LECTURE XVI.

OF THE JURISDICTION OF THE FEDERAL COURTS IN RESPECT TO THE COMMON LAW, AND IN RESPECT TO PARTIES.

IT has been a subject of much discussion whether the courts of the United States have a common-law jurisdiction, and, if any, to what extent.

1. Common-law Jurisdiction in Criminal Cases.(x) — In the case of the United States v. Worrall, (a) in the Circuit Court at Phila-

(a) 2 Dallas, 384.

(x) The government of the United States has no general authority deduced from sovereignty, with respect to the personal or social rights or relations of citizens, but only such authority as is conferred by the Constitution. In re Burrus, 136 U. S. 586. That government has no inherent common-law prerogatives. In re Barry, 136 U. S. 597; 42 Fed. Rep. 113; Swift v. Philadelphia & R. R. Co., 64 Fed. Rep. 59; 58 id. 858; but see 29 Am. L. Rev. 134. The U. S. Supreme Court, possessing only the powers conferred upon it, cannot review questions of general or local law. United States v. Thompson, 93 U. S. 586; Poppe v. Langford, 104 U. S. 770.

In the criminal law there are no common-law offences against the United States. United States v. Britton, 110 U. S. 199, 206; United States v. Eaton, 144 U. S. 677; In re Greene, 52 Fed. Rep. 104. But there is a peace of the United States; and a person who assaults a judge of the United States while in the discharge of his duties violates that peace, and in such case the U. S. marshal stands in the same

relation thereto as the sheriff of a county stands to the peace of a State. In re Neagle, 135 U. S. 1, 69. Common-law proceedings for contempt are not subject to the right of trial by jury, and are "due process of law" within the 14th Amendment. Eilenbecker v. District Court, 134 U. S. 31. The Federal courts have the power, not immediately derived from statute, to punish contempts as incidental to the exercise of judicial functions. Ex parte Terry, 128 U. S. 289; Ex parte Robinson, 19 Wall. 505, 510. And the impeachment of a judge of a Federal court, which is a criminal trial, is not limited to statutory offences under the acts of Congress. See 16 Am. L. Rev. 798, 816.

The U. S. Supreme Court has no general authority to review on error or appeal the criminal judgments of the circuit courts. Ex parte Yarbrough, 110 U. S. 651. Suits to recover penalties under the revenue laws are of a quasi-criminal nature, though civil actions in form; in them the case must be proved beyond a reasonable doubt, and the defendant cannot be re-

delphia, the defendant was indicted and convicted of an attempt to bribe the commissioner of the revenue; and it was contended, on the motion in arrest of judgment, that the court had no jurisdiction of the case, because all the judicial authority of the federal courts was derived, either from the Constitution, or the acts of Congress made in pursuance of it, and an attempt to bribe the commissioner of the revenue was not a violation of any constitutional or legislative prohibition. Whenever Congress shall think any provision by law necessary to carry into effect the constitutional powers of the government, it was said, they may establish it, and then a violation of its sanctions will come within the jurisdiction of the circuit courts, which have exclusive cognizance of all crimes and offences cognizable under the authority of the United States. Congress had provided by law for the punishment of various crimes, and even for the punishment of bribery itself, in the case of a judge, an officer of the customs, or an officer of the excise; but in the case of the commissioner of the revenue, {332} the act of Congress did not create or declare the offence. The question then fairly and directly presented itself, what was there to render it an offence arising under the Constitution or laws of the United States, and cognizable under their authority? A case arising under a law must mean a case depending on the exposition of the law, in respect to something which the law prohibits or enjoins; and if it were sufficient, in order to vest a jurisdiction to try a crime or sustain an action, that a federal officer was concerned and

quired to give or produce evidence against himself. Boyd v. United States, 116 U. S. 616; Lees v. United States, 150 U. S. 476; Re Strouse, 1 Sawyer, 605; Stanwood v. Green, 2 Abb. U. S. 184. Allegations of an offence against the United States, which is not so in fact, deprive a U. S. commissioner of jurisdiction to examine the accused, when there are no other facts in the case than those contained in the affidavit upon which he was arrested. Ex parte Perkins, 29 Fed. Rep. 900.

The Federal jurisdiction of crimes is based primarily upon the theory of an offence committed against the United

States and its laws. It does not preclude a concurrent indictment and trial by the State when, as in the case of making and uttering counterfeit money, the same act violates both Federal and State laws. See In re Loney, 134 U. S. 372; People v. Welch, 141 N. Y. 266. A person convicted of crime in a Federal court can be sentenced to imprisonment in a State penitentiary only under the express authority by a statute, and then only for more than one year, and at hard labor. In re Bonner, 151 U. S. 242; In re Mills, 135 U. S. 263; Ex parte Friday, 43 Fed. Rep. 916; United States a. Cobb, id. 570.

affected by the act, a source of jurisdiction would be opened, which would destroy all the barriers between the judicial authorities of the states and the general government. Though an attempt to bribe a public officer be an offence at common law, the Constitution of the United States contains no reference to a common-law authority. Every power in the Constitution was matter of definite and positive grant, and the very powers that were granted could not take effect until they were exercised through the medium of a law. Though Congress had the power to make a law which would render it criminal to offer a bribe to the commissioner of the revenue, they had not done it, and the crime was not recognized either by the legislative or constitutional code of the Union.

In answer to this view of the subject, it was observed, that the offence was within the terms of the Constitution, for it arose under the law of the United States, and was an attempt by bribery to obstruct or prevent the execution of the laws of the Union. If the commissioner of the revenue had accepted the bribe, he would have been indictable in the courts of the United States; and, upon principles of analogy, the offence of the person who attempted it must be equally cognizable in those courts. The prosecution against Henfield, for serving on board a French privateer against the Dutch, was the exercise of a common-law power, applied to an offence against the law of nations, and a breach of a treaty, which provided no specific penalty for such a case.

The court were divided in opinion on this question. In the opinion of the circuit judge, an indictment at common

{333} law could not be sustained in the Circuit Court. It was admitted, that Congress were authorized to define and punish the crime of bribery; but as the act charged as an offence in the indictment had not been declared by law to be criminal, the courts of the United States could not sustain a criminal prosecution for it. The United States, in their national capacity, have no common law, and their courts have not any common-law jurisdiction in criminal cases, and Congress have not provided by law for the offence contained in the indictment; and until they defined the offence, and prescribed the punishment, he thought the court had not jurisdiction of it.

The district judge was of a different opinion, and he held that the United States were constitutionally possessed of a common-

law power to punish misdemeanors, and the power might have been exercised by Congress in the form of a law, or it might bo enforced in a course of judicial proceeding. The offence in question was one against the well-being of the United States, and from its very nature cognizable under their authority.

This case settled nothing, as the court were divided; but it contained some of the principal arguments on each side of this nice and interesting constitutional question.

In the case of The United States v. Burr, which arose in the Circuit Court of Virginia, in 1807, the Chief Justice of the United States declared, (a) that the laws of the several states could not be regarded as rules of decision in trials for offences against the United States, because no man could be condemned or prosecuted in the federal courts on a state law. The expression, trials at common law, used in the 34th section of the Judiciary Act, was not applicable to prosecutions for crimes. It applied to civil suits, as contradistinguished from criminal prosecutions, and to suits at common law, as contradistinguished from those which came before {334} the court sitting as a court of equity and admiralty. He admitted, however, that when the Judiciary Act, sec. 14, authorized the courts to issue writs not specially provided for by statute, but which were agreeable to the principles and usages of law, it referred to that generally recognized and long-established law, which formed the substratum of the laws of every state.

The case of The United States v. Hudson & Goodwin (a) brought this great question in our national jurisprudence for the first time before the Supreme Court of the United States. The question there was, whether the Circuit Court of the United States had a common-law jurisdiction in cases of libel. The defendants had been indicted in the Circuit Court in Connecticut, for a libel on the President of the United States, and the court was divided on the point of jurisdiction. A majority of the Supreme Court decided, that the circuit courts could not exercise a common-law jurisdiction in criminal cases. (b) Of all

(a) Opinion delivered September 3, 1807, and reported by Mr. Ritchie.

(a) 7 Cranch, 32.

(b) S. P. infra, 361, United States v. Bevans, United States v. Wiltberger, also infra, 362; and United States v. Mackenzie & Gansevoort, District Court, New York, January 11, 1843. In the states of Ohio and Louisiana, it is understood to be held

the courts which the United States, under their general powers, might constitute, the Supreme Court was the only one that possessed jurisdiction derived immediately from the Constitution. All other courts created by the general government possessed no jurisdiction but what was given them by the power that created them, and could be vested with none but what the power ceded to the general government would authorize them to confer; and the jurisdiction claimed in that case has not been conferred by any legislative act. When a court is created, and its operations confined to certain specific objects, it could not assume a more extended jurisdiction. Certain implied powers must necessarily result to the courts of justice from the nature of their institution, but jurisdiction of crimes against the state was not one of them. {335} To fine for contempt, to imprison for contumacy, to enforce the observance of orders, are powers necessary to the exercise of all other powers, and incident to the courts, without the authority of a statute. But to exercise criminal jurisdiction in common-law cases was not within their implied powers, and it was necessary for Congress to make the act a crime, to affix a punishment to it, and to declare the court which should have jurisdiction.

