to them, and to sell and dispose of lands assigned to the United States, or vested in them by mortgage in payment of debts; and to instruct the district attorneys, marshals, and clerks of the circuit and district courts, in relation to suits in which the United States are concerned. See the act aforesaid, in which his powers and duties are specifically detailed. [See 12 U. S. St. at L. 739; 14 id. 207.]

1 But not when required by a subordinate officer, 10 Op. Att.-Gen. 458; and only in actual cases presented for the action of an executive department, 11 Op. Att.-Gen. 189; ib. 431; 10 id. 50. See, generally, as to this office, 6 Op. Att.-Gen. 326, and especially the act of June 22, 1870, c. 150, 16 U. S. St. at L. 162, establishing the Department of Justice, and also creating the office of Solicitor-General.

An act of Jan. 24, 1865, requiring a test oath of attorneys and counsellors before they should be allowed to practise in the United State courts, was held uncon-

stitutional in Ex parte Garland, 4 Wall. 333, stated at length, post, 409, n. 1. See Ex parte Law, 35 Ga. 285; Murphy & Glover Test Oath Cases, 41 Mo. 339. See further, as to the constitutional rights of attorneys, Randall, Petr., 11 Allen, 473; Ex parte Bradley, 7 Wall. 364.

The clerk of each circuit court is to be appointed by the judge of that circuit. Act of April 10, 1869, c. 22, § 3, 16 U. S. St. at L. 45.

As to his bond, see act of March 3, 1863, c. 93, § 2, 12 U. S. St. at L. 768.

(x) An order of court requiring a service to be performed is sufficient authority as between a clerk of court, or a commissioner, and the government for the

performance of the service, and for the allowance of the proper fee therefor. United States v. Van Duzee, 140 U. S. 169; United States v. Allred, 156 U. S. 591.

seal and records, and are bound to sign and seal all process, and to record the proceedings and judgments of the courts. And this is a trust of so much importance, that, in addition to the ordinary oath of office, clerks are obliged to give security to the public for the faithful performance of their duty. (d) To guard still further against abuse of office, all moneys paid into the circuit or district courts, or received by the officers in cases pending therein, are required to be immediately deposited in bank; and no money can be drawn out of the bank, except by an order of a judge, to be signed by him, and certified of record by the clerk. The clerks are likewise bound, at every regular session of the courts, to exhibit an account of all the moneys remaining in court. (e) 9. Of Marshals. — {309} Marshals are analogous to sheriffs at common law.1 (x) They are appointed for each judicial district by the President and Senate, for the term of four years, but are removable at pleasure; and it is the duty of the marshal to attend the district and circuit courts, and to execute, within the district, all lawful precepts directed to him, and to command all requisite assistance in the execution of his duty. There are also various special duties assigned by statute to the marshals. The appointment of deputies is a power incidental to the office,

(d) Act of Congress of September 24, 1789, sec. 7.

(e) Act of March 3, 1817, [c. 108.]

1 The marshals of the several districts and their deputies have the same powers in executing the laws of the United States as sheriffs and their deputies in the several states have by law in executing the laws of the respective states. Act of July 29, 1861, c. 25, § 7, 12 U. S. St. at L. 282. [By statute, March 1, 1879, c. 125, § 9, 20 St. at L. 341, marshals are given

power to arrest persons found operating illicit distilleries, and to take them before a judicial officer within the county.]

A vacancy in the office of marshal may be filled by the circuit judge until an appointment is made by the President. Act of March 3, 1863, c. 93, § 2, 12 U. S. St. at L. 768.

(x) In general if the marshal, in enforcing State remedies, performs the same duties as are imposed by State law upon the sheriffs of the State courts, he can maintain in the circuit court the same actions that the sheriff has in the State court. Wade v. Wortsman, 29 Fed. Rep. 754. If replevin by process from a State court is attempted of goods in a marshal's possession, he can sue on the bond in his

own name in the Federal court without regard to the citizenship of himself and the obligors in the bond. Patterson v. Mater, 26 Fed. Rep. 31. A suit brought upon the marshal's bond in a Federal circuit court is not dependent upon citiizenship. See Adler v. Newcomb, 2 Dillon, 45; Wermore v. Rice, 1 Biss. 237; United States v. Davidson, id. 433; Lawrence v. Norton, 13 Fed. Rep. 1.

and the marshal is responsible civiliter for their conduct, and they are removable not only at his pleasure, but they are also by statute made removable at the pleasure of the district or circuit courts. (a) The act says, that the marshal shall be removable at pleasure, without saying by whom; and on the first organization of the government, it was made a question whether the power of removal, in case of officers appointed to hold at pleasure, resided anywhere but in the body which appointed, and of course whether the consent of the Senate was not requisite to remove. This was the construction given to the Constitution while it was pending for ratification before the state conventions, by the author of the Federalist. "The consent of the Senate," the Federalist observes, (b) "would be necessary to displace as well as to appoint;" and he goes on to observe, that "those who can best estimate the value of a steady administration will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body, which, from the great permanency of its own composition, will, in all probability, be less subject to inconstancy than any other member of the government." But the construction which was given to the Constitution by Congress, after great consideration and discussion, was different. In the act of establishing {310} the treasury department, (a) the secretary was contemplated as being removable from office by the President. The words of the act are, "That whenever the secretary shall be removed from office by the President of the United States, or in any other case of vacancy in the office, the assistant shall act," &c. This amounted to a legislative construction of the Constitution, and it has ever since been acquiesced in and acted upon, as of decisive authority in the case. It applies equally to every other officer of government appointed by the President and Senate, whose term of duration is not specially declared. It is supported by the weighty reason, that the subordinate officers in the executive department ought to hold at the pleasure of the head of that department, because he is invested generally with the executive authority, and every participation in that authority by the Senate was an exception to a general principle, and ought to be taken strictly. The President is the

(a) Act of Congress of September 24, 1789, sec. 27.