The general question was afterwards brought into renewed discussion, in the Circuit Court of the United States for Massachusetts, in the case of The United States v. Coolidge. (a) Notwithstanding the decision in the case of The United States v. Hudson & Goodwin, the court in Massachusetts thought the question, in consequence of its vast importance, entitled to be reviewed and again discussed, especially as the case in the Supreme Court had been decided without argument, and by a majority only of the court. In this case, the defendant was indicted for an offence committed on the high seas, in forcibly rescuing a prize which had been captured by an American cruiser. The simple question was, whether the Circuit Court had jurisdiction to punish offences against the United States, which had not been previously defined, and a specific punishment affixed by statute. The judge who presided in that court did not think it necessary to consider the broad question, whether the United States, as a sovereign power, had

that there is no common-law indictable offence, and that every indictable offence must be grounded upon some statute. (a) 1 Gallison, 488.

entirely adopted the common law. He admitted that the courts of the United States were courts of limited jurisdiction, and could not exercise any authorities not confided to them by the Constitution and laws made in pursuance of it. But he insisted that when an authority was once lawfully given, the nature and extent of that authority, and the mode in which it should be exercised, must be regulated by the rules of the common law, and that if this distinction was kept in sight, it would dissipate the whole difficulty and obscurity of the subject.

{336} It was not to be doubted that the Constitution and laws of the United States were made in reference to the existence of the common law, whatever doubts might be entertained as to the question, whether the common law of England, in its broadest sense, including equity and admiralty as well as legal doctrines, was the common law of the United States. In many cases, the language of the Constitution and laws would be inexplicable without reference to the common law; and the existence of the common law is not only supposed by the Constitution, but it is appealed to for the construction and interpretation of its powers.

It was competent for Congress to confide to the circuit courts jurisdiction of all offences against the United States; and they have given to it exclusive cognizance of most crimes and offences cognizable under the authority of the United States. The words of the 11th section of the Judiciary Act of 1789 were, that the circuit courts should have "exclusive cognizance of all the crimes and offences cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct." This means all crimes and offences to which, by the Constitution of the United States, the judicial power extends, and the jurisdiction could not be given in more broad and comprehensive terms. To ascertain what are crimes and offences against the United States, recourse must be had to the principles of the common law, taken in connection with the Constitution. (a) Thus, Congress had provided for the punishment of murder, manslaughter, and perjury, under certain

(a) Judge Wilson, in his charge to a grand jury in the Circuit Court of the United States, in Virginia, in 1791, observed, that we must recur to the common law for the definition and description of many crimes against the United States. See Wilson's Works, iii. 371-377.

circumstances, but had not defined those crimes. The explanation of them must be sought in and {337} exclusively governed by the common law; and upon any other supposition, the judicial power of the United States would be left in its exercise to arbitrary discretion. In a great variety of cases, arising under the laws of the United States, the will of the legislature cannot be executed unless by the adoption of the common law. The interpretation and exercise of the vested jurisdiction of the courts of the United States, as, for instance, in suits in equity and in causes of admiralty and maritime jurisdiction, and in very many other cases, must, in the absence of positive law, be governed exclusively by the common law.

There are many crimes and offences, such as offences against the sovereignty, the public rights, the public justice, the public peace, and the public police of the United States, which are cognizable under its authority; and in the exercise of the jurisdiction of the United States over them the principles of the common law must be applied, in the absence of statute regulations. Treason, conspiracies to commit treason, embezzlement of public records, bribery, resistance to judicial process, riots and misdemeanors on the high seas, frauds and obstructions of the public laws of trade, and robbery and embezzlement of the mail of the United States, are offences at common law, and when directed against the United States they are offences against the United States, and, being offences, the circuit courts have cognizance of them, and can try and punish them upon the principles of the common law. The punishment must be fine and imprisonment, for it is a settled principle, that where an offence exists to which no specific punishment is affixed by statute, fine and imprisonment is the punishment. The common law is then to be referred to, not only as the rule of decision in criminal trials in the courts of the United States, but in the judgment or punishment; and by common law he meant the word in its largest sense, as including the whole

system of English jurisprudence.

{338} It was accordingly concluded that the circuit courts had cognizance of all offences against the United States, and what those offences were depended upon the common law applied to the powers confided to the United States, and that the circuit courts, having such cognizance, might punish by fine and imprisonment, where no punishment was specially provided

by statute. The admiralty was a court of extensive criminal, as well as civil, jurisdiction; and offences of admiralty jurisdiction were exclusively cognizable by the United States, and were offences against the United States, and punishable by fine and imprisonment, where no other punishment was specially prescribed.

This case was brought up to the Supreme Court, but it was not argued. A difference of opinion still existed among the members of the court, and, under the circumstances, the court merely said, that they did not choose to review their former decision in the case of The United States v. Hudson & Goodwin, or draw it in doubt. (a) The decision was for the defendant, and, consequently, against the claim to any common-law jurisdiction in criminal cases.1

These jarring opinions and decisions of the federal courts have not settled the general question as to the application and influence of the common law, upon clear and definite principles; and it may still be considered, in civil cases, as open for further consideration. The case of Hudson & Goodwin decided that the United States courts had no jurisdiction given them by the Constitution or by statute, over libels; and the case of Worrall decided that they had no jurisdiction in the case of an attempt to bribe a commissioner of the revenue. If that were so, the common law certainly could not give them any. The cases were therefore very correctly decided upon the principle assumed by the court. But the subsequent case of Coolidge did not fall within that principle, because the offence there charged {339} was clearly a case of admiralty jurisdiction, and the courts of the United States would seem to have had general and exclusive jurisdiction over the case. Mr. Du Ponceau, in his "Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States," has ably examined the subject, and shed strong light on this intricate and perplexed branch of the national jurisprudence. He pursues the distinction origi-

(a) 1 Wheaton, 415; [United States v. Hall, 98 U. S. 343; United States v. Reese, 92 U. S. 214.]

1 United States v. Barney, 5 Blatchf. 294; United States v. Wilson, 3 Blatchf. 535; United States v. Ramsay, Hempst.

481; Pennsylvania v. Wheeling Bridge Co., 13 How. 518.

nally taken in the Circuit Court in Massachusetts, and maintains that we have not, under our federal government, any common law, considered as a source of jurisdiction; while, on the other hand, the common law, considered merely as the means or instrument of exercising the jurisdiction, conferred by the Constitution and laws of the Union, does exist, and forms a safe and beneficial system of national jurisprudence. The courts cannot derive their right to act from the common law. They must look for that right to the Constitution and law of the United States. But when the general jurisdiction and authority is given, as in cases of admiralty and maritime jurisdiction, the rules of action under that jurisdiction, if not prescribed by statute, may and must be taken from the common law, when they are applicable, because they are necessary to give effect to the jurisdiction. (a)

The principle assumed by the courts in the cases of Worrall and of Hudson & Goodwin is considered to be a safe and sound principle. The mere circumstance that the party injured by the offence under prosecution was an officer of the government of the United States does not give jurisdiction; for neither the Constitution, nor the judicial acts founded upon it, gave the federal courts a general jurisdiction in criminal cases, affecting the officers of government, as they have in cases affecting public ministers and consuls. Because an officer was appointed under the Constitution, {340} that would not of itself render all cases in which they were concerned, or might be affected, cases arising under the Constitution and laws, and cognizable by the judiciary. Such a wide construction would be transferring legislative power to the judiciary, and invest it with almost unlimited jurisdiction; for where is the act that might not, in some distant manner, be connected with the Constitution or laws of the United States? It rests alone in the discretion of Congress to throw over the persons and character of the officers of the government, acting in their official stations, a higher protection than that afforded by the laws of the states; and when laws are made for that purpose, the federal courts will be charged with the duty of executing them.

This appears to be sound doctrine, and to be deduced from the cases which have been mentioned. There is much weight

(a) Cui jurisdictio data est, ea quoque concessa esse videntur, sine quibus jurisdictio explicari non potest. Dig. 2. 1. 2.

undoubtedly due to the argument of the Circuit Court of Massachusetts; and an attempt to bribe an officer of the government, or to libel an officer of the government, in relation to his official acts, would seem to be an offence against that government. They tend directly to weaken or pervert the administration of it; and if it once be admitted that such acts amount to an offence against the United States, they must of course be cognizable under its authority, and belong to the jurisdiction of the circuit courts. The great difficulty and the danger is, in leaving it to the courts to say what is an offence against the United States, when the law has not specifically defined it. The safer course undoubtedly is, to confine the jurisdiction in criminal cases to statute offences duly defined, and to cases within the express jurisdiction given by the Constitution. The admiralty jurisdiction of the federal courts is derived expressly from the Constitution; and criminal cases belonging to that jurisdiction by the common law, and by the law of nations, might well have been supposed to be cognizable in the admiralty courts, without any statute authority. If the common law be a rule of decision in the exercise of the {341} lawful jurisdiction of the federal courts, why ought it not to apply to criminal as well as to civil cases, and upon the same principle, when jurisdiction is clearly vested? If Congress should, by law, authorize the district or circuit courts to take cognizance of attempts to bribe an officer of the government in the exercise of his official trust, and should make no further provision, the courts would, of course, in the description, definition, and prosecution of the offence, be bound to follow those general principles and usages which are not repugnant to the Constitution and laws of the United States, and which constitute the common law of the land, and form the basis of all American jurisprudence. Though the judiciary power of the United States cannot take cognizance of offences at common law, unless they have jurisdiction over the person or subject-matter given them by the Constitution or laws made in pursuance of it; yet, when the jurisdiction is once granted, the common law, under the correction of the Constitution and statute law of the United States, would seem to be a necessary and a safe guide, in all cases, civil and criminal, arising under the exercise of that jurisdiction, and not specially provided for by statute. Without such a guide, the courts would be left to a dangerous discretion, and

to roam at large in the trackless field of their own imaginations. (a)1

(a) Military and naval crimes and offences, committed while the party is attached to, and under the immediate authority of, the army or navy of the United States, and in actual service, are not cognizable under the common-law jurisdiction of the courts of the United States. They are not included in the Judiciary Act of 24th September, 1789. They are cognizable in the military and naval courts-martial instituted under the acts of Congress. The circuit and district courts of the United States have no criminal jurisdiction but what is expressly conferred upon them by statute. United States v. Hudson, 7 Cranch, 32; United States v. Bevans, 3 Wheaton, 336; Washington, J., in Houston v. Moore, 5 Wheaton, 29; Sergeant's Constitutional Law, 131 (1st ed.); vide supra, 334, and infra, 362, 363, 364. It seemed, however, to be left as an unsettled question, in the case of The United States v. Mackenzie, infra, 363, [note,] whether the military and naval courts of the United States, and the courts of civil jurisdiction, had concurrent powers in questions of the above nature, under the acts of Congress. If they had, an acquittal by a court-martial would be a bar to any criminal proceeding in any other court, for no person is to be put in jeopardy twice for the same offence. The better opinion in that case would also be, that a prosecution, instituted and pending before a naval tribunal, would be a good plea in abatement of any prosecution subsequently instituted in a national civil court of criminal jurisdiction; for it would be unjust, absurd, and impracticable to have a trial for the