(b) No. 77. (a) September 2, 1789, sec. 7.

great responsible officer for the faithful execution of the law, and the power of removal was incidental to that duty, and might often be requisite to fulfil it.

This question has never been made the subject of judicial discussion; and the construction given to the Constitution in 1789 has continued to rest on this loose, incidental, declaratory opinion of Congress, and the sense and practice of government since that time. It may now be considered as firmly and definitively settled, and there is good sense and practical utility in the construction. It is, however, a striking fact in the constitutional history of our government, that a power so transcendent as that is, which places at the disposal of the President alone the tenure of every executive officer appointed by the President and Senate, should depend upon inference merely, and should have been gratuitously declared by the first Congress in opposition to that high authority of the {311} Federalist; and should have been supported or acquiesced in by some of those distinguished men who questioned or denied the power of Congress even to incorporate a national bank. (a)l

(a) As the instances of the exercise of the power of removal from office have been multiplied beyond all former example, under President Jackson's administration, the propriety of the concession of the power itself, by the first Congress, has been strongly questioned. It is in the power of Congress, at any time, says a high authority, to correct the extensive operation of this executive power, by placing the appointment of inferior officers (and which would include ninety-nine out of a hundred of the lucrative offices of the government) in other hands. 3 Story's Comm. 394-397.

1Tenure of Office Acts. — By the Tenure of Office Act of March 2, 1867, 14 U. S. St. at L. 430, c. 154, § 1, it was enacted that every person who is appointed to any civil office by and with the advice and consent of the Senate, and who becomes duly qualified to act therein, shall be entitled to hold such office until a successor shall have been in like manner appointed and duly qualified, with a proviso as to the heads of departments. It may be considered as settled by the discussion which this act received before and after its passage, and by the events to which it gave rise, that it was within the constitutional power of the legislature to pass. Johnson's Trial, passim, 2 Am. Law Rev. 560; Cong.

Globe, Feb. 1, 1867, Mr. Hale's Speech; United States v. Guthrie, 17 How. 284, 298; Webster's Speech in Senate, Feb. 16, 1835, Works, iv.; Marbury v. Madison, 1 Cranch, 137, 167, 168, 172.

The above provisions were repealed, however, by the act of April 5, 1869, c. 10, 16 U. S. St. at L. 6, and it was enacted instead, "that every person holding any civil office to which he has been or hereafter may be appointed by and with the advice and consent of the Senate, and who shall have become duly qualified to act therein, shall be entitled to hold such office during the term for which he shall have been appointed, unless sooner removed by and with the advice and con-

The marshal is obliged to give security to the United States in twenty thousand dollars, for the faithful performance of the duties of his office by himself and his deputies, and, together with his deputies, to take an oath of office. (b) By the common law. the death of the principal is a virtual repeal of authority of the substitute or deputy; but to guard against any inconvenience which might arise from the operation of this principle, and to prevent the mischiefs of a vacancy in office, the act establishing the judicial courts has provided, that in case of the death of the marshal, his deputies shall continue in office, unless otherwise especially removed, and shall execute the same in the name of the deceased marshal, until another marshal shall be appointed and sworn. So, a marshal, when removed from office, or his term of office expires, may still execute all process in his hands, and he remains responsible for his prisoners until they are duly delivered over to his successor. (c) And with respect to the custody of the prisoners, under the law of the United States, the marshal is directed to deliver his prisoners to the keeper of one of the jails of the state in which he is marshal, in cases where the legislature of the state, in conformity with the recommendation of Congress, have made it the duty of the jailers to receive them; but where they have not, the marshal, under the direction of the district judge, is to provide his own place of security. (d)

(b) Act of Congress of September 24, 1789, sec. 27. By the act of Congress of April 10, 1806, c. 21, the marshal's bonds are to be filed and recorded in the office of the clerk of the district court or circuit court sitting within the district; and suits for the breach of the condition of any such bond may be instituted in the name and for the sole use of the person injured by a breach of the condition of the bond, and judgments on the bond are to remain as a security for the benefit of any person injured by the breach thereof.

(c) Ib. sec. 28; [Doolittle v. Bryan, 14 How. 563; Stewart v. Hamilton, 4 McLean, 534; United States v. Bank of Arkansas, Hempst. 460.]

(d) Resolutions of Congress, September 23, 1789, and March 3, 1791. See also the act of Congress of January 6, 1800, and 1 Paine, 368. The marshal is bound to take from the prisoner under United States process a bond for the limits, as in the case for prisoners under state process.

sent of the Senate, or by the appointment, with the like advice and consent, of a successor in his place, except," &c.

The President is empowered, during any recess of the Senate, in his discretion,

to suspend any such civil officer, except United States judges, until the end of the next session of the Senate, and to fill the vacancy in the mean time.

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