1 A plea of autrefois acquit, by a general court-martial, under the act of Congress of March 3, 1863, § 30, is no defence to an indictment for murder under the laws of a state. State v. Rankin, 4 Coldw. (Tenn.) 145. (x)

It seems proper to insert here the famous case as to military commissions. During the rebellion, one Milligan, a citizen of the United States resident in Indiana, who was neither a prisoner of war nor in the military service of the United States, was arrested at his home by order

of General Hovey, brought before a military commission, tried, and sentenced to be hanged. On petition for habeas corpus, the judges of the Circuit Court were divided in opinion, but the Supreme Court held that inasmuch as the court knew judicially that the authority of the United States was unopposed, and its courts were open in Indiana, the military commission had no jurisdiction of the case. As to whether Congress could have given the commission jurisdiction the judges were divided. Ex parte Milligan, 4 Wall. 2.

(x) The sentence of a court martial cannot be reviewed by habeas corpus. Johnson v. Sayre, 158 U. S. 109. The jurisdiction of a court-martial may always be inquired into on habeas corpus, but a writ of prohibition will not lie to correct errors of law within its jurisdiction. Dynes v. Hoover, 20 How. 65; Barrett v. Hopkins, 2 McCrary, 129; Smith v. Whitney, 116 U. S. 167. Nor, if the court-martial has jurisdiction, can its proceedings be collaterally reviewed by habeas

corpus in the civil courts. In re Davison, 22 Blatch. 473; In re McVey, 11 Sawyer, 25; In re White, 17 Fed. Rep. 723; In re Zimmerman, 30 id. 176. Upon the general charge of ''conduct prejudicial to good order and military discipline," and the specified charge of homicide, before a courtmartial, a plea of former acquittal by a civil court is a defence going to the merits and not to the jurisdiction. United States v. Maney, 61 Fed. Rep. 140.

2. Common-law Jurisdiction in Civil Cases. — The Supreme Court of the United States, in Robinson v. Campbell, (b) went far

same crime going on at the same time in two distinct co-ordinate tribunals, under the same government. The one that first takes cognizance of the ease attaches to itself, of course, exclusive jurisdiction. See infra, ii. 122-125. The sounder doctrine, however, is, that the act of Congress of April 23, 1800, c. 33, creating a naval code of martial law for the trial of crimes and offences committed in the naval service, withdrew the cognizance of crimes in the naval service from courts of civil jurisdiction, and placed them exclusively in courts-martial, acting under a distinct and peculiar code, and which Lord Mansfield termed "a sea military code, which the wisdom of ages had formed." That act of Congress specified particular crimes cognizable by naval courts-martial, and also declared, that all crimes committed by persons belonging to the navy, and not therein specified, should be punished "according to the laws and customs in such cases at sea." The opinions of Lord Mansfield and Lord Loughborough, in Johnstone v. Sutton, 1 T. R. 548, contain principles which go far, by their masterly strength, to establish the necessity and justice of the exclusive jurisdiction of the military tribunals, in cases of crimes committed in the naval service; for it is in that service that commanders must act "upon delicate suspicions — upon the evidence of their own eye; — that they must give desperate commands; — that they must require instantaneous obedience; — and a military tribunal is capable of feeling all these circumstances." He further observes, that "where a man is charged with an offence against the articles, or where the articles are silent, against the usages of the navy, he can only be tried by a court-martial." The 4th section of the act of Congress of March 3, 1825, c. 276, commonly called the Crimes Act, seems to be essentially a repetition of the 8th section of the act of Congress of April 30, 1790, c. 36, and that provision did not apply to the navy of the United States, for it withheld that express jurisdiction to the courts of the United States which the cases already cited would seem to require. We would have expected some express jurisdiction given to the civil courts over crimes at sea in the United States navy, after the enactment of the naval code of 1800, and the specific provisions therein for the punishment of crimes committed in the navy, by naval courts-martial, if such had been the policy and intention of the law. Not only a sound construction of the statute law, but the discipline and efficiency of the naval military service, strongly sustain this conclusion. It is not a question susceptible of doubt, that Congress may, under the Constitution, confer upon courts-martial in the army and navy the trial and punishment of crimes, capital and otherwise, for they are authorized "to make rules for the government and regulation of the land and naval forces;" and cases "arising in the land and naval forces" are excepted from the provision, that "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury." Military law is a system of regulations for the government of the armies in the service of the United States, authorized by the act of Congress of April 10, 1806, and known as the articles of war. And naval law is a similar system for the government of the navy, under the act of Congress of April 23, 1800. But martial law is quite a distinct thing, and is founded on paramount necessity, and proclaimed by a military chief. In the case of Captain Mackenzie, above alluded to, the subject of jurisdiction was again brought before Judge Betts, holding the Circuit Court of the United States in New York, March 20, 1843 (United States v. Mackenzie, 1 N. Y. Legal Observer, 371); and, after a powerful

(b) 3 Wheaton, 212; 10 id. 159, S. P.

towards the admission of the existence and application of the common law to civil cases in the federal courts. The Judiciary Act of 1789 had declared (c) that the laws of the several states, except where the Constitution, treaties, or statutes of the Union otherwise required, should be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they applied. (d)1 The subsequent act of May 8, 1792, for regulating processes in the courts of the United States, (e) confirmed {342} "the forms of writs, executions, and other processes, except their style, and the forms and modes of proceeding then used in suits at common law in the federal courts, and declared that the modes of proceeding in suits in equity should be according to the principles and usages of courts of equity." But all these forms and modes were to be "subject to such alterations and additions as the said courts respectively should, in their discretion, deem expedient, or to such regulations as the Supreme Court of the United States should think proper from time to time to prescribe to any circuit or district court concerning the same."(a) 2 (x) Under those pro-

discussion, he instructed and charged the grand jury, that the jurisdiction of the naval court-martial was exclusive, and that the civil tribunals had no jurisdiction in the case of Captain Mackenzie, then on trial in the harbor of New York, before a naval court-martial, on a charge of murder on the high seas, on board the United States sloop-of-war Somers, by hanging three of the crew for mutiny.

(c) Act of 24th September, 1789, c. 20, sec. 34.

(d) This provision was inapplicable to the practice of the national courts, and only furnishes a rule to guide them in the formation of their judgments. In the case of Swift v. Tyson, 16 Peters, 1, it was decided that the statute only extended to the statutes and permanent local usages of a state, and the construction thereof adopted by the local tribunals, and to rights and titles to real estates, and to other matters immovable and intra-territorial in their nature and character. It did not extend to contracts, or other instruments of a commercial nature.

(e) Ch. 36, sec. 2.

(a) The act of Congress of May 19, 1828, c. 68, rendered the forms of mesne process, except the style and the forms and modes of proceeding in the federal courts

1Infra, 342, n. 1.

2Rules of Decision. — The Supreme Court is bound by the decision of a state court, in a case not re-examinable by the

former, that a tax is valid under the state constitution, Provident Institution v. Massachusetts, 6 Wall. 611; Hamilton Co. v. Massachusetts, ib. 632; see Ban-

(x) The Federal courts follow the decisions of the highest court of a State in questions concerning merely the constitution and laws of that State; or where the

course of those decisions, whether founded on statute or not, have become rules of property within the State; also in regard to rules of evidence in actions at law; and

visions, the court declared, in the case last referred to, that the remedies in the federal courts, at common law and in equity, were

in those states admitted into the Union since September 29, 1789, conformable to the supreme courts of law and equity in those states; and declared that writs of execution and other final process in the federal courts should, except as to style, be the same in each state as were then (May, 1828) used in the courts of such states, and with power in the federal courts, in their discretion, to alter their final process so far as to conform it to the future changes in that process in the state courts. The practice of the supreme courts of the state in use in September, 1789, was adopted, subject to alterations, by the federal courts. 1 Paine, 428, 429; Wayman v. Southard, 10 Wheaton, 1, 31, 32, 50; Bank of the United States v. Halstead, 10 Wheaton, 51; 1 Peters C. C. 1; Beers v. Haughton, 9 Peters, 329, 359-361. These modes and forms of proceeding remain unaffected by subsequent state regulations on the subject, for the act of Congress did not adopt prospectively such alterations as the states might afterwards make. Lane v. Townsend, Ware, 286; Springer v. Foster, 1 Story, 601. Such parts only of the laws of a state as are applicable to the Courts of the United States are adopted by the Process Act of Congress. A penalty is not adopted, being one given against a sheriff in default. Gwin v. Breedlove, 2 How. 29. Mr. Justice Story doubted

dall v. Brigham, 7 Wall. 523; and it has said that it would follow, in cases arising in different states, the interpretations of similar statutes by the respective state courts, although inconsistent with each other, Christy v. Pridgeon, 4 Wall. 196; [Erie Railway Co. v. Pennsylvania, 21 Wall. 492, 497;] and that when the highest court of a state reverses its former decisions, the Supreme Court would follow the latest settled adjudications, Leffingwell v. Warren, 2 Black, 599; Blossburg & Corning R. R. v. Tioga R. R., 5 Blatchf. 387; Smith v. Shriver, 3 Wall. Jr. 219.

But it declined to follow the latest when contracts had been made on the strength of earlier decisions the other way, which agreed with the opinion of the Supreme Court as well as with that of sixteen state courts, post, 419, n. 1.; Gelpeke v. City of Dubuque, 1 Wall. 175 (see Riggs v. Johnson County, 6 Wall. 166); and at last, in Butz v. Muscatine, 8 Wall. 575, the Supreme Court overruled a construction of a state law by the state courts, although there were no state decisions in accordance with their view: post, 419, n. 1; and it was said to be immaterial

as to the common law of the State, and its local laws and customs, when established by repeated decisions. Conn. Mut. Life Ins. Co. v. Cushman, 108 U. S. 51; Bucher v. Cheshire R. Co., 125 U. S. 555; Detroit v. Osborne, 135 U. S. 492; St. Louis v. Rutz, 138 U. S. 226, 242; Snell v. Chicago, 152 U. S. 191; Israel v. Arthur, id. 355; Michigan v. Flint, &c. R. Co., id. 363; Hazard v. Vermont & C. R. Co., 17 Fed. Rep. 753; Myers v. Reed, id. 401; Cleaver v. Traders' Ins. Co., 40 id. 711; Ames v. Union Pac. Ry. Co., 64 id. 165. Substantially conclusive effect is

given to the State decisions upon the construction of State statutes as affecting title to real estate within the State. Gormley v. Clark, 134 U. S. 338, 348; Lauriat v. Stratton, 11 Fed. Rep. 107; Edwards v. Davenport, 20 id. 756. So as to the organization of corporations. Mooney v. Humphrey, 12 Fed. Rep. 612. And of the powers of a State's political and municipal organizations. Claiborne County v. Brooks, 111 U. S. 400; Norton v. Shelby County, 118 U. S. 425; Meriwether v. Muhlenburg County Court, 120 U. S. 354. Rulings of the State courts

to be, not according to the practice of state courts, "but according to the principles of common law and equity, as distinguished and

whether Congress possessed constitutional authority to adopt, prospectively, state legislation on any given subject. 3 Sumner, 369. When, therefore, the State of Tennessee, by act, in 1820, allowed lands sold on execution to be redeemed on certain terms, it was held that lands thereafter sold on execution under federal process were not redeemable under the provisions of the statute, for state legislation cannot interfere with the process of the federal courts. Polk v. Douglass, 6 Yerger, 209; Ross v. Duval, 13 Peters, 45, S. P. The federal courts, follow the decisions of the state courts on the construction of state laws, unless they come in conflict with the Constitution or laws of the United States. 10 Wheaton, 159; 1 Paine, 564. They follow, also, those statutes of the several states which prescribe rules of evidence in civil cases, in trials at common law. M'Neil v. Holbrook, 12 Peters, 84. The state laws which are made rules of decision in the federal courts are those which apply to rights of person and property. United States v. Wonson, 1 Gallison, 18; Mayer v. Foulkrod, 4 Wash. 349. See also infra, iv. 278, note. State laws limiting actions and executions on judgments are

whether the case came there from the Supreme Court of the state or from the Circuit Court. [So by a decision that a state law has not been passed in accordance with the state constitution. Town of South Ottawa v. Perkins, 94 U. S. 260; Post v. Supervisors, 105 U. S. 667. So, generally, by construction of state constitutions and statutes. Fairfield v. County of Gallatin, 100 U. S. 47; Davie v. Briggs, 97 U. S. 628 (St. of Lim.). The Supreme Court follows the law as declared by the state court at the time when the rights accrued. Taylor v. Ypsilanti, 105 U. S. 60. — B.]

When the question is to be determined by common-law rules only, the decisions of the state courts are not binding: as, with regard to the construction of a deed, Foxcroft v. Mallett, 4 How. 353; or to that of a private act, Williamson v. Berry, 8 How. 495; or as to liability for a nuisance, Chicago v. Robbins, 2 Black, 418; or on a question of equity law, Neves v. Scott, 13 How. 268; infra. See further, Gloucester Ins. Co. v. Younger, 2 Curt. 322. [Federal courts are not bound by state decisions on questions depending upon commercial law or upon general common-law principles. Oates v. National

upon questions of commercial or general law are not binding upon the Federal courts. See Bucher v. Cheshire R. Co., 125 U. S. 555, 583; Pleasant Township v. Etna Life Ins. Co., 138 U. S. 67; Western U. T. Co. v. Cook, 61 Fed. Rep. 624; Cairo &c. Ry. Co. v. Brevoort, 62 id. 129; Forepaugh v. Delaware, &c. R. Co., 46 Legal Int. 507; 24 W. N. C. 385. Thus, the decision of the highest State court controls the Federal courts upon the construction and effect of a State statute regulating assignments for creditors: Union Nat. Bank v. Kansas City Bank, 136 U. S. 223; or upon the statute of

frauds. Moses v. Nat. Bank, 149 U. S. 298. As to the effect of other State decisions relating to State statutes, see also United States v. Stanford, 69 Fed. Rep. 25; In re The Jarnecke Ditch, id. 161; Central Trust Co. v. East Tenn. &c. Ry. Co., id. 353; Barber v. Pittsburgh, &c. Ry. Co., id. 501; Sanford v. Poe, id. 546. A Federal court is not bound by a State decision as to what are public uses under the right of eminent domain: Bradley v. Fallbrook Ir. District, 68 Fed. Rep. 948; Marchant v. Penn. R. Co., 153 U. S. 380; or on any matters of general law, Harrison v. Hartford F. Ins. Co., 67 Fed. Rep. 298. A single

defined in that country, from which we derived our knowledge of those principles." (b)

rules of property, and become rules of decision in the federal courts. Ross v. Duval, 13 Peters, 45. By act of Congress of August 23, 1842, c. 188, the Supreme Court has power to prescribe, regulate, and alter the forms of process in the district and circuit courts, the forms of pleading in suits at common law, or in admiralty, or in equity, and of taking testimony and of entering decrees, and generally to regulate the whole practice of the courts. The rules of practice in admiralty cases, on the instance side of the District Court, were established in pursuance of the act of 23d August, 1842, c. 188. See those rules in 3 N. Y. Legal Observer, 357. With respect to the common law as a part of federal jurisprudence, the Supreme Court declared, in Wheaton v. Donaldson, 8 Peters, 658, that there could not be a common law of the United States. Each of the states has its local usages, customs, and common law. There was no principle which pervades the Union, and has the authority of law, that is not embodied in the Constitution and laws of the Union. The common law could be made a part of our federal system only by legislative adoption, and when a common-law right is asserted, the courts look to the state in which the controversy originated.

(b) Though there be no equity state courts, that does not prevent the exercise of equity jurisdiction in the courts of the United States; they adopt and follow the equity jurisprudence existing in England. The District Court of Louisiana has accordingly equity powers, and it is bound to proceed in equity causes according to the principles, rules, and usages which belong to the courts of equity, as contradistinguished from courts of common law. Gaines v. Relf, 15 Peters, 9; Lorman v. Clarke, 2 McLean, 568, 571.

Bank, 100 U. S. 239; Railroad Co. v. National Bank, 102 U. S. 14. In Town of Pana v. Bowler, 107 U. S. 529, the Supreme Court, while assuming that they would be bound to follow the decision of the Illinois court, that certain bonds issued under the law of that state were irregularly issued and void, yet held that they were not bound to follow it to the extent of holding them void as against a bona fide purchaser for value, a question

of commercial law being here involved. Myrick v. Michigan Central R. R. Co., 107 U. S. 102. United States courts recognize and protect rights given by state statutes. Dennick v. Railroad Co., 103 U. S. 11; Brine v. Insurance Co., 96 U. S. 627; Orvis v. Powell, 98 U. S. 176. Where the United States courts have jurisdiction, they exercise an independent judgment, unless some rule has become established by state decisions. Hence the

decision in the State court, if it is not conclusive there, as upon the construction of a will in an ejectment suit, is not conclusive upon a Federal court, though entitled to weight as a precedent. Barber v. Pittsburgh, &c. Ry. Co., 69 id. 501. And if a rule of property is unsettled by later discisions of the State court, the Federal court is not fettered, but may use its own judgment. Chisolm v. Caines, 67 id. 285; National F. & P. Works v. Oconto Water Co., 68 id. 1006.

If a State constitution or statute, as interpreted and applied by the highest court of the State, does not violate any right secured by the Federal Constitution, that construction will be accepted as conclusive upon the question when carried to the U. S. Supreme Court. U. S. Rev. Stats. § 721; Louisville, N. O. & T. Ry. Co. v. Mississippi, 133, U. S. 590; Baltimore Traction Co. v. Baltimore Belt R. Co., 151 U. S. 137; Southern Pacific R. Co. v. Orton, 32 Fed. Rep. 457; Beebe v.

In this view of the subject, the common law may be cultivated as part of the jurisprudence of the United States. In its im-

Supreme Court refused to follow a state decision construing a statute which was not rendered until after judgment was given in the Circuit Court. Burgess v. Seligman, 107 U. S. 20. See cases cited. — B.]

Rules of Practice under the former Acts.

— That state laws cannot proprio vigore affect the process of the courts of the United States, see further, The Mayor v. Lord, 9 Wall. 409; Catherwood v. Gapete, 2 Curt. 94; Matter of Hopkins, ib. 567; Matter of Freeman, ib. 491; Duncan v. Darst, 1 How. 301; New England Screw Co. v. Bliven, 3 Blatchf. 240; Pomeroy v. N. Y. & N. H. R. R. Co., ib. 120; Goodyear v. Providence Rubber Co., 2 Fisher, 499; ante, 248, n. 1. But a law allowing a party to a suit to testify on his own behalf is a rule of decision and not of practice, and must be followed. Dibblee v. Furniss, 4 Blatchf. 262. On the other hand, the statute of limitations of a state does not apply to an action for the infringement of a patent, Collins v. Peebles, 2 Fisher, 541; Parker v. Hallock, ib. 543; contra, Parkes v. Hawk, ib. 58; Parker v. Hall, ib. 62; and state laws of set-off do not affect cases in the United States courts, Watkins v. United States, 9 Wall. 759, 765.

As to equity, see 346, note 1. The jurisdiction and rules of decision in equity

are the same in every state, for the reason stated in note (b); and it is no objection to the jurisdiction that there is a remedy under the local law. Dodge v. Woolsey, 18 How. 331, 347; Noonan v. Lee, 2 Black, 499; Barber v. Barber, 21 How. 582; Cropper v. Coburn, 2 Curt. 465; Hunt v. Danforth, ib. 592. But where there is no jurisdiction, according to the principles of the English Chancery (see last-cited cases), the objection is one by which the court is bound. Parker v. Winnipiseogee Lake Cotton & Woollen Co., 2 Black, 545; Wright v. Ellison, 1 Wall. 16, 22; Hipp v. Babin, 19 How. 271. And although by state laws there is no distinction between cases at law and in equity, and although the forms of proceedings and practice in the state courts have been adopted in the United States courts, if the plaintiff's claim be a legal one, he cannot have merely equitable relief. Bennett v. Butterworth, 11 How. 669; Jones v. McMasters, 20 How. 8; Shuford v. Cain, 1 Abb. U. S. 302. A decision of a state court involving only general principles of equity is not binding on the Supreme Court. Neves v. Scott, 13 How. 268.

Powers not judicial, exercised by the chancellor merely as the representative of the sovereign, and by virtue of the king's

Louisville, &c. R. Co., 39 id. 481; see also Carroll County v. Smith, 111 U. S. 556; Gage v. Pumpelly, 115 U. S. 454; Yick Wo v. Hopkins, 118 U. S. 356; Heaths. Wallace, 138 U. S. 573; McElvaine v. Brash, 142 U. S. 155. This rule applies even when a similar statute is differently construed in another State. Bauserman v. Blunt, 147 U. S. 647; May v. Tenney, 148 U. S. 60; Randolphs Quidnick Co., 135 U. S. 457. It applies conclusively to State statutes of limitations.

Bauserman v. Blunt, 147 U. S. 647; Balkam v. Woodstock Iron Co., 154 U. S. 177. It does not apply when the State judgment under review involves the question whether want of notice deprived a party of his property without due process of law. Scott v. McNeal, 154 U. S. 34. It applies even when the decision of the State court is of later date than that of the Federal court. Tomes v. Barney. 35 Fed. Rep. 112; Leighton v. Young, 52 id. 439.

proved condition in England, and especially in its improved and varied condition in this country, under the benign influence of an expanded commerce, of enlightened justice, of republican principles, and of sound philosophy, the common law has become a code of matured ethics and enlarged civil wisdom, admirably adapted to promote and secure the freedom and happiness of social life. It has proved to be a system replete with vigorous and healthy principles, eminently conducive to the growth of civil liberty; and it is in no instance disgraced by such a slavish political maxim as that with which the Institutes of Justinian are introduced. (c) It is the common jurisprudence of the United States, and was brought with them as {343} colonists from England, and established here, so far as it was adapted to our institutions and circumstances. It was claimed by the Congress of the united colonies, in 1774, as a branch of those "indubitable rights and liberties to which the respective colonies are entitled."(a) It fills up every interstice, and occupies every wide space which the statute law cannot occupy. Its principles

(c) Quod principi placuit, legis habet vigorem. Inst. 1, 2, 6.

(a) Declaration of Eights of October 14, 1774; Journals of Congress, i. 28.

prerogative as parens patrię, are not possessed by the circuit courts. Fontain v. Ravenel, 17 How. 369, 384.

The Practice Act of June 1, 1872, § 5, provides that the practice, pleadings, and forms and modes of proceeding in other than equity and admiralty causes in the circuit and district courts of the United States shall conform, as near as may be, to those existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, except that the rules of evidence under the laws of the United States and as practised in the courts thereof are not altered. Section 6 gives remedies by attachment or other process against the property of the defendant in common-law causes in the circuit and district courts similar to those given under state laws in the courts of the state where the United States court is held; and the circuit and district courts may from time to time, by

general rules, adopt such state laws as may be in force on the matter. There are like provisions as to execution, &c. There are many other important provisions, especially as to criminal pleading and practice. [The Practice Act of 1872 (Rev. St. § 914) does not abolish the distinction between legal and equitable remedies, even though the state law may have done so. La Mothe Manufacturing Co. v. National Tube Works Co., 15 Blatchf. 432. Van Arsden v. Morton, 99 U. S. 378; Thompson v. Railroad Companies, 6 Wall. 134. Nor does it extend to questions of evidence. Connecticut Mutual Life Ins. Co. v. Schaefer, 94 U. S. 457. And wherever Congress has provided a specific method of procedure, of course that governs. Easton v. Hodges, 7 Biss. 324; Sage v. Tanszky, 6 Cent. L. J. 7. For further limitations of the operation of the statute, see Newcomb v. Wood, 97 U. S. 581. — B.]

may be compared to the influence of the liberal arts and sciences; adversis perfugium ac solatium prębent; delectant domi non impediunt foris; pernoctant nobiscum, peregrinantur, rusticantur. To use the words of the learned jurist, to whom I have already alluded, (b) "We live in the midst of the common law, we inhale it at every breath, imbibe it at every pore; we meet with it when we wake and when we lay down to sleep, when we travel and when we stay at home; and it is interwoven with the very idiom that we speak; and we cannot learn another system of laws without learning, at the same time,

another language."

The jurisdiction of the federal courts ratione personarum, and depending on the relative character of the litigant parties, has been the subject of much judicial discussion. The Constitution gives jurisdiction to the federal courts of all suits between aliens and citizens, and between resident citizens of different states, (c) and we have a series of judicial decisions on that subject. If the case arises under the Constitution, laws, or treaties of the Union, it is immaterial who may be parties, for the subject-matter gives jurisdiction; and if it arises between aliens and citizens, or between citizens of different states, it is immaterial what may be the nature of the controversy, for the character of the parties gives jurisdiction.

(b) Du Ponceau on Jurisdiction, 91. See also 1 Story's Comm. on the Constitution, 140, 141; ii. 264-268. The learned commentator, in the volume last cited, ably, and, in my opinion, satisfactorily contends that the common law, in the absence of positive statute law, regulates, interprets, and controls the powers and duties of the court of impeachments under the Constitution of the United States; and though the common law cannot be the foundation of a jurisdiction not given by the Constitution and laws, that jurisdiction, when given, attaches, and is to be exercised according to the rules of the common law. Were it otherwise there would be nothing to exempt us from an absolute despotism of opinion and practice.1 (c) Lessee of Butler v. Farnsworth, 4 Wash. 101.

1 Professor Theodore W. Dwight, in an able article in 6 Am. Law Reg. N. S. 257, maintains the view that the Constitution only adopts impeachment as a mode of procedure, and that there can be no impeachment except for a violation of a law of Congress, or for the commission of a crime named in the Constitution. On another page (641) of the same volume

Mr. Justice Lawrence, of Ohio, presents the opposite view, which was acted upon, as is well known, in framing the articles against President Johnson. See points and authorities submitted by the same author, Johnson's Trial. See also the arguments of counsel in that case on the one side and the other.

3. Jurisdiction when an Alien is a Party. (x) — In Bingham v. Cabot, (d) the Supreme Court held, that it was necessary to set forth the citizenship of the respective {344} parties, or the alienage, when a foreigner was concerned, by positive averments, in order to bring the case within the jurisdiction of the Circuit Court; and that if there was not a sufficient allegation for that purpose on record, no jurisdiction of the suit would be sustained. The same doctrine was maintained in Turner v. Enrille, (a) and in Turner v. The Bank of North America; (b) and it was declared, that the Circuit Court was a court of limited jurisdiction, and had cognizance only of a few cases specially circumstanced, and that the fair presumption was, that a cause was without its jurisdiction till the contrary appeared. Upon that principle the rule was founded, making it necessary to set forth, upon the record of the Circuit Court, the facts or circumstances which gave jurisdiction, either expressly or in such manner as to render them certain by legal intendment. It is necessary, therefore, where the defendant appears to be a citizen of one state, to show, by averment, that the plaintiff is a citizen of some other state, or an alien; or, if the suit be upon a promissory note, by the indorsee, to show that the original payee was so; for it is his description, as well as that of the indorsee, which gives the jurisdiction. But an alien cannot sue a citizen in the Circuit Court of the United States, if the latter be at the time a resident in a foreign country, notwithstanding he has property in the district which might be attached. No compulsory process, under the Judiciary Act of 1789, lies against a person who is not at the time an inhabitant of, or is not found in the district in which the process issues. This goes to exclude from the federal courts the proceeding by foreign attachment under the local laws of the states. (c)

(d) 3 Dallas, 382. (a) 4 Dallas, 7. (b) 4 Dallas, 8. (c) Picquet B. Swan, 5 Mason, 35; Toland v. Sprague, 12 Peters, 300.

(x) The description of the plaintiff

throughout the record as a "citizen of

' London, England," is insufficient as an

allegation of alienage. Stuart v. Easton,

156 U. S 46.

See supra 302, notes. The alienage or citizenship of parties must distinctly and

positively appear in the pleadings or other parts of the record, and the absence of jurisdiction in the circuit court will be noticed by the Supreme Court, though not suggested by the parties. An averment that parties "reside" in a certain State, or that a partnership is "of" that State,

4. Jurisdiction between Citizens of Different States. — The Judiciary Act of 1789, sec. 11, gives jurisdiction to the Circuit Court when an alien is a party; and it was decided in Mossman v. Higginson, (d) that the jurisdiction was confined to the case of suits between citizens and foreigners, and did not extend to suits between alien and alien; and {345} that if it appeared on record that the one party was an alien, it must likewise appear affirmatively that the other party was a citizen. So, again, in Course v. Stead, (a)l it was decided to the same effect. The principle is, that it must appear upon the record, that the character of the parties supports the jurisdiction; and the points in that

(d) 4 Dallas, 12.

(a) 4 Dallas, 22. The omission of the above averments, or any other requisite to give jurisdiction, is matter of substance, and not cured by verdict, nor amendable after verdict. 1 Paine, 486, 594; Jackson v. Twentyman, 2 Peters, 136.

1 Prentiss v. Brennan, 2 Blatchf. 162; Bateau v. Bernard, 3 Blatchf. 244. So the court has no jurisdiction when all the parties, as well plaintiff's as defendants, are citizens of states other than that in which the suit is brought. Kelly v. Harding, 5 Blatchf. 502. See Merserole v. Union Paper Collar Co., 6 Blatchf. 356. And when some of the parties to a bill for partition, being citizens of the District of Columbia, made a merely colorable conveyance to a citizen of a state, it was held not to give the court jurisdiction. Barney v. Baltimore, 6 Wall. 280. See Jones v.

League, 18 How. 76; Smith v. Kernochen, 7 How. 198; Starling v. Hawks, 5 McL. 318. [See Williams v. Nottawa, 104 U. S. 209; Hawes v. Oakland, ib. 450.] But it was admitted that if the conveyance had really transferred the interest, although made for the avowed purpose of enabling the court to entertain jurisdiction of the case, it would have accomplished that purpose, 6 Wall. 288; and it was so held in Osborne v. Brooklyn City R. R., 5 Blatchf. 366; Newby v. Oregon C. R. Co., 3 Am. Law Times, 127.

or there "does business," is insufficient to show citizenship in such State. Grace v. American Central Ins. Co., 109 U. S. 278; Bors v. Preston, 111 U. S. 252; Mansfield, C. & L. M. Ry. Co. v. Swan, id. 379; Continental Ins. Co. v. Rhoads, 119 U. S. 237; Cameron v. Hodges, 127 U. S. 322; Denny v. Pironi, 141 U. S. 121; Wolfe v. Hartford Life Ins. Co., 148 U. S. 389; Home v. George H. Hammond Co., 155 U. S. 393. So, in the Federal Courts, where a corporation is regarded as a citizen of the State by which it is created, it is not sufficient to aver that it is "citizen," or "is doing business in" a partic-

ular State. Lafayette Ins. Co. v. French, 18 How. 404; Lonergan v. Illinois Cent. R. Co., 55 Fed. Rep. 550; Muller v. Dows, 94 U. S. 444; National S. S. Co. v. Tugman, 106 U. S. 118; Kansas Pac. Ry. Co. v. Atchison, 112 U. S. 414; Brock D. North Western Fuel Co., 130 U. S. 341; Everhart v. Huntsville College, 120 U. S. 223; Timmons v. Elyton Land Co., 139 U. S. 378; 36 Cent. L. J. 333.

Federal suits involving the validity of State taxes do not depend upon the citizenship of parties. United States Express Co. v. Allen, 39 Fed. Rep. 712.

case were reasserted in Montalet v. Murray, (b) and in Hodgson v. Bowerbank, (c) and in Sullivan v. The Fulton Steamboat Company. (d) In Maxfield v. Levy, (e) the question of jurisdiction, arising from the character of the parties, was discussed in the Circuit Court in Pennsylvania, and the court animadverted severely upon an attempt to create a jurisdiction by fraud, contrary to the policy of the Constitution and the law. The suit was an ejectment between citizens of the same state, to try title to land; and, to give jurisdiction to the Circuit Court, a deed was given, collusively, and without any consideration, to a citizen of another state, for the sole purpose of making him a nominal plaintiff, in order to give the federal court jurisdiction. The court dismissed the suit, and observed, that the Constitution and laws of the United States had been anxious to define, by precise boundaries, and preserve with great caution, the line between the judicial authority of the Union and that of the individual states. No contrivance to defeat the law of the land, and create jurisdiction by fraud, could be tolerated. (f) But if a citizen of one state thinks proper to change his domicile, and remove with his family to another state, not colorably, but permanently, and with a bona fide intention to reside there, {346} even though his object was to avail himself of the jurisdiction of the federal courts, he becomes instantly a citizen of the other state, and may sue as such in the courts of the United States. (a)

The doctrine in the original case of Bingham v. Cabot was again

(b) 4 Cranch, 461. (c) 5 Cranch, 303.

(d) 6 Wheaton, 450; Dodge v. Perkins, 4 Mason, 435, S. P.

(e) 4 Dallas, 330. This case was repudiated by Mr. Justice Story, in Briggs v. French, 2 Sumner, 257, as being erroneously decided.

(f) The same doctrine was held by Judge Washington, in Hurst v. McNeil, 1 Wash. 70, 83. But in Briggs v. French, 2 Sumner, 251, it was pointedly condemned; and the judge held, that a conveyance of land by a citizen of one state to a citizen of another, for the purpose of enabling the latter to maintain a suit on it in the courts of the United States, vested a legal title, and a stranger not claiming under either of the parties had no right to inquire into the motive of the conveyance.

(a) Lessee of Cooper v. Galbraith, 3 Wash. 546; Case v. Clark, 5 Mason, 70; Catlett v. Pacific Ins. Co., 1 Paine, 594. In Briggs v. French, 2 Sumner, 251, it was held, that it was sufficient to give jurisdiction to the federal courts, that a citizen of one state had really, and not merely nominally, removed from one state to another, though his motive might have been to prosecute a suit in the courts of the United States. It was sufficient if the plaintiff was in fact a citizen of one state and the defendant of another. The motive of the removal was not to be inquired into.

confirmed in Abercrombie v. Dupuis, (b) with some symptoms of reluctance; and it would seem that the court was not entirely satisfied with the precise limits in which their jurisdiction had been circumscribed and embarrassed by their predecessors. But in Strawbridge v. Curtiss, (c) the limitation of the federal jurisdiction was considered as being still more close and precise. The Supreme Court declared, that where the interest was joint, and two or more persons were concerned in that interest, as joint plaintiffs or joint defendants, each of them must be competent to sue, or liable to be sued, in the federal courts; and the suit was dismissed in that case, because some of the plaintiffs and defendants were citizens of the same state. (d)1 The next case that arose on this subject was whether a corporation was a citizen within the meaning of the Constitution, and could sue in the federal courts in consequence of its legal character; and it was decided in the cases of The Hope Insurance Company v. Board-

(b) 1 Cranch, 343. (c) 3 Cranch, 267.

(d) But the Circuit Court of the United States is not deprived of its jurisdiction arising from the character of the party, by joining with an alien or citizen of another state a mere nominal party, who does not possess the requisite character. 5 Cranch, 303; 8 Wheaton, 451; 1 Paine, 410. It has likewise been adjudged, that as the courts of Louisiana do not proceed according to the rules of the common law, but of the civil law, a suit may be brought in the federal courts by a resident alien against one or two obligors, bound severally as well as jointly, who reside in Louisiana, though the other obligor resides in another state. The rule in chancery and in the civil law is, that if the court can make a decree according to justice and equity between the parties before them, that decree shall not be withheld because a party out of its jurisdiction is not made a defendant, although he must have been united in the suit had he been within the reach of the process of the court. This was the principle of that decision. Breedlove v. Nicolet, 7 Peters, 413. See also Harrison v. Urann, 1 Story, 64. And now, by act of Congress of February 28, 1839, c. 36, if there be several defendants, and any one or more of them is not an inhabitant of, or not found in, the district where the suit is brought, and does not voluntarily appear, the court may entertain jurisdiction, and proceed against the parties properly before it.

1 The act mentioned at the end of note (d) does not enable the Circuit Court to make a decree in a suit in the absence of a party whose rights must necessarily be affected by such decree. On the other hand, it had been determined before the act was passed, that the non-joinder, for want of jurisdiction, of parties merely formal, or necessary, but without whom

the court could proceed to a decree and do complete and final justice to the parties before it, was not fatal. So the act seems to be hardly more than declaratory in equity cases. Barney v. Baltimore, 6 Wall. 280; Shields v. Barrow, 17 How. 130; Coiron v. Millaudon, 19 How. 113. See also Drake v. Goodridge, 6 Blatchf. 151.

man, and of The Bank of the United States v. Deveaux, (e) that a corporation aggregate was not, in its corporate capacity, a citizen, and that its right to litigate in the federal courts depended upon the character of {347} the individuals who compose the body politic, and which character must appear by proper averments upon the record. (a)l But a corporation aggregate, composed of citizens of one state, may sue a citizen of another state in the Circuit Court of the United States. If any of the stockholders are citizens of the same state with the defendant, the federal courts have no jurisdiction. And the rule relative to suits originally instituted in the courts of the United States, requiring all the individuals composing the respective parties to possess the requisite character to give the court jurisdiction, applies equally to suits removed from the state courts. (b)

(e) 5 Cranch, 57, 61; Bank of Augusta v. Earle, 13 Peters, 519; Wood v. Hartford Fire Insurance Co., 13 Conn. 202, S. P.

(a) In Breithaupt v. The Bank of Georgia, 1 Peters, 238, it was there held that a bill, to give jurisdiction, must state that the stockholders were citizens of Georgia.

(b) Ward v. Arredondo, 1 Paine, 410; Bank of Cumberland v. Willis, 3 Sumner, 472. But the very inconvenient and narrow doctrine contained in the cases of Strawbridge v. Curtiss, 3 Cranch, 367, Bank of the United States v. Deveaux, 5 Cranch, 84, and Comm. & R. R. Bank of Vicksburg v. Slocomb, 14 Peters, 60, was reviewed and overruled in the Louisville Railroad Co. v. Letson, in 2 How. 497. It was there held, that a corporation created and doing business in a state was an inhabitant of the state, capable of being treated as a citizen, for all purposes of suing and being sued, although some of the members of the corporation were not citizens of the state in which the suit was brought, and although the state itself might be a member of the corporation. This was a very important and salutary decision, and reinstated the federal courts in their essential jurisdiction in cases of suits between citizens of diiferent states. The act of Congress of 28th February, 1839, gave aid to this decision, it being considered in its language and construction as an enlargement of jurisdiction in respect to the character of the parties.

1 The rule has now taken the form of a legal fiction. For while a suit by or against a corporation is considered to be brought by or against its members, they are conclusively presumed, for purposes of jurisdiction, to be citizens of the state in which the body was incorporated. Railway Co. v. Whitton, 13 Wall. 270, 284; Ohio & Mississippi R. R. v. Wheeler, 1 Black, 286; Covington Drawbridge Co. v. Shepherd, 20 How. 227; Marshall v. Balt. & Ohio R. R., 16 How. 314; Lafayette Ins. Co. v. French, 18 How. 404; Insurance

Co. v. Francis, 11 Wall. 210; Pennsylvania v. Quicksilver Co., 10 Wall. 553; Express Co. v. Kountze, 8 Wall. 342; [Muller v. Dows, 94 U. S. 444.]

On this principle it is held that a suit may be brought by a national bank organized and located in one state against a citizen of another in the Circuit Court sitting in the latter state. Manufacturers' N. Bank v. Baack, 2 Abbott, U. S. 232, explaining a dictum in Kennedy v. Gibson, 8 Wall. 498, 506.

With respect to the question on the peculiar right of the Bank of the United States to sue in the federal courts, it was decided, in reference to the first Bank of the United States, that no right was conferred on that bank by its act of incorporation to sue in those courts. It had only the ordinary corporate capacity to sue and be sued; and being an invisible, artificial being, a mere legal entity, and not a citizen, its right to sue must depend upon the character of the individuals of which it is composed. The Constitution of the United States supposed apprehensions might exist, that the tribunals of the states would not administer justice as impartially as those of the nation, to parties of every description, and, therefore, it established national tribunals for the decision of controversies between aliens and a citizen, and between citizens of different states. The persons whom a corporation represents may be aliens or citizens, and the controversy is between persons suing by their corporate name for a corporate right, and the individual defendant. Where the members of the corporation are aliens or citizens of a different state from the opposite party, they come {348} within the reason and terms of the jurisdiction of the federal courts. The court can look beyond the corporate name, and notice the character of these members, who are not considered, to every intent, as placed out of view, and merged in the corporation. Incorporated aliens may sue a citizen, or the incorporated citizens of one state may sue a citizen of another state, in the federal courts, by their corporate name, and the controversy is substantially between aliens and a citizen, or between the citizens of one state and those of another. In that case, the president, directors, and company of the Bank of the United States averred, that they were citizens of Pennsylvania, and that the defendants were citizens of Georgia; and this averment, not traversed or denied, was sufficient to sustain the suit in the Circuit Court. In suits by the Bank of the United States, of 1816, such an averment is not necessary, because the act incorporating the bank (a) authorizes it to sue and be sued in the Circuit Court of the United States, as well as in the state courts. Without such an express provision, it would have been difficult for the Bank of the United States ever to have sued in the federal courts, if the fact of citizenship of all the members was to be scrutinized, for there were probably few or no states which had not some stock-

(a) Act of Congress April 10, 1816, sec. 7.

holder of the bank a resident citizen. (b) It was indispensable for Congress to provide specially for a jurisdiction over suits in which the bank was concerned, or no jurisdiction could well have been sustained. It was truly observed, by the Supreme Court, that if the Bank of the United States could not sue a person who was a citizen of the same state with any one of its members, in the circuit courts, this disability would defeat the power.

A trustee who holds the legal interest is competent to {349} sue in right of his own character as a citizen or alien, as the case may be, in the federal courts, and without reference to the character or domicile of his cestui que trust, unless he was created trustee for the fraudulent purpose of giving jurisdiction. (a) This rule equally applies to executors and administrators, who are considered as the real parties in interest; but it does not apply to the case of a general assignee of an insolvent debtor, and he cannot sue in the federal courts, if his assignor could not have sued there. The 11th section of the Judiciary Act will not permit jurisdiction to vest by the assignment of a chose in action (cases of foreign bills of exchange excepted), unless the original holder was entitled to sue; and whether the assignment was made by the act of the party, or by operations of law, makes no difference in the case. An executor or administrator is not an assignee, within the meaning of the 11th section of the Judiciary Act. (b)1

(b) Osborn v. United States Bank, 9 Wheaton, 738; United States Bank v. Planters' Bank, 9 Wheaton, 904.

(a) Chappedelaine v. Dechenaux, 4 Cranch, 306, 308; Brown v. Strode, 5 Cranch, 303. See also 5 Cranch, 91, and Childress v. Emory, 8 Wheaton, 642. If the nominal plaintiff and the real defendant be citizens of the state, yet if the party for whose use the suit was brought was a citizen of another state, the Circuit Court of the United States has jurisdiction. Brown v. Strode, supra; McNutt v. Bland, 2 How. 9.

(b) Sere v. Pitot, 6 Cranch, 332; Mayer v. Foulkrod, 4 Wash. 349. But it is adjudged that a note payable to A, or bearer, may be sued in the federal courts, in his own name, and that the 11th section of the Judiciary Act does not apply. Bullard v. Bell, 1 Mason, 243; Halsted v. Lyon, 2 McLean, 226. So the holder of a negotiable note, payable to the maker's own order, and indorsed, may sue the maker

1What is a chose in action within the section? The act speaks of "any suit to recover the contents of any promissory note or other chose in action in favor of an assignee." In Bushnell v. Kennedy, 9

Wall. 387, 393, it is said to be hard to reconcile Sere v. Pitot with later judgments, and the Chief Justice inclines to the view that the restriction of the 11th section applies only to rights of action

With respect to the District of Columbia, and to the territorial districts of the United States, they are not states, within the sense of the Constitution and of the Judiciary Act, so as to enable a citizen thereof to sue a citizen of one of the states in the federal courts. However extraordinary it might seem to be, that the courts of the United States, which were open to aliens, and to the citizens of every state, should be closed upon the inhabitants of those districts, on the construction that they were not citizens of a state, yet, as the court observed, this

in the federal courts, though the holder be a citizen of another state; for the right passes not by assignment, but to bearer by delivery. Towne v. Smith, 9 Law Rep. 12; [1 Woodb. & M. 115.] [By statute March 3, 1875, 18 St. at L. 470, the exception in the original act is made to apply to "promissory notes negotiable by the law merchant and bills of exchange." Since this statute, an assignee may sue on a claim not founded in contract without regard to the citizenship of his assignor. Van Bokkelen v. Cook, 5 Saw. 587. — B.]

founded on contracts which contain within themselves some promise or duty to be performed, and not to those arising out of some wrongful act or neglect of duty to which the law attaches damages (citing Barney v. Globe Bank, 2 Am. Law Reg. N. S. 229). He even intimates that the restriction might well have been limited to written promises to pay money, upon which an assignee could sue without using the name of the assignor. [In Corbin v. County of Black Hawk, 105 U. S. 659, it was held that a suit to compel specific performance of a contract fell within the corresponding section of the Revised Statutes (§ 629). — B.]

A case not within this clause is replevin brought to recover bank-notes in specie, which lies, if the plaintiff has the requisite citizenship, although the assignor is of the same state with the defendant. Deshler v. Dodge, 16 How. 622. So a suit to recover possession of mortgaged premises; but not one to enforce the payment of the debt by sale or decree against the mortgagor. Ib. 631, citing Smith v. Kernochen, 7 How. 198; Sheldon v. Sill, 8 How. 441. See further, Weems v. George, 13 How. 190.

As to parties, the general rule is that to

be a party for the purpose of jurisdiction, it is necessary to be one upon record, and it may be doubted whether the exception mentioned above in note (a) extends beyond the case of bonds given to an officer in his official capacity. The decided cases are of that nature. Hull v. Hutchinson, 14 How. 586.

An equitable assignee of a claim to an account is within the clause. Wilkinson v. Wilkinson, 2 Curt. 582; ante, 302.

In addition to the cases given in note (b) above, the restriction does not apply to bonds payable in blank or to bearer. White v. Vermont & Mass. R. R., 21 How. 575; Thomson v. Lee County, 3 Wall. 327. [Town of Thompson v. Perrine, 106 U. S. 589; Township of Chickaming v. Carpenter, ib. 663; City of Lexington v. Butler, 14 Wall. 282.] And an indorsee may sue his immediate indorser, although he could not have maintained an action against the maker. Post, 350; Coffee v. Planters' Bank of Tennessee, 13 How. 183.

The assignee of a chose in action must show affirmatively that the action might have been maintained by the assignor if no assignment had been made. Bradley v. Rhines, 8 Wall. 393.

was a subject for legislative, and not for judicial, consideration. (c)2

{350} If the jurisdiction of the Circuit Court between citizens of different states has once vested, it is not devested by a subsequent change of domicile of one of the parties, and his removal into the same state with the adverse party, pendente lite. (a) The jurisdiction depends upon the state of things at the time the action was brought. So, an indorsee of a note, who resides in one state, may sue his immediate indorser, who resides in another state, though that immediate indorser and the maker be residents of the same state. The indorsement is a new contract between the parties to the record, quite distinct from the original note. (b)

5. Jurisdiction when a State is interested. — The case of Osborn v. The Bank of the United States (c) brought into view important principles touching the constitutional jurisdiction of the federal courts, where a state claimed to be essentially a party. The court decided, that the circuit courts had lawful jurisdiction, under the act of Congress incorporating the national bank, of a bill in equity brought by the bank for the purpose of protecting it in the exercise of its franchises, which were threatened to be invaded under a law of the State of Ohio; and that as the state itself could not be made a party defendant, the suit might be maintained against the officers and agents of the state who were intrusted with the execution of such laws.

As the amendment to the Constitution prohibited a state to be made a party defendant by individuals of other states, the court felt the pressure and difficulty of the objection, that the state of Ohio was substantially a party defendant, inasmuch as the process of the court in the suit acted directly upon the state, by restraining its officers from executing the law of the state. The direct

(c) The term state, in the sense of the Constitution, applies only to the members of the American confederacy, and does not extend to a territory of the United States. Seton v. Hanham, B. M. Charlton, (Ga.) 354; Hepburn v. Ellzey, 2 Cranch, 445; Corporation of New Orleans v. Winter, 1 Wheaton, 91; [ante, 326, n. 1.]

(a) Morgan v. Morgan, 2 Wheaton, 290; Clarke v. Matthewson, 12 Peters, 164.

(b) Young v. Bryan, 6 Wheaton, 146; Mollan v. Torrance, 9 Wheaton, 537; [Coffee v. Planters' Bank of Tennessee, 13 How. 183.]

(c) 9 Wheaton, 738.

2 Barney v. Baltimore, 6 Wall. 280; Iowa, 12 How. 1; Scott v. Jones, 5 How. ante, 345, n. 1. Compare Miners' Bank v. 343, cited ante, 326, n. 1.

interest of the state in the suit was admitted, but the objection, if it were valid, would go, in its consequences, completely to destroy the powers of {351} the Union. If the federal courts had no jurisdiction, then the agents of a state, under an unconstitutional law of the state, might arrest the execution of any law of the United States. A state might impose a fine or penalty on any person employed in the execution of any law of the Union, and levy it, by a ministerial officer, without the sanction even of its own courts. All the various public officers of the United States, such as the carrier of the mail, the collector of the revenue, and the marshal of the district, might be inhibited, under ruinous penalties, from the performance of their respective duties. And if the courts of the United States cannot rightfully protect the agents who execute every law authorized by the Constitution, from the direct action of state agents in the collection of penalties, they could not rightfully protect those who execute any law. The court insisted, that there was no such deplorable failure of jurisdiction, and that the federal judiciary might rightfully protect those employed in carrying into execution the laws of the Union from the attempts of a particular state, by its agents, to resist the execution of those laws. It may use preventive proceedings, by injunction or otherwise, against the agents or officers of the state, and authorize proceedings against the very property seized by the agent; and the court concluded, that a suit brought against individuals, for any cause whatever, was not a suit against a state, in the sense of the Constitution. The Constitution contemplated a distinction between cases in which a state was interested, and those in which it was a party; and to be a party for the purpose of jurisdiction, it is necessary to be one upon record. (x)

(x) The rule that a government cannot be sued without its consent applies only to suits of individuals, and not to suits between different governments. United States v. Texas, 143 U. S. 621; see 18 Am. L. Rev. 814. Jurisdiction conferred by statute upon the Federal courts over certain cases against the United States includes the power to render judgment against the United States. United States v. Davis, 12 U. S. App. 47. A State can-

not be sued, without its consent, in a Federal circuit court by one of its citizens on the ground that the suit arises under the U. S. Constitution and laws. Hans v. Louisiana, 134 U. S. 1; McGahey v. Virginia, 135 U. S. 662; Pennoyer v. McConnaughy, 140 U. S. 1.

The Eleventh Amendment, providing that "the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or

The Constitution only intended a party on record, and to be shown in the first instance by the simple inspection of the record, and that is what is intended in all cases where jurisdiction depends upon the party. (a)1

(a) In the case of McNutt v. Bland, 2 How. 9, it was decided that a citizen of another state might sue a citizen of Mississippi, in the Circuit Court of the United States, though he sued in the name of the nominal plaintiff or trustee, who was also a citizen of Mississippi, provided he was the party in interest. Mr. Justice Daniel dis-

1 The opinion of Mr. Justice Daniel case of bonds given to an officer in his mentioned in note (a) seems to state the official capacity, ante, 349, n. 1. general rule, and the exception is in the

prosecuted against" a State, includes Dot only suits brought against a State by name, but those against its officers or agents, when the State, though not named, is in substance the real defendant. United States v. Beebe, 127 U. S. 338, 344; Hagood v. Southern, 117 U. S. 52; Poindexter v. Greenhow, 114 U. S. 270; Marye v. Parsons, id. 325, 330; Louisiana v. Steele, 134 U. S. 230; North Carolina v. Temple, id. 22; New Hampshire v. Louisiana, 108 U. S. 76; Chicago & N. W. Ry. Co. v. Dey, 35 Fed. Rep. 866; Sanford v. Gregg, 58 id. 620; see supra 256, note. In re Ayers, 123 U. S. 443, 515, Harlan, J., said in a dissenting opinion: "The result of former decisions is: That a suit against officers of the United States to recover property not legally in their possession, is not a suit against the United States; and that neither a suit against officers of the State to recover property illegally taken by them, in obedience to the statutes of the State, nor a suit brought against state officers to enjoin them from taking, under the command of the State, the property of a tax-payer who has tendered coupons for taxes due to her, were suits against the State within the meaning of the 11th Amendment of the Constitution. And now it is adjudged, in the cases before us, that a suit merely against state officers to enjoin them from bringing actions against taxpayers who have previously tendered tax-

receivable coupons is a suit against the State." See also United States v. Beebe, 127 U. S. 338, 344; Christian v. Atlantic & N. C. R. Co., 133 U. S. 233.

The Eleventh Amendment does not prevent suits against the counties of a State being brought in the Federal courts. Lincoln County v. Luniug, 133 U. S. 529.

The State must have a direct interest, pecuniary or otherwise, in the suit; and it is not the real party in interest when an injunction is sought, for unreasonableness, against the regulations of its railroad commissioners. Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 420; see Pennoyer v. McConnaughy, 140 U. S. 1. When a State proceeds as plaintiff, the Court of Claims has jurisdiction of its claim against the United States, if it arises upon an act of Congress. United States v. Louisiana, 123 U. S. 32; United States v. Alabama, id. 39. A suit by a State is subject to the conditions affecting the conduct of suits by ordinary litigants, and, if removed to a Federal court, proceeds in the same manner as a suit between individuals. Abeel v. Culberson, 56 Fed. Rep. 329; see Alabama v. Burr, 115 U. S. 413; Ames v, Kansas, 111 U. S. 449. A writ of error sued out by a State should be dismissed if the State is not a party to the record and refuses to submit to the jurisdiction of the court. South Carolina v. Wesley, 155 U. S. 542.

The question of jurisdiction depending upon the character and residence of parties, came again into discussion in the case of The Bank of the United States v. The Planters' {352} Bank of Georgia; (a) and it was decided that the circuit courts had jurisdiction of suits brought by the Bank of the United States against a state bank, notwithstanding the state itself was a stockholder, together with private individuals who were citizens of the same state with some of the stockholders of the Bank of the United States. It was declared that the state of Georgia was not, as a state, to be deemed a party defendant, though interested as a stockholder in the defence. The state, so far as concerned that transaction, was divested of its sovereign character, and took that of a private citizen; and this principle applies to every case in which the government becomes a partner in any trading company. (b)

We have seen how far the courts of the United States have a common-law jurisdiction; and it appears to have been wholly disclaimed in criminal cases; and the true distinction would seem to be, that all federal jurisdiction in civil and criminal cases must be derived from the Constitution and the laws made in pursuance of it; and that when the jurisdiction is vested, the principles of the common law are necessary to the due exercise of that jurisdiction. We have seen likewise, with what caution, and within what precise limits, the federal courts have exercised jurisdiction, in controversies between citizens and aliens, and between citizens of different states. In the next lecture we shall enter upon a particular examination of the powers and claims of the federal courts, relative to admiralty and maritime jurisdiction.

sented, and contended, on the authority of prior decisions, that the jurisdiction depended, not on the situation of the parties concerned in interest, but on the character of the parties appearing on the record.

(a) 9 Wheaton, 904; Bank of Kentucky v. Wister, 2 Peters, 318, S. P. In this last case it was decided that an incorporated bank was suable, though the whole property and control of the bank belonged to the state incorporating it.

(b) Story, J., 11 Peters, 349.